B1/01/0607

Neutral Citation Number: [2001] EWCA Civ 811
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(Mr Recorder Barker)
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Wednesday, 16th May 2001
B e f o r e :

DEPUTY MASTER JOSEPH

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KHADIJA ABOUCHITAA
Applicant

‑ v ‑

RACHID EL‑YAMLAHI

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
Fax No: 0171‑831 8838
Official Shorthand Writers to the Court)
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THE APPELLANT was not represented and did not attend.

THE RESPONDENT was not represented and did not attend.

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J U D G M E N T
1.	DEPUTY MASTER JOSEPH: This is an appeal by the respondent in the court below from a decision made by Mr. Recorder Barker in the Wandsworth County Court on 27th March 2001, who had made a committal order of one month against him which was suspended for a year for alleged breach of the terms of an earlier order made in January, when he was forbidden to use or threaten violence. A power of arrest was attached to that earlier order in favour of the claimant.
2.	There is an automatic right of appeal from orders for committal because the liberty of the subject is involved and the nature of the matter is such that it is vital that an appeal is determined as quickly as possible.
3.	The applicant, who is represented by solicitors, filed the application for permission to appeal on 9th April. They were advised by letter that they should lodge a set of bundles in the Civil Appeals Office in support by 25th April. No bundles were received by that date. The matter was therefore assigned to the dismissal list on 3rd May. That produced a letter from the solicitors, in which they indicated that the reason for the delay was the difficulties that they were experiencing in obtaining a transcript of the hearing at Wandsworth County Court. They produced a letter from the court dated 24th April, which states:
“Thank you for your letter of 5th April 2001. Having checked the court file I can find no indication that the hearing was taped. May I suggest that you contact the counsel that represented your client at the hearing on that day.” 
4.	Somewhat belatedly, on 14th May, two days ago, the solicitors lodged a set of bundles, but as they failed to address what they were doing or had done about obtaining an approved note of judgment, I directed that the matter should remain listed today. That has produced a spate of letters from the applicant's solicitors, in which they have endeavoured to set out the steps that they have taken with regard to obtaining a note of judgment. Their letter of 14th May states as follows:
“We set out below the history of correspondence between ourselves and Wandsworth County Court in respect of the court transcripts.
1. We wrote to Wandsworth County Court on the 5th April inquiring as to whether the proceedings of 27th March 2001 were taped.
2. We wrote again to Wandsworth County Court on the 19th April 2001.
3. We received a letter dated 24th April 2001 from Wandsworth County Court stating there was 'no indication that the hearing was taped.'
4. We wrote again to Wandsworth County Court on 8th May 2001 and have not heard further from them.
We enclose copies of all the above correspondences.”
5.	The letter of 8th May to which they make reference, which they sent to Wandsworth County Court, states:
“Thank you for your letter dated 24th April 2001 advising that the above hearing was not recorded.
In that respect, please let us have a copy of Recorder Barker's notes of the hearing as soon as possible.” 
6.	Following that letter being referred to me, I directed that I still remained unsatisfied that all appropriate steps had been taken to set in motion the approval of a note of judgment by the learned Recorder. A further letter was then received from the applicant's solicitors dated 15th May, in which they state:
“We refer to our telephone conversation of this afternoon. The delay in trying to obtain notes of the hearing was due to the fact that when counsel was approached following the court's letter dated 24 April he informed us that he had in fact kept no real notes and that the quickest method would be to write to the court asking for a copy of the Recorder's own notes. It was not until the 8th May that this request was made. This delay can only be explained by the fact that counsel was difficult to contact and it was not possible to take a decision without confirmation of this point from counsel.” 
7.	With regard to this appeal, it must or should have been clear from the contents of the letter from the Wandsworth County Court to the solicitors dated 24th April that, if there was no transcript, they needed to explore urgently other means of obtaining a note of judgment, and that their counsel, however poor his notes might be, needed to prepare a note to the best of his ability, endeavour to agree it with the other side and submit it to the judge for approval. There is still no clear indication of what steps have been taken in this regard, except that the solicitors appear to be relying on the fact that they are still waiting for the County Court to respond to their request to release the Recorder's notes.
8.	I ought to say at this point that it was only yesterday, following urgent inquiries made at my direction by the case manager, Miss Holford, that we were somewhat belatedly told of the limited steps that had been taken to set in motion the approval of a note of judgment. I have to say that, in a case such as this, I would have expected solicitors to have had a greater sense of urgency and understanding of what was required of them. Putting aside whether it was reasonable to wait a month to be told by the County Court whether a tape of the judgment existed, it was unwise, to say the least, for the solicitors to merely wait upon the receipt of the Recorder's notes. I have no means of knowing how long a request to the Recorder to release his notes would take to progress, but factors such as whether he was sitting regularly at the county court in question could substantially delay an answer from that court. The solicitor's correspondence in this regard is silent.
9.	The appropriate procedure in cases where there is no tape of the judgment is set out in paragraph 5.12 of the Practice Directions at CPR Part 52. It is subparagraph (2):
“When judgment was not officially recorded or made in writing a note of the judgment (agreed between the appellant's and respondent's advocates) should be submitted for approval to the judge whose decision is being appealed. If the parties cannot agree on a single note of the judgment both versions should be provided to that judge with an explanatory letter. For the purpose of an application for permission to appeal, the note need not be approved by the respondent or the lower court judge.” 
10.	This is a case where it is a full appeal. There is no indication that the solicitors have even embarked on the appropriate process. Their counsel, however inadequate his note of the judge's reasons for his judgment may be, should submit the best note that he can to the other side for approval and then submit it to the Recorder. This process is bound to take a little time to produce an approved note. I am dismayed that already seven weeks have virtually been wasted in getting precisely nowhere, and at this rate of progress the Recorder's committal order, which was suspended for a year, will have expired. As I indicated at the outset, this is a type of matter which the court quite rightly needs to deal with as one of urgency. The solicitors were told this morning on my directions that they could send a representative, a solicitor, along to court if they wished, if it was impossible for them to brief counsel. No one has attended.
11.	The order that I propose to make is this. The appellants must within 14 days, if they have been unable to provide an approved note of judgment within that period, provide a detailed chronology setting out in full the steps that they and their counsel have taken to obtain an approved note of judgment in the absence of an official transcript. I further direct that that matter be relisted for hearing in the dismissal list on 6th June, in the event that either no approved note of judgment has been provided or it is considered that the information as to progress contained in the chronology is inadequate for the purposes of progressing the matter. I will direct that my judgment today be transcribed and, if it becomes necessary to do so, that it is referred to the court which ultimately deals with the appeal.
12.	I will add one further thing. The case will remain listed on 6th June unless the solicitors are specifically told prior to that date that the hearing has been vacated.