B1/2001/0209

Neutral Citation Number: [2001] EWCA Civ 907
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(His Honour Judge Hutton)

								Royal Courts of Justice
								Strand
								London WC2

								Friday, 8th June 2001

B e f o r e:

LORD JUSTICE PETER GIBSON

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FLETCHER
Claimant/Respondent

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MR & MRS JOHN
Defendants/Applicants

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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J U D G M E N T
Friday, 8th June 2001 
1.	LORD JUSTICE PETER GIBSON: The defendants, Mr and Mrs John, seek permission to appeal from the order of His Honour Judge Hutton of 4th September 2000 in the Gloucester County Court. The judge's order was that the defendant's application for leave to appeal be dismissed. It is very unusual for this court to be faced with an attempt to appeal such an order; but from my perusal of the papers and having discussed the matter with Mr and Mrs John today (they appear in person), but without hearing the claimant, Mr Fletcher, who of course was not required to attend on this application, it would appear that there has been a fundamental misunderstanding by the judge of the true position. 
2.	Mr Fletcher did some building work on the defendants' property. He invoiced them for £2,631.32, which he claimed was the balance due from the defendants in respect of that work. The defendants dispute that claim on the basis that Mr Fletcher's work was defective. On 25th March 1999 Mr Fletcher commenced the proceedings, claiming the invoiced sum. The defendants counterclaimed for £4,011.35. 
3.	The case was to be heard on 9th March 2000. On 1st March, the defendants wrote to the court asking for an adjournment because Mr John was ill. On 9th March, however, Deputy District Judge Wilkinson gave judgment in the sum of £2,911.32 to Mr Fletcher. The order recited that he had read the defendants' letter but that no medical certificate had been filed and that Mrs John had failed to appear. In other words, the Deputy District Judge was pointing out that, even if Mr John was ill, Mrs John might have appeared. 
4.	The defendants applied to set aside the judgment. That came before District Judge Ing on 20th April in the presence of both parties in person. The District Judge ordered that the judgment be set aside on condition that the defendants paid into court the invoiced sum by 4.00 p.m. on 2nd May 2000.
5.	On 2nd May the defendants applied to the court for “leave to appeal” on the ground that they were unable to raise the sum the subject of the condition in District Judge Ing's order until the work was properly completed. It is, I think, plain that the order which the defendants were wanting to appeal was not the order of 9th March -- that had already been set aside -- but the order of 20th April imposing the condition of payment. 
6.	The application for “leave to appeal” was filed within 14 days. It is not apparent to me why leave was needed to appeal to the Circuit Judge. The application came before His Honour Judge Hutton on 4th September. We have a transcript of the hearing before the judge; and it appears that, right from the opening words at the commencement of the hearing, the judge was not told and did not understand what the defendants were trying to do. He asked Mr John whether he wanted leave to appeal against the order of 9th March 2000, to which Mr John replied, “That's right.” The judge continued, “Where you failed to appear before the District Judge”, to which Mr John replied, “That's right, yes.” The judge thereafter continued to ask questions of both sides, and indeed heard evidence, about why the defendants did not appear on the 9th March. The judge thought that the hearing was on that occasion before Judge Ing, when, as I have said, on 9th March the order was made by Deputy District Judge Wilkinson. The judge thought he was considering whether he should grant leave to appeal from the earlier order. There was no mention by either side of the order made on 20th April. The judge was impressed by evidence that Mr John had been fit enough to referee a football match on 11th March, two days after the day when the defendants say he was too ill to attend in court. When the judge gave judgment it is apparent to me that he continued to think that on 9th March District Judge Ing had made the order, and again there is no mention of the order of 20th April. The order of 20th April was the order against which the defendants would appear to me to have a right of appeal. The judge, however, thought he was considering whether he should give leave to appeal from the order of 9th March. He said that there was no evidence that Mr John was too ill to attend on 9th March, and so he dismissed the application for leave. 
7.	What ought to happen now? In one sense Mr John has only himself to blame for accepting before the judge that he was seeking leave to appeal from the order of 9th March and in not drawing attention to the order of 20th April. The defendants may also be to blame for the wording of the application of 2nd May for leave to appeal, when it may be that they did not need any such leave. They tell me that they were told by a lawyer in Gloucester that that was what they should be seeking. However, even if the defendants are to blame, they are litigants in person and it seems to me to run counter to the overriding objective of the Civil Procedure Rules to deal with a case justly (see Part 1) not to allow them the opportunity to persuade this court that the judge's order, made under a complete misconception, should be set aside. 
8.	For that reason, I would grant permission to appeal. But I would add two things. First, I should make clear that, on the appeal hearing, this court will not be deciding on the underlying merits of the dispute between the parties over the work done by Mr Fletcher but will merely decide whether the judge's order should be set aside and the case remitted to the county court so that that court can determine whether District Judge Ing's order of 20th April and its condition should be set aside or varied. Second, now that the defendants have permission to appeal from this court, they would be well advised to consider seeking legal assistance and representation. I do not know whether they would qualify for legal aid. If not, they could try to obtain help from lawyers prepared to work pro bono. The Citizens Advice Bureau in the Royal Courts of Justice might be a good first port of call.
Order: Application allowed.