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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> National Westminster Bank v Smillie [2001] EWCA Civ 1584 (9 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1584.html Cite as: [2001] EWCA Civ 1584

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND A
STAY OF EXECUTION
APPLICATION FOR PERMISSION TO APPEAL
AN EXTENSION OF TIME AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Tuesday, 9th October 2001

1. LORD JUSTICE MUMMERY: This is an adjourned application for permission to appeal. The application is made by Mrs Smillie. It first came before me on 20th July 2001. There is an application for permission to appeal against two decisions. The first is an order made by His Honour Judge Rice on 20th January 1999. By his order Mrs Smillie was granted 14 days in which to file a defence to a claim for possession brought by the respondent to this application, the National Westminster Bank Plc. He directed that, in default of filing a defence as ordered, her appeal against a possession order which the bank had obtained on 26th November 1998 would be dismissed. The second decision which Mrs Smillie wishes to appeal followed on her failure to comply with His Honour Judge Rice's order. Her appeal had been dismissed, because of default in complying with the requirement for service of a defence. On 28th March 2001 His Honour Judge Yelton refused Mrs Smillie relief from the order which debarred her from defending the claim, and refused her permission to amend her grounds of appeal against the possession order.
2. At the hearing on 20th July 2001 Mrs Smillie appeared in person, though she had the help of Mr Goppe, a McKenzie Friend. She explained the grounds on which she wished to have permission to appeal. They are set out in a short judgment. I decided that I would neither refuse nor grant permission to appeal. I was not satisfied that everything which I needed to know before making a decision had been satisfactorily explained. I adjourned the matter, so that the bank could be represented at the adjourned hearing, summarise for the court in a skeleton argument their response to these applications and contend why the appeals would have no prospect of success. I pointed out to Mrs Smillie what the costs implications were of taking that course should I ultimately refuse permission to appeal. The bank instructed their solicitors. Mr Hardwick of counsel submitted a skeleton argument and a chronology of the relevant events, which span the last 20 years, relating to the activities of Mrs Smillie, the bank's dealings with her and the ensuing litigation.
3. Mrs Smillie has appeared, again assisted by Mr Goppe. I have heard arguments raised by them as to why this appeal should be allowed to go forward. The position is that, according to the documents, Mrs Smillie borrowed money from the bank. The loans were secured by legal charges dated 12th November 1982 and 2nd November 1984 on properties which she acquired at 19, 21 and 21A St Vincent Road, Westcliff on Sea. She had borrowed money from the bank for the purpose of renovating the properties and developing the business of a nursing home. Unfortunately, the payments due to the bank were not made. The bank made a formal deman for repayment of the loan on 15th June 1989. The amount of the demand was £176,583.13. In 1993 the bank issued proceedings in the High Court for repayment and applied for summary judgment. Mrs Smillie was given unconditional leave to defend.
4. Negotiations went on between the bank and Mrs Smillie. They resulted in a consent order being made in the High Court proceedings, under which judgment was given for the bank in the sum of £280,000, subject to stipulated terms and conditions. Those conditions were not complied with. That led the bank, on 4th August 1998, to start possession proceedings against Mrs Smillie in respect of the three properties. The proceedings were taken in the County Court.
5. The response of Mrs Smillie was to commence proceedings to set aside the consent order. In respect of that she did ultimately succeed when Mr David Foskett QC, sitting as a Deputy High Court Judge, made an order on 4th February 1999 setting aside the consent order and judgment on the basis of non-compliance with Ord.42,r.5A (5). In the meantime, however, the possession proceedings had proceeded. An order for possession was made on 26th November 1998 by District Judge Mitchell. Mrs Smillie appealed against that on the basis that the High Court was still dealing with the matter, as it was, in her proceedings to set aside the consent order. Her appeal came before His Honour Judge Rice. He adjourned it until the resolution of the proceedings in the High Court. He made anorder that Mrs Smillie file a full defence within 14 days. In default of doing so her appeal would be dismissed. That is the first order that Mrs Smillie wishes to appeal. According to the transcript of Judge Rice's judgment, he made it quite clear first that Mrs Smillie had never filed a defence, though given the opportunity to do so; next, that she should realise that she had failed to take proper steps at the proper time and that she must observe the timetables. That led him to direct that, in adjourning the matter until the resolution of the High Court proceedings, within 14 days she would file a full defence to the action in the County Court, that is the action for possession. He commented that the bank had appeared to have acted very reasonably in relation to the case and it was no fault of theirs that Mrs Smillie had not filed a defence. He said this in the final paragraph of his judgment:

" ..... in the event of the appellant [Mrs Smillie] failing to comply with the above orders then the appeal will be dismissed. So your appeal goes if you do not file your defence. Do you understand that, Mrs Smillie? Yes."

6. As I have said, no defence was filed.
7. In February 1999 the order setting aside the consent order in relation to the £280,000 was made. That was followed in April 2000 by a two day hearing before Master Ungley. He gave summary judgment in favour of the bank in the sum of £280,000 and interest. That was an order in the High Court.
8. The next order was made by His Honour Judge Yelton on 28th March 2001 in Southend County Court. The judgment given by His Honour Judge Yelton carefully sets out chronologically the history of what he described as a long and convoluted dispute between the bank and Mrs Smillie dating from the time of the charges granted by her to the bank in 1982 and 1984. Judge Yelton referred to the order of Judge Rice and Mrs Smillie's default in complying with her obligation to file a full defence. He said no defence has ever been filed to the original or amended particulars. He asked correctly the question: should I give relief to Mrs Smillie from a sanction imposed by Judge Rice under his order of 20th January 1999 in order to allow the appeal to be reinstated? He answered the question by stating his conclusion that the failure to put in a defence was intentional. It was a personal failure. He took account of the fact that Mrs Smillie was seeking to raise new and far reaching matters relating to events in 1982 for the first time. He also bore in mind dealings with the property which he took as a blatant attempt to avoid execution of various orders of the court. He took the view that the matter had gone on for far too long and, accordingly, rejected the application to amend the notice of appeal and also rejected the implied application to reinstate the appeal. He stated in conclusion that the bank were in a position to apply for a warrant of possession, and if they required leave he granted it to them.
9. Those are the two orders, the order of Judge Rice and the order of Judge Yelton, which Mrs Smillie wishes to appeal. In support of that she has submitted a skeleton argument which summarises the points which she has formulated with the help of Mr Goppe. She says in that that, in relation to the judgment of Judge Rice, her case is that, her application to set aside the consent order having been successful, the bank's particulars of claim seeking possession dated 4th August 1998 disclosed no case for her to answer. Those particulars should therefore have been shut out. As regards the "unless" order made by Judge Rice, she submitted that the High Court had subsequently made an order in her favour and the time for serving the defence would have expired. She says that the only concise defence available to her at that time was that the consent order was a non-existent order and that that was a defence which she was able to advance at that time. The point is also taken that there were defects in the particulars of claim. Reference is made to the provisions in the County Court Rules, Ord.6,r.5, which were then in force. Various irregularities are alleged. As regards the order subsequently made by His Honour Judge Yelton, it is complained that her human rights had been violated, in particular in relation to her right to a fair trial by an impartial tribunal. If that right had been observed she would have been allowed to amend her particulars. The refusal of Judge Yelton had deprived her of opportunity to amend her defence and had deprived her of a right to a fair trial. She makes a complaint of interference with peaceful enjoyment of her possessions under Article 1 of the First Protocol or, alternatively, the right for respect for her home under Article 8 of the Convention. She says that the manner in which these proceedings have been dealt with in the County Court have infringed these rights.
10. I have taken account of those points and further matters of a more wide-ranging character which Mrs Smillie has presented this morning. She has repeated, in essence, what she has told me on the earlier occasion, that although she signed the legal charges, copies of which are contained in the bundles, this was not essentially the basis of her relationship with the bank. Her case is that she was lent the money; it was to be the subject of a government guarantee; and the only security to be taken by the bank was on an insurance policy and not charges on the properties themselves. She says it was a business loan under which she had to run the business - the old peoples' home - for two years. That is what she did. She contends forcefully that it was not a property loan and that the bank had no security upon it.
11. This amounts, as Mr Hardwick observed in his oral submissions, to raising at this late stage a defence of "non est factum" in relation to the legal charges. This was missing from the original contest to the bank's claims. The procedural position is - as I think correctly pointed out by Mr Hardwick - that Mrs Smillie no longer has any right to advance a defence.
12. The position is that Judge Rice was entitled to make the order which he made on 20th January 1999 requiring Mrs Smillie to serve a defence. In view of the history of the matter I think he was also entitled to make an unless order. As that order was not complied with, the appeal against the possession order was correctly struck out. This also means, in my view, that Judge Yelton was right when two years later on 28th March 2001 he heard Mrs Smillie's application for relief from the order which debarred her from pursuing the appeal and defending the action. In my view he was entitled, for the reasons he set out in a detailed and careful judgment, to refuse Mrs Smillie permission to amend her grounds of appeal against the possession order made in November 1998. He was entitled to refuse her any relief from the order which debarred her from defending the possession proceedings. For those reasons I do not think that Mrs Smillie has any real prospect of succeeding in her appeals against the orders of Judge Rice and Judge Yelton.
13. I would therefore refuse permission.
Order: Applications refused