Case No: B2/2006/2270(A), B2/2006/2270(B)

Neutral Citation Number: [2007] EWCA Civ 582
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(MISS RECORDER M READ)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 15th May 2007
Before:

LORD JUSTICE GAGE
and
LORD JUSTICE TOULSON

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Between:

	STEEL & ORS	
Appellant	
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NEWSERVICE LTD	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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The applicant appeared in person.

Mr D Lonsdale (instructed by Messrs Howard Kennedy) appeared on behalf of the Respondent.
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Judgment

Lord Justice Gage:

1.	Before this court this afternoon there are two applications made by Mr Whiteman, the applicant, who acts in person.  They are, first, an application for the court to receive fresh evidence on an appeal and, secondly, an application for the court to order disclosure.  Relevant to these applications is the history of the matter.  

2.	The applicant is one of three leaseholders of flats at 62 Upper Richmond Road, London SW14 8DA.  The respondent is the landlord.  The applicant seeks permission to appeal an order of Miss Recorder Read in the Wandsworth County Court dated 21 November 2005.  Before the Recorder there was a claim in respect of a Leasehold Reform Housing and Urban Development Act 1993 application.  It was dealt with by the Recorder on the basis of giving an answer to a question raised as a preliminary issue.  

3.	The short point before the Recorder at the trial was whether the respondent had served a counter-notice in response to the applicant’s notice under the Leasehold Reform Act 1993.  The Recorder held that the respondent had served the notice by means of delivery in the DX.  It appears to be the case, although the applicant now suggests that he has another remedy, that at that stage that brought to an end the applicant’s right to purchase the freehold of the property together with the two other leaseholders.  

4.	The applicant’s Notice of Appeal was entered on 26 October 2006.  It is accordingly eleven months out of time.  The delay appears to have been due to the fact that the applicant instituted proceedings under Section 24 of the Leasehold Reform Housing and Urban Development Act 1993 in the Lands Tribunal.  From the papers before us it appears that the Lands Tribunal found that it was bound by the Recorder’s decision in the county court that the counter-notice had been served.  Accordingly, the proceedings in the Lands Tribunal were dismissed on the basis that the matter was res judicata.  Their decision is dated 9 May 2006.  

5.	In his application for leave to appeal the applicant challenges the Recorder’s decision that the counter-notice was sent by the DX.  His case is that the Recorder’s decision was wrong.  He submits that although she held that the counter-notice was served by the respondent’s solicitors, in doing so she was wrong.  In fact, we have seen today a witness statement from Mrs Muller‑Carpenter, an employee of the respondents.  Apparently she gave evidence at the trial.  

6.	That witness statement, which was before the Recorder and was served before trial, is attached to a witness statement of Mr Rolfe Myer Roseman, a member of the respondent’s solicitors.  In his witness statement he states at paragraph 7:

“Mrs Muller‑Carpenter gave oral evidence at the hearing in the Wandsworth County Court and was cross-examined by the solicitor for the Appellant.  I was present on that occasion and heard her evidence.  I do not recall the Appellant being there.”

I interpose to say that today the applicant concedes that he was not present at the trial.  The paragraph of the witness statement continues:

“I can confirm that Mrs Muller‑Carpenter stated that it was she who sent the letter via the DX.  Far from suggesting that it was the Respondent’s then solicitors Jenkins O’Dowd & Barth who delivered the letter and Counter-notice, she stated that in fact she had arranged for a copy of the Counter-notice and of the covering letter to be delivered to Jenkins O’Dowd & Barth by hand.”

7.	Notwithstanding these documents and a reference in the Recorder’s judgment, to which I shall refer in a moment, the applicant still maintains that the letter was not served and was not served by DX for a number of reasons to which, again, I shall refer in a moment.  In  paragraph 3 of her judgment the Recorder said:

“May I say, first of all, that I accept that there was a counter-notice; that (as is shown in this bundle) a copy was hand delivered to Jenkins and…named at the bottom of the letter.”

That would appear to be a reference which is entirely consistent with the witness statement that we have seen of Caroline Muller‑Carpenter and the witness statement before this court from Mr Roseman.  Nevertheless, as I have already said that assertion and that evidence is challenged notwithstanding the facts found by the Recorder.

8.	The applicant, as I have indicated, applies for permission to appeal that judgment.  He has been refused permission to appeal on paper but renews his application orlly, not before this court as would be more usual, but to a full court for a hearing in June of this year.  For myself, I am not entirely clear why we cannot deal with both of these two applications but be that as it may we are seized today only with the application relating to fresh evidence and disclosure.

9.	In short, so far as these applications are concerned they are inter-connected. Mr Whiteman the applicant submits that we should order that the respondent’s former solicitors, Jenkins O’Dowd & Barth, should make a statement which indicates whether, when and how they received a copy of the counter-notice.  He further applies for the admission of fresh evidence in respect of that matter to be supplied in the witness statement to which I have referred.  The second part of both the applications for fresh evidence and for disclosure relates to an assertion by him that the respondents were not members of the DX at the relevant time and therefore could not have sent the counter-notice by DX, as was asserted in evidence at the trial.  So far as that matter is concerned, he has told us today that since June 2005 he had been tracking on the internet registration of the respondent and its associated companies with the DX company.  

10.	Before us we have a number of the letters put in by the respondent’s solicitors indicating that at the time of the service of the counter-notice there was an associate company of the respondents which was a member of the DX.  One of those letters is a letter dated 28 September 2006.  It is addressed to Miss Yvonne Page of Flex Investments Limited, the respondent, and it reads:

“I can confirm that your Company has been an active and continuing Member of the DX Network Services since February 1996 and our system does not show any cancellation of the Service of your Contract.  
“Should you require any further information on this or any other issue please do not hesitate to contact the Customer Support Centre.”

The letter is signed by Jenny Buckley, Customer Support for DX Network Services.

11.	In a skeleton argument of 17 December 2006 the applicant asserts the following:

“The fact that Flex Investments Ltd was not a member of the DX in May 2005 and so the counter-notice could not have been sent in the way Newservice Ltd claim.
“The fact that Newservice Ltd was not a member of the DX in May 2005.
“Disclosure by Jenkins O’Dowd & Barth of the date they received the counter-notice letter dated 12 May, if at all.
“The fact that Newservice failed to respond to the letter before action sent by Rodgers & Burton on 18th May 2005, if at all.
“The fact that the leaseholders received no response to their “Right to Manage” notice sent on 18th February 2005 stating that we planned to take over management of the property.
“The fact that the leaseholders received no response to several letters sent in connection with the right to manage notice.
“The fact that the leaseholders received no response to several letters sent between 2000 and 2005 querying the level of management fees.”

All are matters for which he seeks permission for such evidence to be admitted.  That is the basis for his application for an order of disclosure and it is also clear from what he has said to us today that that is the basis for his application for fresh evidence.

12.	It seems clear from what we have been told by the applicant today that before the trial before the Recorder there was a conference or discussion between him and his two co‑claimants and their solicitors.  He has frankly told us that at that stage a tactical decision was made as to how the case should be run.  At that stage he had, as he has told us, already been tracking the respondent’s membership and that of its associated company of the DX Network Services.  It would appear from that information that he was well aware that it might be relevant to his case as to how the counter-notice was actually served and whether or not it was served by DX.  He has, again, frankly told us that at that stage the decision was made to leave that point aside and to deal with the matter simply upon the basis of the assertion by his solicitors that they had never received the counter-notice.

13.	As I have already indicated, the applicant himself did not attend the hearing.  Accordingly, there can be nothing more than an assertion by him to contradict the evidence that was given to the Recorder by Mrs Muller‑Carpenter and which formed the basis for the finding of fact to which I have referred in the recital from the appropriate part of her judgment.  Accordingly, as it seems to me insofar as the matter relates to disclosure or fresh evidence in respect of Jenkins O’Dowd and Barth, all the matters upon which the applicant relies are matters which are not fresh evidence at all.  He was aware of all of those points before the trial and all of them could have been dealt with by means of cross-examination or by calling evidence.  None of that was done.  

14.	In the circumstances, in my judgment, so far as that application is concerned for disclosure and/or the receipt of fresh evidence, there is no merit in those applications at all.

15.	I turn to the specific application for disclosure from DX Network Services as to the history of which of the associate companies was at any given time members of the DX Network Services.  It seems to me again precisely similar considerations apply in respect to the applications in relation to that matter.  The applicant was well aware of the point.  He had been tracking the DX Network Services on the internet.  He could have attended trial and made the point himself in evidence.  Today there is no witness statement from him setting out what he discovered when he tracked that service on the internet.  There could have been such a statement from him but in my judgment, again, that would hardly be fresh evidence and it would be no reason for this court making an order for third party disclosure against DX Network Services.  

16.	It has to be remembered that this Notice of Appeal is already eleven months out of time.  The applicant will face, when the matter comes on for an oral hearing for permission to appeal, a considerable hurdle to be overcome in respect of the time element.  We are not sized with that matter and I make no further comment about it.  

17.	For my part, so far as these applications are concerned, in my judgment there is no merit in either of them and I would refuse them.

Lord Justice Toulson:  

18.	I agree.  At the risk of repetition, I would just add a word in relation to the appellant’s state of knowledge of relevant matters before the hearing in the county court against which he is seeking to appeal.  The respondent’s defence in those proceedings was served on 15 July 2005.  Paragraph 5 of the defence asserted:
“On or about 12th May 2005, the Defendant delivered a Counter-Notice to the document exchange addressed to the Claimants’ solicitors.  The Counter-Notice was served upon receipt.”
Disclosed by the respondents in their documents was a copy of the document appearing to have been signed by Caroline Muller‑Carpenter on behalf of Newservice Limited and served by DX.  
19.	Although, as my Lord, Lord Justice Gage, has pointed out, there is no statement in proper form from the appellant encapsulating the fresh evidence that he would like to adduce, he has taken us to his latest skeleton argument dated 10 May 2007 as setting out the evidence that he would like to give.  In paragraph 2(c) of that skeleton argument he asserts as follows:
“Newservice Ltd was not a member of the DX in May 2005 when they claim to have used the service to send the counter-notice.  It’s strange that the DX membership they claim to have used (box No. 58654 belonging to Chatfield Property Ltd) was transferred to Newservice in or around August 2005 (as the county court hearing approached).”
20.	In answer to questions from the court, Mr Whiteman explained that his source for that information was his own investigative work in tracking the DX website from July 2005, no doubt because that was the month in which the defence was served.  The witness statement of Caroline Muller‑Carpenter made her evidence on the point crystal clear, when she said that she sent the counter-notice addressed to the claimant’s solicitors at their document exchange address, which she identified, and it was no doubt with those matters in mind that Mr Whiteman told his solicitors the results of his researches.
21.	In his argument today he has suggested two reasons why that information was not used.  There was some suggestion that Mrs Muller‑Carpenter’s statement was interpreted as meaning that the document was served by her solicitors.  I find that a strange suggestion when one looks both at the document, which on its face did not come from solicitors or have any covering letter from solicitors, and more particularly at the plain language of a statement.  The second explanation was that the lawyers did not think it necessary to use it.  
22.	Whatever may be the explanation, what seems absolutely clear is that this evidence, which he now seeks to adduce, does not fall within the category of being evidence which could not have been obtained with reasonable diligence for use at the trial.  On the contrary: it was obtained, but not used.  
23.	In those circumstances, for the reasons given by my Lord, it seems to me that the application to adduce further evidence is hopeless, and the same applies to the application for disclosure by others, which is a roundabout route of trying to prove that which he knew before the trial. 

Order: Applications refused.