Case No: B4/2008/0622
Neutral Citation Number: [2008] EWCA Civ 829
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE BRIGGS)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 5th June 2008

Before:

LADY JUSTICE ARDEN, DBE
and
LORD JUSTICE WALL

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	MOMSON	Respondent/
Claimant
	
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AZEEZ	
  Appellant/
  Defendant

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(DAR Transcript of 
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Mr C Umezuruike (instructed by John & Co) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lady Justice Arden:  

1.	We have before us applications to appeal from the order of Briggs J dated 7 March 2008 and, in addition, an application for permission to appeal from the order of HHJ Marshall QC dated 30 January 2007.  Her Honour was sitting in the Central London County Court.  I will take each application separately but start with a general description of the background.  As this is only an application for permission to appeal I do not intend, obviously, to go into the matter in great depth, but I would like to pay tribute to counsel, who has only recently been instructed in this matter, and thank him for the assistance he has been able to give to this court. 

2.	The position is that this action is a claim brought by the claimant against the defendant, who is the appellant before us, seeking to establish that there was a common intention constructive trust in relation to a large number of properties.  The defendant put in a defence and counterclaim which neither we nor counsel have seen.  He also put in a witness statement and gave a certain amount of disclosure.  On 24 October 2006 he was adjudicated bankrupt but that bankruptcy was annulled on 1 March 2007, and therefore I propose to say no more about it.  The court, of course, would have had power to stay the proceedings if it thought that was appropriate in the light of his bankruptcy but the court did not make that order.

3.	The parties are both Nigerian by birth.  The appellant was concerned in politics in Nigeria and he may also have had business connections there, and therefore spent a certain amount of time out of this country.  It is sufficient for me to say that on 15 December 2007, the defendant -- that is, the appellant -- was ordered by consent to file a response to an outstanding request for further information by 22 December 2007, and to give detailed disclosure in relation to the properties in issue, including the conveyancing files and other documents, by 12 January 2007.  In fact, the appellant was in Nigeria from the end of November until January 2007.  There is evidence that he was indisposed for part of that time but the judges below took the view that that did not have a material impact on the conduct of the proceedings.

4.	On 9 January 2007, HHJ Cowell, sitting also in the Central London County Court, made an order on paper.  It was an “unless” order against the appellant to provide documents within three days; that is, by 12 January.  That order was not complied with.  The defendant made an application on 17 January that he should be able to defend the action but that application was not heard until the start of the trial, when it was rejected by HHJ Marshall by her judgment of 29 January 2007.  We have not seen a copy of that judgment, it is partially summarised in her later judgment.  It was seen by the judge and it is unfortunate that it is not available today.

5.	The judge, therefore, made a barring order at the start of the trial, and the effect was that the appellant was present during the trial but took no part.  His witness statement was not, as I understand it, in evidence.  He conducted no cross-examination of the claimant or any other witness and made no submissions.  At the end of the trial HHJ Marshall declared that the parties held 56 Watcombe Road, South Norwood on trust for the claimant absolutely but that the defendant held some ten other properties registered in his sole name for the benefit of himself and Ms Momson as tenants-in-common in equal shares.  In other words, the defendant very substantially lost the action.

6.	The defendant then appealed all the orders which I have mentioned in the Central London Court to Briggs J.  Briggs J could not deal with the substantive order of 30 January made by HHJ Marshall; he did, however, give permission for appeals against the order of HHJ Cowell dated 9 January 2007 -- I am not concerned with that matter because it is not pursued before this court -- and the order of HHJ Marshall dated 29 January 2007.  Briggs J considered that HHJ Marshall had not properly considered the matters in CPR 3.9 and that therefore he had to do so himself.  He went through each of those matters in turn and came to the same conclusion as HHJ Marshall and therefore dismissed the appeal against her order.

7.	In particular, in relation to CPR 3.9(1)(a), “the interests of the administration of justice”, the judge held that weight had to be given to the fact that the appellant had not complied with orders of the court.  As to CPR 3.9(1)(b), he held that the application had been made promptly but the appellant had taken no steps to have the application heard before the first day of the trial.  He noted in relation to CPR 3.9(1)(c) that the judge had found that the failure to comply was intentional; it was obviously a significant matter.  In relation to CPR 3.9(1)(d) he held that the judge had found that there was no good explanation for the failure to comply with the order as found by the judge.  In relation to 3.9(1)(e) he found that there had been a history of failure to comply with orders of the court.  He found in relation to 3.9(1(f) that the failure to comply was the defendant’s alone.  And in relation to factors (g) and (h) in CPR 3.9 he held that the trial date would have to be vacated if relief was granted.  He then held at paragraph 23 of his judgment: 

“The trial, without the defendant’s proper disclosure of documents, but with the defendant being permitted to defend and give oral evidence, would have been manifestly unfair to the claimant.  The defendant had custody of most of the relevant documents.”

The judge did not further explain what he meant by “the defendant being permitted to defend and give oral evidence.”

8.	The judge then considered CPR 3.9(1)(i), “the effect of the granting of relief on either party”, and he said he was prepared to assume that the list might have been shorter than necessitating an adjournment of several months, but it would have been a substantial adjournment.  He held that the prejudice to her was not likely to have been fully compensated for by a costs order, even considering that the defendant had an undoubted equity on her case in 50% of the properties.  

9.	The judge bore in mind that the consequence of not giving relief was that the defendant was not able to attend the trial in which the principal plea in issue was whether there had been between him and the claimant an agreement or an understanding that the properties purchased during their relationship should be jointly owned: that is at paragraph 26.  But, of course, the defendant was not debarred from attending, only debarred from defending, and he did, as I understand it, attend the trial.

10.	In paragraph 27 Briggs J concluded: 

“…having balanced all of those considerations together, and having in mind throughout the overriding objective that cases should be tried justly and fairly, in my judgment the balance comes down firmly against granting relief from sanctions to the Defendant.”

He then said:

“[The appellant] was truly the author of his own misfortune and it is not an injustice that a person who has conducted himself in that way in advance of a long, pre-arranged trial finds himself debarred from defending proceedings, when the consequence of that conduct is that he has failed to provide essential disclosure of documents ahead of trial.”

11.	The judge obviously gave very careful consideration to all of the matters listed in CPR 3.9 but he did not make separate mention of Article 6 of the European Convention on Human Rights, on which counsel relies, nor did he refer to the authorities such as Hadkinson v Hadkinson [1952] All ER 567, which counsel has also drawn to our attention, though as I see it those cases are of less importance on this particular matter than Article 6.

12.	The appellant has filed a supplemental statement and has said, by way of example of the effect of the order, that: 

“…the Appellant was denied the opportunity of rebutting allegations of coercion and undue influence (allegations which were central to the ownership of some houses and which did not require the undisclosed documents to prove or disprove).” 

13.	The position, as I see it, is that the claimant’s case was that there was a common understanding in this case that the claimant was responsible for, and would pay, all the outgoings on the home, including the food, leaving the defendant free to use his monies on the acquisition of various properties, and that there therefore was a question as to what extent the documents which the appellant had been ordered to produce were going to be required for the purposes of doing justice on that issue.  

14.	In those circumstances, it seems to me that there is a real prospect of success made out on certain limited issues.  I say “on certain limited issues” because this is a second appeal.  That means that there must be an important point of principle or practice, or that there must be an important reason for giving permission.  As I see it, the issues which I am going to identify would be important points of principle, and in addition I bear in mind that the effect of the judge’s order in this case was very serious for the appellant, and the judge’s conclusion resulted in a substantial financial adverse result for the appellant and also included some findings which were of a serious personal nature so far as he was concerned.  While, of course, the judge would not have known that at the time she was considering the order of 29 January, it would have been clear from the pleadings that this was a serious case so far as the appellant was concerned, given that the claimant was effectively claiming half or more of the whole of his investment assets.

15.	The issues for which I would give permission would be as follows.  First, was the judge clearly wrong in holding, at paragraph 23 of his judgment:

“The trial, without the defendant’s proper disclosure of documents, but with the defendant being permitted to defend and give oral evidence, would have been manifestly unfair to the claimant.”?

16.	The second point of principle that seems to me to arise is: was the judge required by Article 6 of the European Convention on Human Rights or for any other reason to consider whether the order was proportionate?  And thirdly, it seems to me the following issues arise: was the judge required by Article 6 or for any other reason to consider the case in the round and, if so, did he do so?  I have, of course, in mind paragraph 27 of the judgment of the judge, to which I have already referred.  But I would draw attention, at the risk of solipsism, to a passage in the judgment which I gave in a case called CIBC Mellon Trust Ltd v Stolzenberg [2004] EWCA Civ 827 at paragraphs 154 and 155 in which at the end I say, having gone through the checklist in CPR 3.9: 

“…the court is then also required to stand back and form a judgment to the aggregate of the relevant circumstances that have been identified in going through the list to see whether it is in accordance with the overriding objective in the CPR to lift the sanction.  The overall ‘look see’ is simply the overriding objective in action.”

17.	For my part, I would give permission for a second appeal on those three limited issues.  

18.	I want to make one further point, and that is that we have not seen the judgment of 29 January 2008, which was the order of HHJ Marshall debarring the defendant.  That order should be obtained without delay.  I have relied on the analysis of it in the judgment of the judge, and it should be filed.  And in addition, I would direct a skeleton argument addressed to those issues within 21 days.

19.	Now there is a separate application for permission to appeal against the order of HHJ Marshall of 30 January 2007.  I have already summarised that judgment.  Counsel has had to work against time to produce grounds of appeal, which he has done in his second supplemental skeleton argument of 5 June.  Speaking for myself, I am very grateful to him.  He identifies a point about non es factum and also about a point about perversity and also as to the nature of the agreement as to whether or not it could truly be said that 56 Watcombe Road was to be owned by the claimant absolutely.  

20.	For my part, the way I see that matter is this: the appeal against the substantive judgment of HHJ Marshall would not arise if there was a successful appeal against the order of Briggs J on the issues which I have identified, assuming as I do that the appellant would then ask for the matter to be remitted for a retrial at which he was able to participate in some way.  

21.	In those circumstances, and given that the appellant has had to work against time because of a change of solicitors, I adjourn that application to come on with the appeal for which I give permission, if my Lord agrees, on this basis: that the appellant will file a separate skeleton argument and Grounds of Appeal setting out all the grounds on which he seeks to rely in relation to the order of HHJ Marshall of 30 January 2007.  This will give him a better opportunity to formulate the grounds and to identify all the matters on which he would seek permission in due course. 

Lord Justice Wall:  

22.	I agree.

Order:  Application to appeal the order of Briggs J granted; application to appeal the order of HHJ Marshall adjourned