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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnes v Uttlesford District Council [2001] EWCA Civ 696 (3 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/696.html Cite as: [2001] EWCA Civ 696

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF APPEAL CIVIL DIVISION
(MASTER VENNE)

		Royal Courts of Justice Strand London WC2 Thursday, 3rd May 2001

Thursday, 3rd May 2001

1. LORD JUSTICE KEENE: This matter was listed for hearing before me today. At midday as a result of a message received from the applicant I stood the matter out until 3.30 this afternoon and directed that he be informed that if he did still require an adjournment on the grounds of his health he should fax a medical certificate to the Civil Appeal List Office before 3.30 this afternoon.
2. The position is that it is now 3.45. The applicant has faxed to the office a letter signed by a Dr Hardwick of Church Street, Bishop's Stortford, bearing today's date, saying in respect of the applicant, this:

"This 45 year-old man came to see me today with a recurrence of his lumbar pain. He feels unable to attend court this week. I have prescribed analgesia and referred him for physiotherapy."

3. That is the total content of that letter.
4. The first thing which needs to be said is that that letter from his doctor does not say that in the doctor's judgment the applicant is unfit to attend court. It merely records that the applicant himself feels unable to attend court. That is not enough in a situation such as this. Secondly, I observe that the applicant, who lives at Latton Green, Harlow, was apparently able to get today to his doctor's surgery in Bishop's Stortford; that is no small distance. Someone who is able to travel that distance to attend his doctor's surgery is likely to be able to attend at court.
5. In all the circumstances I am not prepared to adjourn this matter because of the alleged illness of the applicant. That conclusion of mine is reinforced by the fact that I have read the papers and can see very clearly such arguments as Mr Barnes wishes to put forward on this application. I add that there was also a note received by the list office which indicated that Mr Barnes wanted an adjournment of today's hearing on a quite different ground, that is to say that he was too busy because of a hearing in another matter which he has listed for tomorrow. To my mind that provides no proper basis for adjourning this case today.
6. Today's hearing concerns a limited point but arising out of a matter of some antiquity about which Mr Barnes is fully informed. It would not require a great deal of preparation on his part to deal with today's application.
7. In those circumstances that application on that quite different basis for an adjournment is also refused.
8. I turn, therefore, to the substance of this application. As a matter of form Mr Barnes seeks permission to appeal against an order of Master Venne on 15th February 2001 whereby the Master refused an application to reinstate this case, No.C/2000/2915.
9. The matter has a complex history, but, putting it as briefly as I can, there was a case stated by magistrates following a complaint by the applicant about a BMW car which had been distrained upon for non-payment of council tax. Laws J (as he then was) dealt with the case stated nearly four years ago, on 4th July 1997. He ruled that the applicant was not entitled to use the car in his trade because it was not licensed and such use would be a criminal offence. Consequently it was not protected from the levying of distress by the bailiff.
10. Mr Barnes then made two applications to the Court of Appeal. The first was on the basis that the proceedings were a criminal cause or matter, in which case he wanted a point of law to be certified so that he could seek permission to appeal to the House of Lords. The second application was on the basis that this was a civil matter, in which case he sought permission to appeal to the Court of Appeal.
11. These two applications came before the Court of Appeal constituted by Simon Brown and Longmore LJJ on 8th February 2001. Mr Barnes appeared in person. The transcript of the judgment of Longmore LJ with which Simon Brown LJ agreed, shows that Mr Barnes contended that while he had had sufficient notice of the hearing of his application on the criminal matter he had not done so on the civil matter. Longmore LJ said this (at paragraph 3 of his judgment):

"He"

- the applicant -

"has applied for the application in relation to the civil matter, if it be one, to be adjourned. We must refuse that application because both these matters arise from the single judgment and Mr Barnes knows very well the matters that do arise."

12. The Court of Appeal then proceeded to deal with both applications. It concluded that it had no jurisdiction to deal with the matter, if it was a criminal cause or matter, and so it dismissed that application. It refused permission to appeal on the civil matter because of the provisions of section 28A of the Supreme Court Act 1981, dealing with where a case has been stated for the opinion of the High Court under section 111 of the Magistrates' Court Act 1980.
13. Section 28A(4) provides as follows:

"Except as provided by the Administration of Justice Act 1960 (right of appeal to the House of Lords in criminal cases), a decision of the High Court under this section is final."

14. The Court of Appeal concluded that that prevented it from having any jurisdiction to consider any appeal on case stated in a civil matter. It therefore dismissed that application.
15. Mr Barnes's present application concerns the civil matter which was before the Court of Appeal on that occasion. He contends that on 8th February 2001 he did not come prepared to deal with that case and did not have the relevant papers with him because he had not been notified that that case would be heard; therefore he did not receive a fair trial.
16. These points were no doubt all ones which he made when he sought an adjournment from the full court on 8th February 2001. Certainly they were points which he could, and should, have made on that occasion if he wished to do so. He does not seek to rely on fresh evidence not available to him then. In its discretion the full court on that occasion refused his application for an adjournment. I can see no basis for regarding that exercise of discretion as improper. The matter with which the applicant had to deal was essentially the same matter as that with which he was prepared to deal; it was merely that in the one case it was characterised as a criminal matter, and in the other case it was characterised as a civil matter. In any event it would require some evidence of a striking kind not available to the court on that occasion to justify re-opening this matter. No such evidence has been put before me.
17. In addition, I am quite satisfied that the decision on the substance of the case on that occasion was plainly right and indeed inevitable. Section 28A(4) is an insuperable barrier to any appeal to the Court of Appeal in civil proceedings. Nothing which Mr Barnes could have said then, or seeks to say on paper now, or could have said orally before me, had he chosen to attend today, has any prospect of overcoming that barrier.
18. It follows that this application to overturn the order of Master Venne must be dismissed.
(Application dismissed; no order as to costs).