A2/2002/0050/C, A3/2002/0432/B, A3/2002/0432/C, A2/2002/0580/D
Neutral Citation Number: [2002] EWCA Civ 1446
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE HART)
		                          	 Royal Courts of Justice
                                         The Strand
                                         London
Wednesday 2 October 2002

B e f o r e:

LORD  JUSTICE  CHADWICK

B E T W E E N:

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VICTOR  SAMUEL  TASSELL
Applicant/Claimant

and

NATIONAL  WESTMINSTER  BANK  PLC
Respondent/Defendant

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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)

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THE APPLICANT appeared in person

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J U D G M E N T
Wednesday 2 October 2002
LORD JUSTICE CHADWICK: 
1.	There are listed for hearing before me four applications. First, application 2002/0050/C, is an application on the part of Mr Victor Samuel Tassell to reinstate applications 2002/0050, 0050/A and 0050/B, which were refused at an oral hearing before me on 17 July 2002 in his absence. Second, an application 2002/0432/B by Mr Tassell to reinstate applications 2002/0432 and 0432/A, which were also refused at the same hearing. Third, an application 2002/0432/C by Mr Tassell for a direction that a question be referred to the European Court of Justice under Article 243 of the Treaty establishing the European Community. And fourth, an application 2002/0580/D by Mr Tassell's wife, Mrs Marie Hetty Tassell, to reinstate applications 2002/0580, 0580/A, 0580/B and 0580/C, which were refused at the hearing in July to which I have already referred. 
2.	Mr Tassell has appeared in person this afternoon with a Mackenzie friend, Mr Straker, and has presented his case with courtesy, dignity and moderation. Mrs Tassell has not appeared this afternoon. Mr Tassell has provided me with a medical certificate which indicates that she should refrain from work for a period of two weeks from 24 September 2002. In due course I shall have to return to consider whether to deal with her application today.
3.	Before addressing the listed applications, there are two preliminary matters to which I should refer. Each of the applications 0050/C, 0432/B and 0580/D seeks a direction that the hearing for reinstatement should be listed before a full court of the Court of Appeal. The applications for a hearing before full court was referred to me, as one of the Lord Justices appointed to supervise Chancery appeals, for a direction on paper. Those applications were refused on the ground that I could see no reason why the listed matters could not properly be heard by a single Lord Justice sitting in open court. That decision was communicated to Mr and Mrs Tassell by a letter from the Civil Appeals office dated 9 August 2002. They were told in that letter that the application for listing before the full court could be renewed before a single Lord Justice at an oral hearing pursuant to CPR 52.16(6); and that if that renewed application were made and refused, the single Lord Justice might well decide to proceed to hear the applications to reinstate. 
4.	The application for a listing before the full court has not been renewed before me, so I need not address it further. But I should perhaps point out that section 54(2) of the Supreme Court Act 1981, as amended by section 59 of the Administration of Justice Act 1999, provides that a court exercising civil jurisdiction in the Court of Appeal shall be duly constituted for that purpose if it consists of one or more judges. I am satisfied that the present applications can be, and should be, considered by a court comprising one Lord Justice.
5.	The second matter that I should mention is that Mr Tassell in correspondence with the Civil Appeals Office, took the point that I should not hear his applications to reinstate in the circumstances that I had already heard and given a judgment upon the application on 17 July 2002 in his absence. He was concerned also that I had refused an earlier application upon paper for permission for Mr Dick Chitole -- a litigant familiar in these courts -- to address the court on his behalf. He was told on 10 July that there was no objection to him having the assistance of a Mackenzie friend to act in accordance with the usual guidelines. He was told on 15 July that his application could be renewed on 17 July. In the event he has had the assistance of a Mackenzie friend; although not Mr Chitole. Mr Straker has addressed me on certain points upon which he and I felt that Mr Tassell could benefit from his assistance. 
6.	I have been asked by Mr Straker to consider adjourning the applications to reinstate either so that Mr Tassell can obtain pro bono assistance from the Bar Pro Bono Unit; or so that I might request the assistance of an advocate to the court. I have not thought it right to take either course. 
7.	The problem which Mr Tassell needs to confront is that this is an application to reinstate applications for permission to appeal which have already been refused for the reasons set out in a judgment which I delivered on 17 July 2002. That is a full judgment; and it should be read in conjunction with the judgment which I am now giving. On 17 July I directed that a transcript of my judgment that day be provided to Mr and Mrs Tassell so that they would know the reasons for the order which I then made. That has been done. 
8.	The first requirement is for Mr Tassell to provide some explanation as to why he or his wife were not able to be present on 17 July. That requirement stems, as it seems to me, from the following provisions of the Rules. CPR 23.11 provides that where the applicant fails to attend the hearing of an application, the court may proceed in his absence. But subparagraph (2) of that Rule enables the court on a subsequent application to relist the application which was made and disposed of in the absence of the applicant. CPR 39.3(5) provides as a general guide that where a party fails to attend a trial, the court may set aside any order that it made at the trial if three conditions are satisfied; first, that the party acts promptly when he finds out that the court has proceeded in his absence; second, that he had a good reason for not attending the trial; and third, that he has a reasonable prospect of success at the trial. The same principles, as it seems to me, must guide the court in deciding whether or not to relist an application which it has dealt with under CPR 23.11(1). The reasons are obvious. First, an applicant who has not attended on an application ought not to be heard unless the court is satisfied that there is some good reason why he has not attended. The business of the courts could not proceed in an orderly and efficient manner if applicants could choose whether or not to attend; expecting that failure to attend on one occasion would lead automatically to the right to a hearing on some later occasion. Second, there would be no purpose in relisting an application for rehearing so that the applicant can address the court unless persuaded that the applicant has a reasonable prospect of success; because if the application has no reasonable prospect of success, a further hearing would be of no purpose. 
9.	The material which Mr Tassell put before me in advance of this hearing did not include any reason why he was unable to attend on 17 July. As explained in my earlier judgment, he or someone on his behalf had telephoned the Civil Appeals Office in the morning of that day to explain that he would not be present at 10.30 when the matter was listed, but was expecting to arrive at about 11.30. The court sat both at 10.30 and at 11.30 in the expectation that he would be present that morning. He has explained to me today that the reason he could not attend on 17 July was that his wife was unable to come with him -- because she felt too anxious to appear -- and that he himself could not leave her alone in those circumstances. I am prepared to accept from Mr Tassell, for the purposes of the application today, that he was in a position in which he could not either leave his wife or ask her to accompany him on 17 July. It would have been helpful if the explanation had been put in the material with the other papers. 
10.	His second task is to persuade the court that he has a reasonable prospect of succeeding on his applications for permission to appeal. The difficulties which he faced on 17 July are set out in the judgment which I gave on that day. I will not rehearse them in detail. It is sufficient to mention that his application 0050 and his wife's application 0580 are applications for permission to bring a second appeal which would need to surmount the hurdles imposed by section 55(1) of the Access to Justice Act 1999 and CPR 52.13. The applications in 0432 faced a different problem. They are applications for permission to bring a first appeal; but insofar as the causes of action were personal to Mr or Mrs Tassell, those causes of action had vested in the Trustee in Bankruptcy who did not wish to pursue them. Insofar as the causes of action were vested in the company which Mr Tassell formerly controlled, he (as a bankrupt) is not in a position to act on its behalf. Those were points identified in my earlier judgment. They remain to be confronted on any application to reinstate. 
11.	Mr Tassell has not really sought to confront those points. He feels strongly -- and I have no doubt sincerely -- that the debt upon which bankruptcy orders were made against himself and his wife was not a debt which he or she ever owed to the petitioning creditor, National Westminster Bank. The difficulty in his way is that the debt is a judgment debt in respect of which he sought permission from this court to appeal in 1999. Permission was refused. The history is set out in the judgment of Hart J, and in my earlier judgment. 
12.	Mr Tassell feels strongly that he has never had a full or fair hearing with disclosure. The judgment against him was a summary judgment and was made without disclosure having taken place. As Hart J pointed out, that has left Mr Tassell with an understandable sense of grievance. But it was a grievance which he had the opportunity to pursue, and did pursue, in the Court of Appeal when he came before Evans and Sedley LJJ in October 1999. He suggests to me that their decision was flawed because of perceived bias on the part of one member of the court. But there is no material to support an allegation of that nature. 
13.	Mr Tassell seeks to re-argue the question whether or not he was indebted to the bank. He seeks to do that with the assistance of further evidence, including documents obtained from the Stevenage Land Registry. He seeks to rely on those documents in support of a contention that the legal charge under which the bank appropriated the proceeds of sale of the charged property to his company's debt was not enforceable by reason of the Consumer Credit Act 1974 and regulations made under that Act. The difficulties are, first, that the material upon which he now relies is material which he could, had he obtained it from the Land Registry, have put before the judge and the Court of Appeal at that time; and second, even if he had put that material before the court, it would not (or at least not self-evidently) have led to the conclusion which he now urges. The question, I think, is whether or not an all-monies charge taken in conjunction with a collateral agreement to limit the amount of borrowing facilities to the company is to be treated as a regulated agreement under the Act.
14.	Mr Tassell could have put those materials before the Court of Appeal in 1999 if he had them; and he could have put those materials before Robert Walker LJ sitting in the Court of Appeal when he sought permission to appeal against the orders refusing to set aside the statutory demands in this case. He has explained to me that the bank ought to have disclosed that material to him and that he did not appreciate until recently that he either could or should obtain it. But it was there to be obtained. And it was always plain, first, that it must exist, and, second, that the bank had not disclosed it. 
15.	Mr Tassell, understandably, wants to reopen the matter. But on an application for permission to bring a second appeal against Hart J's refusal to set aside the bankruptcy order, that is not something which the court can allow him to do. Whether or not the material upon which he now seeks to rely would have had any effect on the decision in 1999 (and I give no encouragement to the view that it would), it is not now open to Mr Tassell to bring it before the courts. Litigation has to be conducted on the basis that there is finality; as Pill LJ explained to Mr Tassell on an earlier hearing in this court. 
16.	My decision will be unwelcome to Mr Tassell; but it should not come as a surprise in the light of the judgments which have already been given in this court on the various applications that he has made.
17.	There is nothing in the material that he has put before me to suggest that Jacob J was wrong in the order which he made in the proceedings which are the subject of application 0432, or that an appeal from the order of that judge would have any real prospect of success. 
18.	I turn to Mr Tassell's application for a direction that a question be referred to the European Court of Justice. Mr Tassell was not able to explain to me what question this court would need to decide in order to reach a conclusion on his present applications cannot be resolved without the assistance or guidance of the European Court. In general terms he says that the Banking Acts and Regulations are made pursuant to EC Directives and that the banks should not be allowed to act oppressively. That is uncontroversial; but it does not identify any question which could properly be put to the European Court, or which, as it seems to me, arises in dealing with the narrow issues which arise on the applications which are now before the court.
19.	Finally, I return to Mrs Tassell's application. As I have indicated, Mrs Tassell has not attended this afternoon. Mr Tassell told me on one occasion that his wife was unable to understand why he was continuing with the case at all; on another occasion he told me that she became very upset in relation to the matters which arose in this case, which I fully understand. Nevertheless, he urged that she ought to have an opportunity to put the matter to a court in her own words. 
20.	My examination of the papers in this case suggests that everything put before the court on her behalf has been put in words for which Mr Tassell has chosen. Mr Tassell does not dispute that. Further, I have some doubt as to whether, if she were to attend, she would wish to do so without the assistance of her husband who would wish to speak on her behalf. I would hesitate before dealing with her application in her absence if I felt that there was a real prospect that she would be able to attend and address the court independently on matters on which Mr Tassell has not already addressed the court during the course of a lengthy hearing this afternoon. I have reached the conclusion that there is very considerable doubt whether she would in fact attend if I adjourned this hearing. I do so in the circumstances that there have already been two opportunities to attend which she has not been able to take. Further, I have very considerable doubt whether she would in fact add anything -- except her own strong sense of grievance -- to the matters which Mr Tassell has addressed today. I take for granted her own strong sense of grievance. It is unnecessary for her to come here to tell the court of that. 
21.	In the circumstances I am satisfied that no useful purpose would be served by an adjournment which will simply prolong the stress and uncertainty caused to her by these proceedings. I do not propose to adjourn her applications under 0580. I will dispose of them under CPR 23.11 in the same way as I have disposed of Mr Tassell's application under 0050. For all practical purposes the applications are identical. 
22.	For those reasons the four applications made this afternoon are refused. 
23.	I have been asked to direct a transcript at public expense. In the circumstances that Mrs Tassell has not been present when her application has been refused -- and because it does seem to me important that she should have a record of the reasons which I have given on this occasion as well as the reasons which I gave on 17 July -- I accede to the request that a copy of the transcript of my judgment be provided to Mrs Tassell. I hand back the original of the sick note.