Brcic v Halifax Plc [2001] EWCA Civ 2042 (20 December 2001)

Neutral Citation Number: [2001] EWCA Civ 2042 B2/01/2523 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE QUEEN'S BENCH DIVISION (MR JUSTICE PATTEN) Royal Courts of Justice Strand London WC2A 2LL Thursday 20 December 2001 B e f o r e : LORD JUSTICE CHADWICK ____________________ MISS DRAGICA BRCIC Claimant/Applicant - v - HALIFAX PLC Defendant/Respondent ____________________ (Computer Aided Transcript of the Palantype Notes of Smith Bernal Reporting Limited, 190 Fleet Street, London EC4A 2AG Tel: 020 7421 4040 Fax: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ The Applicant appeared in person. The Respondent did not attend and was not represented. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE CHADWICK:This is an application for permission to appeal against an order made on 11 October 2001 by Patten J in proceedings bought by the applicant, Miss Dragica Brcic, against Halifax Plc. The dispute between those parties goes back some years and has been before this court on three occasions in 1997 and, more recently, in January 1999. The claim arises out of the applicant's purchase in May 1991 of a first floor flat at 10 Gwendwr Road, West Kensington. The purchase was funded, in part, by a loan from the Halifax Building Society (as it then was). On 26 March 2001, the Halifax obtained an order in the Central London County Court for possession of the mortgaged property and for payment of the sum of £42,241.75 secured by the mortgage. There is a further sum of £42,118 owing to the Halifax from Miss Brcic in respect of costs under a certificate dated 8 February 2001 and made in action 1998 B 1570. The order of 26 March 2001 gave the applicant permission to apply for the date of possession to be postponed pursuant to section 36 of the Administration of Justice Act 1970; that is to say, she could apply for the date for possession to be postponed if she persuaded the court that she had proposals for the payment of the mortgage debt. The applicant has made two applications, dated respectively 29 June 2001 and 22 August 2001, to the Central London County Court. No copies of those applications have been provided to this court, although Miss Brcic has referred me to a document headed "Witness Statement and Application for the 'adverse order'" which she signed on 16 June 2000. That cannot be an application dated 29 June 2001. As I shall explain, the absence of any copies of the applications which she made to the county court was one of the reasons why Patten J made the order which he did on 11 October 2001. The applications of 29 June and 22 August 2001 came before His Honour Judge Cook in the Central London County Court on 4 September 2001. He dismissed the applications; but he extended the date for possession until 30 November 2001. There is some indication in Miss Brcic's letters and statements that he extended the date in order to give her an opportunity to sell the property. However, she has not done so. The applicant sought permission to appeal to the High Court. That application came before Patten J on 11 October 2001. He did not have copies of the applications made to the county court on 29 June or 22 August 2001; and he did not have any note or transcript of a judgment delivered by His Honour Judge Cook on 4 September 2001. Patten J took the view that he could not deal fully with the application without that material. He directed that Miss Brcic lodge, as part of her appeal bundle (i) a copy of the transcript of the judgment delivered by His Honour Judge Cook on 4 September 2001, (ii) copies of all or any other relevant transcripts upon which the applicant wished to rely and (iii) copies of the applications themselves together with any witness statements which were before the county court. He ordered that the application be relisted on the first open day after 28 days and directed that the Halifax should be represented on that further hearing. He did not impose any further stay on the order for possession. He probably thought that unnecessary, in the circumstances that the stay ordered by Judge Cook continued until 30 November 2001. He anticipated that the matter would be back before him before that date. It is against that order that the applicant seeks to appeal to this court. The application before Patten J was made by an appellant's notice dated 17 September 2001. The grounds for appeal, set out in section 7 of that notice, are in these terms: "The judge [Judge Cook] had acted in conflict of interest. Violated my human rights, abused his position of power. Misused the law. Bullied me verbally - dragged the case so that the defendants gained financially. He ignored constitution and lawyers rulings." In the face of those serious allegations against the conduct of the matter by Judge Cook when it was before him on 4 September 2001, I find it impossible to see how Patten J could proceed with an application for permission to appeal without a transcript of the judgment, if any, of Judge Cook; and, I think also, transcripts of the whole of the proceedings. If Miss Brcic wants to assert that Judge Cook bullied her verbally, then she will need to make that allegation good by reference to what actually happened on 4 September. The application to this court is made by the appellant's notice dated 17 November 2001. Section 7 is in these terms: "The whole Order dated 4 September [Judge Cook's order] was act in conflict of interest, abuse of the Power of Authority. Points of Law were ignored. My Human Rights were breached ie Article 1, 6, 8, 9, 13 and 14. Abuse of Child's Act 1989. Order of 11 October 2001 has been delayed simply to gain more costs from me. Transcript in question did not give any reason for dismissing my two applications, only violation of my Human Rights. At the end of the day the stayed application will be dismissed with more costs. Points of Law seem not to count." If the applicant's case is that a transcript of the judgment of His Honour Judge Cook on 4 September 2001 would show that the judge did not give reasons for dismissing her two applications of 29 June and 22 August 2001, then it is even more important that a judge of the High Court, exercising an appellate function, should see the transcript. The failure of a judge to give reasons is a powerful ground for appeal. The applicant has given no reason why she is unable to do what Patten J directed; save to tell me that she has applied to the county court for a transcript and no transcript has been forthcoming. She has not been able to show me any application or correspondence with the county court to support that. I find it impossible to see how an appellate court can consider her appeal from the order of 4 September 2001 without, at least, knowing what the applications were before His Honour Judge Cook, the grounds upon which she was inviting the judge to exercise a jurisdiction under section 36 of the Administration of Justice Act 1970, and the reasons, if any, which Judge Cook gave for dismissing those applications. Patten J could not have dealt with the application for permission to appeal which was, and remains, before him without requiring the applicant to provide that material. Plainly, it was open to him to take the view that he would need assistance from the Halifax on an adjourned hearing, in order better to understand what the intentions of the Halifax were. If there is some difficulty in complying with the judge's direction - because, for example, Miss Brcic does not have copies of her applications of 29 June and 22 August 2001, or because she cannot obtain a transcript from the county court - she can go back to Patten J to explain the difficulty to him and ask him to vary the order. She can also ask him to grant a stay of the possession order until after the difficulty has been dealt with. That course is open to her; and has been open to her for the last two months. I do not know why she has not taken it. Instead, she is asking this Court to interfere with an order made by Patten J on 11 October 2001 which was intended to enable her application for permission to appeal to him to be properly dealt with. There is no prospect that this Court would interfere with the order made by the judge on 11 October 2001. Miss Brcic tells me she fears that she and her child are about to be put on to the street by the Halifax before Christmas. In the circumstances that no appointment has been made by the bailiff to execute a warrant for possession - if indeed a warrant for possession has been issued - I can see no danger of that. Sooner or later, if Miss Brcic does not take the step that I have suggested - namely, returning to Patten J and asking him to impose a stay - no doubt the Halifax will take action and there will be a bailiff's appointment. But she has time to deal with the matter without the intervention of this Court. The application is dismissed. Order: Application refused. Transcript of judgment to be provided to the applicant at public expense. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII