Banks & Anor v Cox & Anor [2001] EWCA Civ 589 (20 April 2001)

Neutral Citation Number: [2001] EWCA Civ 589 A3/2001/0226 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE COURT OF APPEAL (LORD JUSTICE SEDLEY) Royal Courts of Justice Strand London WC2 Friday, 20th April 2001 B e f o r e : LORD JUSTICE JONATHAN PARKER ____________________ (1) GRANT RUSSELL BANKS (2) JANINE ELAINE BANKS Claimants - v - (1) JOHN COX (2) SONIA SHANE COX Respondents ____________________ (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2AG Telephone No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ The Claimant appeared in person The Respondents did not attend and was unrepresented ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Friday, 20th April 2001 LORD JUSTICE JONATHAN PARKER: This is an application by Mrs Janine Banks, the second-named claimant in the action (the first-named claimant being her husband, Mr Grant Russell Banks), whereby she seeks a variation of an order made by Sedley LJ on 3rd April of this year. The action arises out of the purchase by Mr and Mrs Banks from a Mr and Mrs Cox (the defendants in the action) of a nursing home known as the "Grenville Nursing Home". As I understand the position (I have not seen the papers in the action) Mr and Mrs Banks allege (among other things) fraudulent misrepresentation by Mr and Mrs Cox, and they claim damages. Mrs Banks, who has appeared in person this morning to make this application, tells me that the damages claimed amount to some £450,000. Also joined as a defendant in the action is a firm of solicitors, Messrs Stones Cann Hallett. The action has had a very unsatisfactory history. It originally came on for trial before Lloyd J in April 2000, when he dismissed the claims against all three defendants. The judge refused permission to appeal, and Mr and Mrs Banks accordingly applied to the Court of Appeal for such permission. The Court of Appeal granted permission to appeal against the dismissal of the claims against Mr and Mrs Cox, but refused permission to appeal against the dismissal of the claim against the solicitors. The substantive appeal was heard in July 2000 and was successful in that a retrial was ordered. The retrial took place before Lawrence Collins J in November or December 2000, and on this occasion the claims against Mr and Mrs Cox succeeded. By his order dated 21st December 2000 Lawrence Collins J entered judgment against Mr and Mrs Cox for damages for fraudulent misrepresentation to be the subject of an inquiry, and costs, including the costs of the original trial and the successful appeal therefrom to the Court of Appeal and the costs of the retrial. The judge went on in his order to give directions as to the conduct of the inquiry. The judge also made a freezing order against Mr and Mrs Cox limited to the sum of £400,000. He further directed that Mr and Mrs Cox pay to Mr and Mrs Banks on or before 12th January of this year the sum of £100,000 inclusive of Value Added Tax on account of their liability to pay Mr and Mrs Banks' costs. Mrs Banks tells me that to date no payment has been made pursuant to that direction. Indeed she has told me that Mr and Mrs Cox are in no position to make any such payment, a fact which is, I think, confirmed by a communication which I have received from Mr or Mrs Cox to which I shall refer in a moment. Lawrence Collins J refused permission to appeal but Mr and Mrs Cox applied to the Court of Appeal for such permission. That application came before Sedley LJ on 3rd April last, when he made the order which Mrs Banks now wishes to vary. By his order, Sedley LJ directed that the application for permission to appeal come before the full court, "with appeal to follow if the permission to appeal is granted." The order goes on to provide that the application be listed for hearing as soon as practicable after the Easter vacation, that is to say this current vacation, with a time estimate of one and a half days. I understand from the Civil Appeals Listing Office that the application (and the substantive appeal if the application is successful) are presently listed for hearing next October. Mrs Banks seeks a variation of Sedley LJ's order so that the application for permission to appeal can be heard separately, as a free-standing application, and as soon as possible. She has told me, as I indicated earlier, that she and her husband have so far received no payment on account of costs under the order of Lawrence Collins J. She has further told me that she and her husband are in dire financial straits and that bankruptcy is a real and imminent possibility. She has also provided documentary material which substantiates this. She has also told me (and I accept without hesitation) that prolongation of this litigation is causing great mental anguish to all parties concerned and that both her husband and Mr Cox are in a state of serious ill-health as a consequence. She wishes the application for permission to be heard separately, and as soon as possible, so that if it were to be unsuccessful (and I must make clear that I am in no position to form any view as to its prospects of success) the litigation will thereupon be brought to an end. If, on the other hand, it were to succeed, then Mr and Mrs Cox will not have been prejudiced since the substantive appeal can then take place in October as presently planned. Although notice of this application was given to Mr and Mrs Cox pursuant to an indication from the Civil Appeals Listing Office that such notice should be given, neither Mr nor Mrs Cox has appeared this morning. However, they have sent a fax message to the court which I have read and which Mrs Banks has also seen. In that fax they set out their reasons for strongly opposing Mrs Bank's application. Their first reason is, I am afraid misconceived, in that they state that the application, coupled with the substantive appeal if the application succeeds, is earmarked for hearing next July or sooner. That unfortunately is not the position. As I have already indicated the application and the substantive appeal are listed for hearing in October. The fax goes on to say that, notwithstanding Mr and Mrs Cox do not accept that a delay will be caused, the respondents, that is to say Mr and Mrs Banks: "Should be in a much better financial condition than ourselves. Unlike them, we had no legal insurance at the outset. Unlike them, we have received no Legal Aid. We have exhausted all our savings and disposable assets. We have had our remaining assets frozen since the retrial verdict in December, 2000. We have received no rent for the lease on Grenville Nursing Home since December 22nd, 2000 (in itself a 'saving' to the Respondents of £16,666.68 to date)." I need not I think set out in detail the remainder of the faxed message. I have read it and duly considered it. In the circumstances I have no doubt whatever that the right course is to vary Sedley LJ's order so as to split off the application for permission to appeal from the substantive appeal itself should the application for permission succeed. The effect of that will be that the application for permission to appeal can then come on for hearing in the normal way as a free-standing application. If it is unsuccessful then that brings the litigation to an end and Mr and Mrs Banks will have the benefit of Lawrence Collins J's judgment, for what that may be worth. If it succeeds then Mr and Mrs Cox will be able to present the substantive appeal in October of this year. I am not going to make a formal direction for expedition of the application for permission, but I have no doubt that the Civil Appeals Listing Office will do all it can to ensure that there is no unnecessary delay in listing the application for hearing. Certainly in the sad circumstances to which Mrs Banks has referred it is in the interest of all parties to this litigation that matters proceed with as much expedition as is reasonably possible. Finally, I should perhaps repeat, lest there be any doubt about it, that in varying Sedley LJ's order I express no view whatever as to whether or not the application for permission to appeal may succeed: indeed I am in no position to do so because, as I said earlier, I have not seen the papers in the action. Accordingly, I vary Sedley LJ's order in the manner which I have indicated. (Application granted). BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII