National Westminister Bank Plc v Kitch

A summary determination under CPR 24.2 is compatible with Article 6 of the European Convention on Human Rights where the defendant has no real prospect of successfully defending the claim. A public hearing does not require a full trial of a claim that has no real prospect of success.

Under CPR 52.7, an appeal does not automatically stay the order appealed from. A stay is discretionary, and the merits of the proposed appeal are a central consideration. A refusal of a stay will not be impugned where the proposed appeal has no real prospect of success.

The bank obtained judgment against Mr Kitch for an overdraft and later sought possession of property charged as security for the debt. A deputy district judge struck out his defence and made a possession order. Judge Graham Jones dismissed Mr Kitch’s appeal on 17 January 2000.

A deputy district judge later refused a stay of execution of the possession order. Judge Masterman dismissed Mr Kitch’s appeal from that refusal on 25 August 2000. Mr Kitch sought permission to appeal both county court orders. He contended that the summary procedure under CPR 24 breached Article 6 of the European Convention on Human Rights, and that he was entitled to a stay pending appeal.

1. Both applications for permission to appeal were refused. Lord Justice Tuckey held that there was no prospect of altering Judge Graham Jones’s order dismissing the appeal from the possession order.

2. CPR 24.2 was not incompatible with Article 6 of the European Convention on Human Rights. Article 6 requires a fair and public hearing. It does not prevent summary determination where a defendant has no real prospect of successfully defending the claim. The applicant’s hearings had been public, and there were sound policy reasons for determining such a claim summarily.

3. The applicant’s allegation that an affidavit in the earlier debt proceedings was perjured could not assist him. On his own account, the sale proceeds could not discharge both overdrafts. He would therefore have remained indebted to the bank, and that debt was secured by the charge over the property. There was accordingly no defence to the possession claim.

4. CPR 52.7 provided that an appeal did not operate as a stay unless the appeal court or lower court ordered otherwise. The grant of a stay was discretionary. The deputy district judge and Judge Masterman were entitled to treat the prospects of the proposed appeal as a major consideration. Since the applicant had no real prospect of succeeding, the refusal of a stay could not be criticised.

5. The applications were refused, with no order for costs.

• Court of Appeal (Civil Division): Refused permission to appeal from both county court orders in [2001] EWCA Civ 743.

• Cardiff County Court: Judge Graham Jones dismissed the appeal from the possession order on 17 January 2000. Judge Masterman dismissed the appeal from the refusal of a stay on 25 August 2000.

• Deputy District Judge: Struck out the defence and made a possession order in favour of the bank; subsequently refused a stay of execution of that order.