Lemas & Anor v Williams

An appellate court will not order a re-trial merely because a party later wishes to advance a case or documents which he chose not to put before the trial judge. Under CPR Part 52.11(3), the appellant must show that the decision was wrong or was unjust because of a serious procedural or other irregularity.

A judge must give a litigant in person a fair opportunity to present his case, but must not advise him what case to make or what evidence to call. An alleged failure of service should ordinarily be addressed by an application to set aside the order at first instance, not by inviting the Court of Appeal to exercise that original discretion.

Mr Williams, the registered proprietor of a house, obtained a possession order in Bow County Court against Mr Lemas, Mr Sealy and two occupiers. Mr Lemas contended that the house had been settled on trust, with Mr Lemas and Mr Sealy as trustees, and that the trustees had authorised the occupation.

The trial judge rejected that case. Although some reasons given for questioning the validity of the trust deed were legally mistaken, he found that the house had not been included in the trust property when Mr Williams signed the deed. Mr Lemas and Mr Sealy sought permission to appeal out of time. Mr Lemas alleged unfairness in the conduct of the trial. Mr Sealy alleged non-service and challenged the orders against him.

Rimer LJ, with whom Sullivan and Mummery LJJ agreed, refused both applications for extensions of time and permission to appeal.

1. The trial judge had erred in treating absence of a seal as invalidating the trust deed and in holding that an undischarged bankrupt could not be a trustee. Section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 meant that sealing was unnecessary. Those errors did not undermine the dispositive factual finding that the house was not included in the trust schedule when Mr Williams executed the deed. That finding was open on the evidence, was not challengeable on appeal, and defeated the claimed authority of the supposed trustees to permit occupation.

2. Further, an intention to settle a house before its acquisition would not automatically impress it with a trust once acquired. Without a contract to create the trust, the intended settlement would remain incompletely constituted and equity would not compel its constitution for volunteers.

3. Mr Lemas had not shown that the decision was wrong or unjust by reason of a serious procedural or other irregularity under CPR Part 52.11(3). He had adequate opportunity to prepare and present his case. His later wish to rely on further evidence did not justify a re-trial, since he had declined to give evidence or prove the documents despite the judge explaining the consequences.

4. The judge had properly respected the limits of judicial assistance to a litigant in person. Fairness required an opportunity to present the case, not judicial advice about what case or evidence to advance.

5. Mr Sealy’s proper course, if he asserted non-service, was to apply in the county court to set aside the order. The Court of Appeal could not exercise that original discretion. In any event, his substantial and unexplained delay after learning of the order independently justified refusal of an extension. The court considered Nelson and another v Clearsprings (Management) Ltd [2006] EWCA Civ 1252 as confirming that relief for non-service is discretionary.

• Court of Appeal (Civil Division) In [2009] EWCA Civ 360, the court refused both applicants extensions of time and permission to appeal.
• Bow County Court His Honour Judge Hornby ordered possession of the house and made costs orders against all defendants on 16 August 2007.