Case No. B2/2014/0794 
Neutral Citation Number: [2015] EWCA Civ 633
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM BIRMINGHAM COUNTY COURT 
(DISTRICT JUDGE INGRAM)
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Date: Thursday, 7 May 2015
 
B E F O R E:

LORD JUSTICE TOMLINSON 
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VIVIENNE HONEYGHAN
Claimant
‑v‑
 
CARL CAMPBELL 
Defendant 
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The Claimant appeared in person (assisted by her McKenzie friend, Mr Julian Lewis)  
The Defendant did not attend and was not represented 
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J U D G M E N T 

1.	LORD JUSTICE TOMLINSON:  This is a renewed application for permission to appeal, permission to appeal having been refused on the papers by Kitchin LJ.
2.	The order in respect of which the application is brought is an order made by District Judge Ingram in the Birmingham County Court on 30 September 2013.  By that order, she gave judgment for the defendant, Mr Carl Campbell, on his counterclaim in the sum of £6,569, together with an order that part of the costs of the counterclaim which she identified should also be paid, which were to be agreed and, if not agreed, subject to detailed assessment on the standard basis.
3.	The background to the claim is quite simply that proceedings were begun by Ms Honeyghan in the Birmingham County Court in December 2011.  By her claim, she alleged that in October 2009 she had been assaulted by the defendant, Mr Campbell, with whom she had lived for some years, and that in consequence she had sustained injuries; and, furthermore, she alleged that on 11 May 2011 the defendant admitted liability in damages to her in respect of that and offered the sum of £7,500 in settlement of her claim, together with costs to be assessed if not agreed.  That offer was accepted by an exchange of solicitors' letters but evidently the agreed sum was not paid, and the action was brought accordingly to seek payment of the agreed sum.
4.	In the defence and counterclaim, the defendant admitted both the (Inaudible) assault and the fact that he had agreed to pay £7,500 by way of compensation, but he sought to set off against that liability a counterclaim which falls broadly into two categories.  For a period of, I think, very nearly three years, Mr Campbell was in prison, in part I think in consequence of his assault upon Miss Honeyghan but also, and perhaps principally, because as I understand it he had also carried out a serious assault upon another person whom he alleged to have had a relationship with Miss Honeyghan.  At all events, he was sentenced to a substantial period of imprisonment.  But he alleged in his counterclaim that during that period the claimant, Miss Honeyghan, had collected certain rents from tenants of a property in Birmingham, 93 Villa Road, of which he was the owner, and that she had failed to account to him for those proceeds.  There was furthermore a small claim in respect of costs and expenses allegedly incurred by the defendant in making re‑entry into the premises, it being said that the claimant had refused to return the keys or give details of alarm codes, in consequence of which it had been necessary to change the locks.
5.	A reply and defence to counterclaim was put in by solicitors on behalf of Miss Honeyghan.  The solicitors were called Messrs Nicholls Brimble.  They are solicitors practising at Bearwood in Birmingham.  Miss Honeyghan has subsequently had a falling out with those solicitors, and as I understand it and as she has just explained to me she has made a complaint to the Ombudsman concerning their conduct of proceedings on her behalf.  I do not have any details of that.  Suffice it to say that they put in a reply and defence to counterclaim on her behalf which is dated 12 October 2012 which contains a certain number of admissions.  So, for example, it is accepted in paragraph 4 that a Mr Seaton, who was a tenant of one of the flats in the house which I understand also comprises some shop premises, dealt with the claimant, although it is denied that he paid rent in the sum of £1,180 to the claimant, and it is said that on his departure he owed the sum of £930 in rent arrears.  The positive averment is that all monies received from Mr Seaton were applied in payment of bills relating to the property and in order to purchase stock for an off‑licence business that was conducted from the premises.  Similarly at paragraph 5 it is accepted that the claimant did receive four or five payments from Mr Flash that were not applied towards the mortgage on the property, and there is an admission that the defendant was entitled to, it was said, half of the sum, I think on the basis of some alleged partnership arrangement.  Then finally in paragraph 7 it was admitted that requests were made for the return of keys by the defendant's solicitor to the claimant's solicitor, but what was said was that, notwithstanding that, the claimant had offered to return her keys to the defendant via a third party but there was no response to that offer.
6.	The matter came before District Judge Ingram on 30 September 2013, by which stage I should perhaps add the counterclaim had been amended so as to include some larger claims arising out of the carrying on of the business at the shop, so that the counterclaim as it stood when the matter came before the judge on 30 September was something just a little under £20,000.  That, I suspect, accounts for the fact that the case was in the multi‑track as opposed to the fast‑track or the small claims court, bearing in mind that the claim in respect of the rent and the costs of re‑entering was of the order of £7,000‑odd.
7.	When the matter came on for trial, the defendant, Mr Campbell, was represented by Miss Langdon of counsel and Miss Honeyghan appeared in person, although she had the assistance of a McKenzie friend, a Mr Julian Lewis, who has appeared before me today and has been of the greatest possible assistance in presenting the case.  The first matter with which I have to deal is an application for an extension of time, bearing in mind that the appellant's notice is dated 7 February 2014 and the order against which it seeks permission to appeal is 30 September 2013.  Although I have not seen it, it is said by Mr Lewis that an appellant's notice was lodged with the Birmingham County Court on 7 October 2013, which would of course have been well within time.  What I do have is a letter from the Birmingham County Court dated 2 December 2013 from which it is apparent that an appellant's notice had been lodged with the court, as a result of which His Honour Judge Oliver Jones QC directed, correctly, that the route of appeal lay to the Court of Appeal as the case had been allocated to the multi‑track, and gave directions that the appellant's notice was to be lodged at the Court of Appeal.
8.	As I say, I have not actually seen an appellant's notice of 7 October 2013, but I am prepared to accept that that is indeed what was done in an understandable error, and accordingly I grant an extension of time within which to bring this application for permission to appeal.
9.	It was explained to the district judge at the outset by Miss Langdon of counsel, by reference to a skeleton argument which I have not seen, that on 30 May 2013 the claimant's original claim of the £7,500 agreed compensation had been struck out and that on 26 March of that year an order had been made debarring the defendant from defending the counterclaim.  Mr Lewis and Miss Honeyghan have confirmed, as is apparent in fact from the transcript of the proceedings, or partially apparent from the transcript of the proceedings, that Miss Honeyghan did indeed withdraw the claim for £7,500.  She sought permission of the court to withdraw before in fact that claim was struck out; struck out for, as I understand it, a failure to pay a setting down fee which presumably had not been paid on the basis that Miss Honeyghan was in any event attempting to withdraw the claim.  Suffice it to say that it is clear that the claim had been either withdrawn or struck out apparently on the basis of some fresh promise by Mr Campbell to pay the money.  Whilst I was at one stage a little concerned as to the circumstances in which judgment had been given on the counterclaim, without regard to the claim to which it responded and in respect of which it asserted a set‑off, the claim having been admitted, I am satisfied that the judge was right to proceed as she did, bearing in mind what she was told about the attempted withdrawal of the claim and the circumstance that it had been struck out.  
10.	I should add that the judge did herself raise this point at page 96 of the transcript and indeed again at page 111 of the transcript, but at no time was it suggested by either Miss Honeyghan or Mr Lewis that the judge should take into account the claim, and at no stage in their submissions today did either Mr Lewis or Miss Honeyghan suggest that the judge was in error in giving judgment on the counterclaim without giving credit for the admitted amount.  It may well be that Miss Honeyghan is in a position still to bring proceedings in respect of that agreed amount but on the basis not only of the original settlement agreement but also the fresh promise to pay.  (Although of course there is the complication that the proceedings have been apparently struck out.)  However that may be, I am satisfied that the judge did not fall into error in giving judgment on the counterclaim without giving credit for the amount of the claim.
11.	Mr Lewis has asserted that the judge was in error in proceeding upon the basis that the claimant had been debarred from defending the counterclaim, as she was told.  The judge does appear to have had a court bundle, which I imagine will have contained the relevant orders that had been made.  I should add that I do not have the benefit of any bundle of that sort, I simply have the bundle for the purposes of the application for permission to appeal that Miss Honeyghan has prepared.  I also do not have the bundle of documents that was before the judge at the trial, which is evidently a substantial bundle consisting of at least 250 pages.  It was not suggested to the judge at the hearing that Miss Langdon had been in error in suggesting that the claimant had been debarred from defending the counterclaim and that is the basis upon which matters proceeded.  
12.	I am obviously in no position to form a view either way as to whether an order had been made debarring the claimant from defending the counterclaim since I have not been shown the relevant material.  But, bearing in mind that it was not suggested at the trial that the judge or Miss Langdon were in error in this regard, I cannot regard that as a valid ground of appeal.  Mr Lewis says that both he and Miss Honeyghan were unable to point that out to the judge because they were not permitted to speak on the matter, but the transcript makes it quite clear that it would have been perfectly possible for either Mr Lewis or Miss Honeyghan to have explained that to the judge, just as Miss Honeyghan gave her explanation in relation to the withdrawal of the claim and the negligence of her solicitor.
13.	In any event, it is plain that the judge did afford Miss Honeyghan the opportunity to cross‑examine the witnesses to test the case that was put against her, but she made it clear, correctly, that in circumstances where she was debarred from defending, she was not permitted to put forward a positive case.  I can well understand that that produced a situation which was both difficult and confusing for Miss Honeyghan and Mr Lewis, but it does seem to me that Miss Honeyghan was in fact afforded the proper opportunity to test the evidence that was relied upon against her.
14.	The complaints which Mr Lewis and Miss Honeyghan have really focused on today I can summarise as follows.  Firstly, it is said that Miss Honeyghan was interrupted by the judge whilst she was cross‑examining witnesses and that the judge in some respects assisted the witnesses by, as it is put, telling them what they ought to be saying.  By the same token, it is suggested that the judge on various occasions, as Mr Lewis put it, led the barrister as to what she should say.  Then it is said that a certain amount of new evidence was allowed to be given in the shape of bank statements which had not hitherto been seen.  It is pointed out that one of the witness statements that was relied upon was not signed.  It is said that hearsay evidence was relied upon in circumstances where there was nothing to support it.  Mr Lewis and Miss Honeyghan are critical of the judge for conducting the proceedings in what they would say was not a professional manner.  In particular, they are critical of four references she made to the fictional American character Judge Judy.  Finally, and perhaps really the most substantial point of all, is the suggestion that the evidence which the judge had was of insufficient quality or reliability to permit her to come to the findings which she did.  
15.	The judge recorded in her judgment, of which I have an approved copy, that she found that on the balance of probabilities Mr Flash, one of the tenants, had made payments to the claimant in the sum of £3,960, for the most part by way of cheques which were filled in blank in the sense that there was no named payee, although there was an amount and a signature by Mr Flash.  She accepted that the claimant had received a further £1,180 from Mr Seaton, and finally she found that a sum of £1,429 had been expended in dealing with the effecting of re‑entry to the premises.
16.	I have to say that I have some sympathy with the judge in the circumstances in which she found herself.  It is plain that the judge was only allocated the case at short notice and it is clear that the manner in which the case was presented to her was both confused and confusing.  I have not of course seen the bundle of documents which the judge had before her.  As I have said it was substantial, but I suspect little of it was of great relevance.  What was needed was a careful exposition of the documents that were relevant which it is plain the judge did not receive from counsel for the defendant, Miss Langdon.  Mr Lewis is right to have pointed to various occasions in the transcript where the judge had to express her frustration at the lack of assistance she was receiving from Miss Langdon and had to explain to Miss Langdon on occasion how she should conduct her task.  That is a most regrettable feature of the proceedings, but I have to ask myself whether it led to the defendant not receiving a fair trial.
17.	Likewise, I understand the surprise felt by Mr Lewis and Miss Honeyghan at the manner in which the judge sometimes expressed herself.  But I think in fairness to the judge what she was attempting to do was to explain to Mr Lewis and Miss Honeyghan how the proceedings were to work, in circumstances as I have indicated of some difficulty and where of course she could not expect either Mr Lewis or Miss Honeyghan to understand the finer points of the procedure or in particular the limitations that were placed upon them by virtue of Miss Honeyghan having been debarred from defending the counterclaim.  There were indeed four references to Judge Judy and at least two, possibly three references to the court being Judge Ingram's "playpen", and whilst, as I indicated to Mr Lewis and Miss Honeyghan in the course of discussion earlier today, that is not a way or a manner in which I would have conducted myself had I been hearing the case, nonetheless I am quite satisfied that what the judge was in fact trying to do was to explain the nature of the proceedings and her function in a manner which she thought would be readily understood by Mr Lewis and Miss Honeyghan.
18.	In many ways proceedings got off to a very bad start so far as concerns the relationship between Mr Lewis and Miss Honeyghan and the judge, because in the course of Mr Lewis being introduced as the McKenzie friend there to assist (not something about which the judge knew in advance), the judge asked Mr Lewis to explain the nature of his friendship with the claimant, Miss Honeyghan, in terms which both the claimant and Mr Lewis found inappropriate and possibly offensive.  I understand their concern in that regard, but again I am satisfied, and I think Mr Lewis and Miss Honeyghan now understand, that although the judge could perhaps have expressed herself differently, what she was seeking to do was to establish whether or not Mr Lewis was, as it were, a member of the family or was someone who was completely independent and therefore detached from the events which had occurred.
19.	It is right to say that there were numerous interruptions by the judge whilst Miss Honeyghan was cross‑examining the witnesses, and similarly there were numerous interruptions by the judge whilst Miss Langdon was cross‑examining the witnesses, but I have read the whole of the transcript of the proceedings which was produced for the purpose of this application and again I have to ask myself whether those interruptions have led to there being a less than fair trial.  The interruptions were for the most part caused either in the case of Miss Langdon by the judge's frustration at the manner in which the examination‑in‑chief was being conducted, or in the case of Miss Honeyghan by the judge attempting to ensure that Miss Honeyghan did not go beyond what was permitted to her in terms of testing the evidence as opposed to putting forward a positive case, which furthermore was not something that should appropriately have been done during cross‑examination in any event, and the judge was concerned to ensure that Miss Honeyghan should not be making her submissions or her arguments whilst questioning the witnesses.  The judge also was not assisted by the fact that the evidence plainly was in a state of some disorganisation.
20.	So far as concerns fresh evidence, it is not clear to me from the transcript precisely what fresh evidence was sought to be introduced during the hearing because there are frequent references to pieces of paper and so forth, and whilst some are identified as bank statements others are simply unidentified.  What I have, however, been able to ascertain is so far as concerns some bank statements which Miss Langdon attempted to introduce, the judge declined to permit their introduction and indeed the judge became really quite irritated with Miss Langdon when, having ruled that they ought not be admitted, nonetheless Miss Langdon it would seem attempted to reintroduce them in the course of cross‑examination by Miss Honeyghan of a relevant witness.  It is true that one of the witness statements was unsigned and that the judge permitted it to be signed at the trial.
21.	It has to be borne in mind that the judge was here dealing with a case which everyone wanted to be resolved on the day without more and where the sum at stake was, by the standards of litigation in the courts, relatively modest.  I do not of course by that mean to say that the sum of £6,000 or £7,000‑odd was not a substantial amount for any person to be expected to pay out of his or her pocket, but nonetheless by any standards this was a modest amount, as Mr Lewis and Miss Honeyghan recognised in their assertion that the matter ought really to have been dealt with in the fast‑track or the small claims court.  But the matter was in the multi‑track as a result of the claim having been greater.  I should have mentioned earlier that at the outset of the proceedings Mr Campbell abandoned his larger claim for the share of profits made during the period whilst he was in prison because he recognised that the relevant profits made during that period, if any, were due not to him but to a limited company which he had caused to be incorporated for that purpose.  That meant, I am afraid, that the matter remained in the multi‑track because it was too late for anything else to be done about it.  But the judge was concerned to deal with the case as best she could and of course there were several witnesses there available to give her evidence.
22.	It is plain that there was very little documentary material before the judge which was relevant to the claim, but in such circumstances a judge has to do the best which he or she can, and I have to ask myself whether the claimant Miss Honeyghan has a realistic prospect of persuading this court that there was simply insufficient material upon the basis of which the judge could reliably come to a conclusion on the balance of probabilities that Miss Honeyghan had received the amounts which she recorded or that the amount had been spent dealing with the re‑entry and the changing of the locks and so forth.
23.	The judge saw and heard the witnesses.  The judge recognised that the witnesses had very little independent recollection of amounts paid by way of rent, which was not entirely surprising bearing in mind that this had all happened a little while before.  The judge specifically referred in her judgment to circumstances such as that Mr Seaton left his tenancy owing some £960, but the judge nonetheless felt able on the basis of the evidence which she heard to conclude on the balance of probabilities that the amounts that she found had in fact been paid by those witnesses and had been received by the claimant.
24.	Miss Honeyghan is particularly critical of the fact that she had asked to see Mr Flash's bank statements and that a request had been made by her solicitors for those to be disclosed.  But of course Mr Flash was not himself a party to the proceedings and I have not been shown any of the materials which would demonstrate the extent to which Miss Honeyghan's solicitors followed up the request which they apparently made on her behalf to see Mr Flash's bank statements in order to prove that payments had been made.  But bearing in mind that it is not suggested that Mr Flash was not a tenant at the relevant time, it seems to me that the judge was entitled, using her broad discretion, to find that Mr Flash had indeed made the payments which he alleged in the manner in which he said.
25.	An appellant or a would‑be appellant faces a very heavy burden in seeking to persuade the Court of Appeal that the judge has not been entitled to make findings of fact which are dependent upon an evaluation by the judge of the honesty and reliability of witnesses who are before the court.  I am satisfied that Miss Honeyghan did have a proper opportunity to test the evidence that was deployed at trial and that the judge was entitled to come to the conclusions which she did.  
26.	For all those reasons, therefore, whilst I accept and understand that the proceedings on 30 September were an unhappy experience for Miss Honeyghan, I am not persuaded that in the circumstances the trial was unfair or that the judge arguably came to a conclusion to which she could not reasonably have come.  For all those reasons, therefore, whilst as I indicated at the outset I extend time for the bringing of the application for permission to appeal, I am not able in the circumstances to grant permission to appeal in order to reopen the proceedings that took place.  
27.	The order of the court will be extension of time granted but permission to appeal refused.