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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 >> Stein v Stein [2002] EWCA Civ 1609 (1 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1609.html Cite as: [2002] EWCA Civ 1609

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(Mr Justice Jacob)

		Royal Courts of Justice Strand London, WC2 Friday, 1 November 2002

1. LORD JUSTICE SIMON BROWN: The applicant is an unmarried lady of 51 plagued by ill-health. I am conscious of the fact that she is with medical support staff outside the court as I speak. I am told that she is in no position to enter court and that that will remain the case.
2. I am nonetheless refusing her application to adjourn today's applications and propose instead to dispose of them in her absence, for reasons which now follow.
3. She is one of five children of the late Beatrice Stein, who died over five and a half years ago on 25 January 1997. Mrs Stein divided her residual estate between her five children. It is still not wound up. What is preventing the family from winding up the estate is the fact that the applicant remains living in the former family home, a flat at 65 Marlborough Mansions, Cannon Hill, London NW6.
4. There is a very long history to this matter. It is unnecessary for present purposes to rehearse most of it. Eighteen months ago proceedings were brought in the Chancery Division between the applicant and her brother, Phillip Stein, the executor of their mother's estate. On 18 December 2001 Etherton J made an order by consent providing in great detail for how the flat should be marketed. The respondent contended that the applicant repeatedly broke that order by refusing access to prospective purchasers. She denied breaching the order and asserted, on the contrary, that it was the respondent who had breached it. At all events, he made an application to the court for a possession order.
5. That application came before Jacob J on 14 June 2002 and was heard in the applicant's absence. She had submitted medical evidence in support of an application for an adjournment, but the judge was understandably unwilling to take that course. Where matters have been as long delayed as this and where there had already, even before then, been a history of the applicant's non-attendance at court through ill health (see, for example, page 3 of Dr Davies' medical report of 5 February 2001 at page 208 of the bundle) it is simply not appropriate for a litigant in person to be allowed to drag them out still further by seeking adjournment on medical grounds, however genuine their disabilities may be. In the result the judge on 14 June ordered:

"(1) that the Appellant's application by fax for an adjournment be refused

(2) that CONDITIONAL UPON the Respondent giving 24 hours written notice served by placing in the letter box, the Appellant do permit the Respondent and/or Estate Agents instructed by him to enter the premises known as 65, Marlborough Mansions, Cannon Hill, London NW6 at any time between the hours of 9.00 am and 5.00 pm daily except (Saturdays) for the purposes of preparing sales material and showing prospective purchasers the entire premises

(3) that the Appellant do give vacant possession of the said premises within 14 days after the sale or exchange of contracts

(4) that the Appellant has the right, within 3 days of service of this Order upon her to apply to have this order set aside or stayed."

6. Following that order, both sides made applications. The applicant applied for it to be set aside, the respondent sought an order for possession on the ground that (he asserted) the applicant had again breached it by refusing to allow estate agents and prospective purchasers into the flat on four occasions.
7. Those applications came before Jacob J on 5 July, and there are before me ten pages of transcript describing the course of that hearing. It is sufficient to state that the applicant arrived a little time after the hearing had begun and that the judge, having then listened to her, made it plain that the respondent, as the executor, really had to sell this property and that, frankly, was that. In the result he dismissed her application to set aside his previous order. On the respondent's application he ordered as follows:

"that the Defendant [that is the applicant] must on or before Monday 5th August 2002 give the Claimant possession of the property [which is then described] (but such period can be extended with the consent of the parties) [and] that provided the Defendant at or before close of business on Wednesday 10th July 2002 do nominate either one or two firms of Estate Agents then such Estate Agents as are nominated by the Defendant be used to carry out the sale of the said property  . . .  "

8. It is against the orders of 14 June and 5 July that the applicant now seeks permission to appeal. Her grounds of appeal are set out at page 10 of the court's bundle. I need not read them. Essentially they complain that Jacob J took insufficient account of Etherton J's consent order of 18 December 2001, of the applicant's submissions and of how ill she was. She asserts too that there was no urgency to selling this property and that in any event there is reason to think that her brother, the respondent, an undisclosed bankrupt, will not sell at the best obtainable price.
9. In my judgment there is nothing of any substance in any of these grounds. On the contrary, it seems to me that the applicant's attitude towards these proceedings throughout has merely emphasised the need for clarity and finality to bring this long and unhappy saga to a close. Entirely consistently with her behaviour throughout, the applicant has been making ever more strenuous applications to adjourn today's hearing: a hearing which, I may note, was fixed following protracted earlier correspondence between the applicant and the Citizens Advice Bureau (who were assisting her) and the court, following which the matter was removed from the court's dismissal list on 25 September 2002.
10. The applicant sought an adjournment of today's hearing at the beginning of the week. I refused it. Yesterday she sent a 15-page handwritten letter again urging me to adjourn the hearing. Having painstakingly read the letter, again I refused the application. Today she renewed her application in writing before the court sat and again it seemed to me that it would be wrong to accede to it. I repeat what I said at the outset: I am conscious of the fact that she has actually attended court but is unfit to appear and advance argument. I should say that it seems to me inconceivable, on the many documents that I have read, that she could in fact add anything of any value to her cause, such as would lead me to take a different view of the merits of her case.
11. Let me, with regard to her continuing applications to adjourn, read just one part of a communication received by the court this very morning:

"The Doctor further advised that the various other symptoms I am suffering (which are all caused by injury) worsen under stress. When I have a traumatic stress reaction I am in additional pain: I sleep less: I think less clearly and many other problems some so damaging as to threaten my life.

The worsening post-traumatic stress reactions, which have been disabling and frightening and humiliating for me.

These have been damaging and have occurred in Court and elsewhere. They have been related to threats and to continuing Court appearances in two Courts; and surrounding stresses. I am now unable to attend Court without detriment.

 ....   .... 

I sought advice from two leading Trauma Specialists. They have both advised that I should be allowed to avoid the stresses which are particularly triggering the reaction for a time, in order to obtain treatment to address the underlying damage which has initiated it."

12. Essentially, it will be seen, the applicant seeks to postpone any further legal process towards the realisation of this property until after her health improves, whenever that may be. She has had, as I repeat, assistance from the Citizens Advice Bureau in this building. I note that she makes complaint about their understanding of her case and the contribution they have made on her behalf. Justice requires that the court has regard not only to the applicant's interests but also to the interests of those who are concerned in the winding-up of her late mother's estate, which she has thwarted for so long and thus far so successfully. It is just not right to allow a party to litigation, by acting in person and relying upon her ill-health, however genuinely, to obstruct the processes of justice. On 5 August 2002 the applicant obtained from the county court without notice a stay upon Jacob J's order of 5 July which required her to give up possession on 5 August. This simply cannot go on.
13. Of course one is sympathetic towards women who are required to give up their occupancy of a long-enjoyed family flat, not least when they suffer, as this applicant does, from ill-health. Sympathy, however, cannot decide cases of this nature. I have no doubt that the only proper course for the court to take today is to refuse to adjourn this matter. On the contrary, I dismiss these applications.

ORDER: Applications refused. Copies of the transcribed judgment to be sent to both parties at public expense.

(Order does not form part of the approved judgment)