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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 >> Kelsey (t/a Terry Kelsey Property Improvements) v Streatfeild [2002] EWCA Civ 214 (4 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/214.html Cite as: [2002] EWCA Civ 214

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(His Honour Judge Morton Jack)

		Royal Courts of Justice Strand London WC2 Monday 4th February, 2002

1. LORD JUSTICE KAY: This is an application by the defendant for permission to appeal from a judgment of His Honour Judge Morton Jack given on 24th October 2001 sitting in the Oxford County Court, by which he ordered the defendant to pay the claimant £4,357.55, plus interest and costs.
2. The case concerned monies owed to Mr Kelsey for building work done for Miss Streatfeild on a house at Glyme Bank between the period of June 1997 and June 1999. The claimant is a builder and the defendant was an architectural design consultant. They had worked together on a number of building projects. The defendant obtained permission to build a house on land she had. She invited the defendant to carry out groundwork for the house. The judge found that the agreement at that stage was that it would be done on a time and materials basis.
3. In May 1999 she wanted the house completed and so she asked the defendant to do it. Again it was agreed that the work should be done on a time and materials basis. The parties very quickly thereafter fell out, and by June 1999 work came to a halt. It was then completed by others.
4. So far as payment for the work was concerned, in June 1997 Miss Streatfeild was invoiced for the first part of the work that was done and she paid that invoice. Following the falling out, she was again invoiced for the work that had been completed and the materials that had been used. That invoice was dated 30th June 1999 and subsequently was revised on 6th July 1999. The defendant then calculated what she considered should have been owed and paid the claimant £4,968.71 on 8th July 1999. The outstanding balance at the time was £9,391.29, which was later revised by being reduced to £8,825.55 by the invoice dated 22nd July 1999. It was that sum that was claimed plus interest.
5. The defendant issued a counterclaim, and on the basis of her complaints and calculations paid £3,045 on 13th December 1999. Judge Morton Jack, having heard all the evidence in the case to which I shall return shortly, ordered that the defendant should pay to the claimant £4,357.55, which was the outstanding balance due on the invoice dated 22nd July 1999.
6. In reaching his decision, Judge Morton Jack found that the parties had agreed on both occasions to a rate based on time and materials. He accepted the evidence of the claimant that the defendant was aware that £14 per hour was the rate for labour costs. He did not find the charge to be unreasonable and accepted evidence from Hutchins Guide 1999 to that effect. He rejected a number of allegations made by the defendant as regards the claimant and his witnesses. Judge Morton Jack commented that the claimant's approach to the matter and issues raised by the defendant had been "generous". He found that the defendant had "complained about everything" and said that he could not accept her evidence as it had been given in court.
7. The defendant now seeks permission to appeal against the judge's decision. She has put before the court written grounds and a written skeleton argument, and has also addressed the court for something like an hour today explaining the nature of her grievance. The first thing that has to be understood is that in no respect is an appeal any sort of rehearing. I am satisfied that the defendant fully understands that, and so she has sought to address her complaints about the way in which the matter went on in the court below. She makes a number of complaints about the conduct of the hearing in the court below, and as a result invites the court to grant permission.
8. The first complaint is that the judge during the course of evidence intervened on a number of occasions when she was cross-examining witnesses and when she was trying to give evidence herself, and as a result put her off her stride so that she was unable properly to present her case. She was unable to make notes of the evidence while she was cross-examining, and that deprived her of the chance of pursuing lines that she would have wished to do. The judge's interventions she claims also had the effect that, although she had a prepared list of questions that she wished to asked, when the judge intervened and took the matter off course, she lost track of where she was going and as a result omitted things that she wanted to place before the court.
9. The first thing that has to be said about the trial is that, notwithstanding the subject matter to which I have referred, which is clearly something which one would not expect to take a huge amount of the court's time, the hearing of this matter lasted for three days. That must have been a concern to the judge. No litigant is entitled to take up a disproportionate amount of the court's time and, being realistic about it, three days for a matter of this kind is certainly a great deal. It can come therefore as no surprise that the judge thought it right to try and keep the matter to the issues that he had to decide, to try and advance the matter where witnesses had given answers to questions and to try and keep the whole process moving.
10. I have been afforded this morning for the first time an opportunity to see transcripts of the whole proceedings. Clearly since those were presented for the first time at court I have not had an opportunity to read through them from cover to cover. But the reason why I have permitted the applicant longer time than normal is so she could take me to proper examples of the conduct about which she complains. I have read each of those passages to which she refers. I do not see any evidence at all in the passages to which I have been referred of any improper intervention on behalf of the judge. A judge trying a matter of this kind, particularly one which is lasting a long time, has a number of responsibilities. His first and primary one is to understand for himself the evidence that is being given and the issues that are being raised in cross-examination and in evidence. The judge intervened so that he could understand those matters. It seems to me that those were proper interventions directed to that purpose.
11. The judge also has a duty to see that the matter is conducted fairly from both sides' point of view. Again, where a person not accustomed to cross-examining is cross-examining, the judge therefore has a duty to make sure that the witness understands the questions before giving answers. I have seen nothing which comes outside that sort of intervention. I therefore reject the suggestion that there were interventions of a kind that were improper.
12. It is difficult, and one recognises that, for a litigant in person to conduct a case before the courts. I do not believe the judge was meaning to be unhelpful. I believe that he was meaning to keep her to those matters that really did count in the case, so that the matter could proceed properly. I also believe that he was wanting to understand for himself what it was that was being said to be the significance of matters which, on the face of it, either had no apparent significance or only minimal significance. That is why he asked her questions even when she was cross-examining to see where it was all going. One sees transcripts of this kind, even where professional advocates are cross-examining, and I do not think the judge was being in any way unfair to her because she was a litigant in person. Indeed, I think his interventions were the sort on many occasions which would have been welcomed by an inexperienced advocate.
13. The second complaint is that the judge was not even-handed. If he was going to intervene in relation to her case, he should have intervened in relation to the claimant's case. I see no evidence of unfairness in the terms of favouring one side rather than the other. Those passages to which I have been taken seem to me to be passages in which the judge is really trying to get to the bottom of the case. Of course since the claimant had a professional advocate there would not have been the same need for the judge to either intervene in terms of finding out where the matter was going, since the advocate would realise the need to make that apparent, or intervening in order to try to keep the matter flowing. I have seen no evidence of unfairness of that kind.
14. Then it is suggested there were passages during which the judge supplied the answer to witnesses. The examples that I have been given of that were examples where the judge was referring back to earlier evidence already given by the witness. On one occasion he was clearly not sure if he had got right what the witness said, and his question was to quote what he believed to have been said and ask the witness if he had got it right. The witness confirmed that he had. There is nothing the remotest bit improper in that approach.
15. Then it is said that he ignored significant parts of the evidence, and having ignored them failed to give weight to those matters upon which the defendant relied. In so far as I have been able to follow the arguments in that regard, I do not think that that is so. A judge does not to have to deal with every single aspect of the evidence in the case. He only has to deal with those matters that were crucial.
16. The one matter of crucial importance that he did undoubtedly comment upon and upon which reliance is placed is the fact that there was a document which the defendant alleged had been forged subsequently. The judge found that he accepted the evidence of the witness that it had been a contemporaneous document and not subsequently forged. He rejected the suggestion to the contrary. In so far as the defendant had not received that document, the judge found that it was possible that it had been inadvertently omitted from the letter sending it to her. But he was satisfied that it had in fact been prepared at the time.
17. The defendant in her submissions to me says that that was a finding that the judge really could not have made if he had approached the evidence in a balanced way. There are three separate documents. One of the documents is a document where it is conceded that there was no detailed calculation attached to it and it makes no reference to any document being attached. Another is one where it was common ground that a document was attached and there is a reference to it being attached. Hence, argues the defendant, that since the third document was a document that made no reference to anything being attached, the logical conclusion is that no document was attached to it.
18. That in itself is not an argument that could properly be a basis for a finding in itself that somebody had subsequently forged the document. It is inconclusive one way or the other, even if it tends to point in one direction rather than another. The critical matter was that the judge, who had the opportunity of hearing at length both parties, believed the claimant on this particular matter; he disbelieved the defendant on other matters. So far as I am concerned, there is no prospect that the Court of Appeal could be persuaded that the judge was not entitled to come to that conclusion. The court would recognise that the judge had had a proper opportunity to assess the matter. He reached very clear conclusions and he stated those conclusions. He did not deal with every single point that the defendant made. That in my judgment does not weaken the force of his critical findings as to who he believed and who he did not.
19. I well understand that the defendant feels a sense of grievance about this matter and thinks that the judge got it wrong. But that is not what this court is concerned with. The court is concerned with whether there is any evidence to demonstrate that the judge did in fact either misbehave during the course of the hearing, or alternatively reach a conclusion that no judge properly could. There is no evidence to indicate in any way either of those matters. It follows that any appeal would be hopeless.
20. For those reasons, I refuse this application.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)