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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 >> D S Heath & Co (A Firm) v Layton [2002] EWCA Civ 747 (15 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/747.html Cite as: [2002] EWCA Civ 747

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM WIGAN COUNTY COURT
(His Honour Judge Urquhart)

		The Royal Courts of Justice The Strand London Wednesday 15 May 2002

Thursday 15 May 2002

1. LORD JUSTICE DYSON: This is an application for permission to appeal against the order of His Honour Judge Urquhart on 7 December 2000 whereby he dismissed an appeal against an order of District Judge Donnelly in relation to the enforcement of a judgment debt in favour of the respondent against the appellant, Miss Layton.
2. This litigation has had something of a complex history. I propose to summarise it as shortly as I can. On 29 February 2000, District Judge Donnelly awarded the respondent, DS Heath & Co ("Heath"), £1,564. In those proceedings Heath was claiming money allegedly due for work done for Miss Layton at her property in Wigan. The district judge arrived at the judgment sum by awarding Heath £1,764 for work done and deducting from that £200 as an award of damages on Miss Layton's counterclaim "to reflect the fact that the claimant wrongfully retained the defendant's keys and deprived her for a short period of access to her property and removed the fittings from her property when he had no legal right to do so." Miss Layton appealed against that decision but on 23 March 2000 Judge Urquhart struck out her notice of appeal without a hearing on the papers on the ground that, in his opinion, the appeal was bound to fail, there being disclosed in the notice of appeal no particulars of serious irregularity or mistake of law.
3. On 9 November 2000 District Judge Donnelly ordered the warrant of execution in relation to that judgment debt to be suspended so long as Miss Layton paid the balance of the judgment debt then outstanding by instalments of £5 a week, the first payment to be paid on 24 November. On the same day Miss Layton appealed against that decision on the ground that, first, there were defects in the original decision by the district judge to award Heath judgment and, secondly, because she could not afford to pay the instalments to which I have referred.On 7 December that appeal came on for hearing before Judge Urquhart. It seems that Miss Layton did not appear on that occasion and the judge dismissed the appeal. On 25 July 2001 Miss Layton served notice of appeal against the order of 7 December and coupled that with an application for an extension of time for appealing.
4. The grounds of appeal do not go to the validity of the order of 7 December. Rather, they recite Miss Layton's objections to the original order made by District Judge Donnelly on 29 February 2000 which gave rise to the judgment debt in the first place. As regards the reason for the need for an extension of time, the notice of appeal simply says, "There were court delays beyond expectation." It is true that Miss Layton tried in May 2000 to appeal to the High Court against the decision of Judge Urquhart of 23 March. She was advised that the only avenue of appeal was to the Court of Appeal. She then sought permission of the county court to appeal to the Court of Appeal but this was refused by Judge Urquhart on 9 July 2000. On 9 November 2000 she filed notice of appeal to the Court of Appeal but was told by the Civil Appeals Office by a letter of 24 November that she had no right of appeal to the Court of Appeal. On 4 December she filed notice of appeal in the High Court against District Judge Donnelly's order of 29 February, Judge Urquhart's order of 23 March and District Judge Donnelly's order of 9 November. These appeals came before Jack J, who on 12 March 2001 decided that he had no jurisdiction. He based himself on Article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 which states that second-tier appeals must be heard by the Court of Appeal.
5. This afternoon Miss Layton has been represented by Mr Southworth, a friend, who has presented arguments on her behalf with, if I may say so, considerable clarity and moderation. It is clear from what he has had to say that the real challenge which Miss Layton seeks to make is not so much to the decision which she has appealed against, namely the decision of 7 December 2000, but rather against the original decision of District Judge Donnelly to award judgment in the first place on 29 February. Mr Southworth has made a number of points as to matters which Miss Layton feels were defective about the proceedings before District Judge Donnelly on that occasion, and which it is said show that he arrived at a wrong decision.
6. It is said by Mr Southworth that there were procedural irregularities in that the McKenzie Friend who apparently was present at court on that occasion was not allowed to appear, whereas Heath was legally represented. A point is also made that some of Heath's papers were illegible -- seven documents, apparently -- although it seems that the district judge did not read these documents either. In those circumstances I simply do not see how the illegibility of those papers can in any way have impeached the validity of the decision made by the district judge. As to the alleged procedural irregularity in relation to the McKenzie Friend, on the sparse information before me all I can say is that there is no obligation on a judge to allow a litigant in person to be represented by a McKenzie Friend. It would seem from my reading of the district judge's judgment that the district judge was well able to understand the case that was being advanced by Miss Layton.
7. But more significant is the fact that, in order to get this application off the grounds, Miss Layton has to obtain a substantial extension of time. Given the rather lamentable procedural history to which I have referred, and in particular the fact that Miss Layton, no doubt to her great frustration, was being sent backwards and forwards by different courts, I accept that until 12 March 2001 there is ample explanation for the delay in seeking to challenge any of the decisions which she now would seek to challenge. The difficulty, as I see it, is that a period of more than four months elapsed between 12 March and 25 July when, as I have already stated, notice of appeal was first given against the order of 7 December. No explanation has been provided to me for that delay.
8. In deciding whether to grant an extension of time, I have to take into account these factors: first, that the delay was on any view a significant period of time; secondly, that no explanation has been provided to me for that delay, although I take into account that Miss Layton is a litigant in person; and, thirdly, the prospects of the appeal succeeding. On this last point it is to be noted that this is a second appeal. Section 55 of the Access to Justice Act 1999 provides that no appeal may be made to the Court of Appeal unless it would either raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. It is apparent to me that Miss Layton has real grievances about the original judgment in this case, but in my view, I am afraid to say, she cannot argue those grievances here, nor could she before the district judge on 9 November, nor (if she had appeared on that occasion) before Judge Urquhart on 7 December. The application and the appeal from the district judge's order of 9 November were concerned only with questions of execution of a valid judgment. It follows, therefore, that, sympathetic though I am to Miss Layton's position, she has not persuaded me that this is a case where there are any sufficient grounds for extending the time for appealing because I do not believe that she has met the rather stringent criteria laid down by section 55 of the 1999 Act.
9. Accordingly this application is dismissed.
ORDER: Application refused