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||Neutral Citation Number:  EWCA Civ 1016
||Case No: A3/2007/2030
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE LAGAN QC)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||8th May 2008
B e f o r e :
THE CHANCELLOR OF THE HIGH COURT
(SIR ANDREW MORRITT CVO)
LORD JUSTICE RIX
LORD JUSTICE RIMER
||- and -
(DAR Transcript of
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THE APPELLANT APPEARED IN PERSON.
Mr A Kramer (instructed by Halifax Legal Services) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
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Sir Andrew Morritt:
- This is the appeal of Mr Nelson brought with the permission of Rimer LJ from the order of HHJ Langan QC made on 6 August 2007 whereby he summarily dismissed a claim of Mr Nelson.
- The facts of the matter are briefly that there was a freezing order made by HHJ Kaye QC on 20 January 2006 in Leeds against Miss Shareen Veronica Hamley. It was limited to the sum of £7,000. Although at one stage Mr Nelson was inclined to suggest that the order was without effect, he accepts for the purposes of this appeal that the order was valid and effectual. In the light of some submissions he made it is appropriate that I refer in terms to the expressed terms of the injunction.
- After the normal introduction in paragraphs 1 to 4 it reads:
"5. Until 7 March 2006 or further Order of the Court, the Respondent [that was Miss Hamley] must not remove from England and Wales or in any way dispose of, deal with or diminish the value of any of her assets which are in England and Wales up to the value of £70,000.00.
6. Paragraph 5 applies to all the Respondent's assets whether or not they are in her own name and whether they are solely or jointly owned. For the purposes of this Order the Respondent's assets include any asset which she has the power, directly or indirectly, to dispose of or deal with as if it were her own. The Respondent is to be regarded as having such power if a third-party holds or controls the asset in accordance with their direct or indirect instructions.
7. This prohibition includes the following asset in particular:-
(a) The Respondent's interest in the property known as Plot 9, High Meadows, Thornhill, Dewsbury…or the net sale money after payment of any mortgages once it has been sold.
(b) Any money belonging to the Respondent in any bank or building society account.
8. If the total value free of charges of other securities ('unencumbered value') of the Respondent's assets in England and Wales exceeds £70,000.00 the Respondent may remove any of those assets from England and Wales or may dispose of or deal with them so long as the total unencumbered value of those assets still in England and Wales remains above £70,000.00"
And then paragraph 10(i) provides:
"This Order does not prohibit the Respondent from spending £500.00 a week towards her ordinary living expenses and also a reasonable sum up to a limit of £10,000.00 on legal advice and representation. But before spending any money the Respondent must tell the Applicant's legal representatives where the money is to come from."
- The order was duly served on the respondent, Halifax Plc, on 23 January 2006 and it duly froze the current account and savings account in the joint names of Miss Hamley and Mr Nelson. They were then in credit to the tune of £2,452 and £1,189 respectively. Then on the following day, 24 January 2006, the Halifax wrote to both Mr Nelson and Miss Hamley as the account holders as to the terms on which they might withdraw money from either account. The letter says this:
"Your account will remain frozen until we receive a further Court Order telling us to remove the freeze.
The Order does allow you to take £500.00 per week out of your account on a weekly basis. But this is only when you have confirmed to the Petitioner's solicitor where the allowance will be taken from. You will have to bring the confirmation letter with you each time you want to make a withdrawal.
Please note that to help us administer this arrangement you can only make these withdrawals in person from our branch at Moortown, Leeds."
- The order was duly served on Mr Nelson on 26 January and on or about that time he would have received the letter from the Halifax from which I have just quoted. In due course, correspondence ensued between Mr Nelson on the one hand and the Halifax on the other. On 18 April 2006 Mr Nelson complained of the conduct of the Halifax in freezing the joint accounts, specifically on 27 April and 12 May, as "a negligent breach of contract". On 3 May the Halifax responded, relying on condition 23 with regard to the savings account and condition 29 in regard to the current account, in each case contained in its standard banking conditions. On 4 May Mr Nelson responded, suggesting that neither condition applied to the freezing order and was no part of the contract with him as he had never seen the conditions before that date.
- On 9 June 2006 the freezing order was discharged at the request of the applicant for it. However, no order was made on various applications of Mr Nelson to strike out (inaudible) application. The freeze on the current account was removed on 14 September 2006 but that on the savings account was not lifted until late October when notice of the discharge of the order was finally given to the Halifax.
- On 6 October 2006 Mr Nelson issued the Part 8 claim form with which we are concerned, to which were attached Particulars of Claim settled by counsel. The relief sought is a declaration that the injunction, that is to say the freezing injunction:
"…did not require or authorise the Defendant to freeze the Claimant's bank accounts or otherwise to deny the Claimant access to the balances in his accounts."
In addition Mr Nelson sought:
"damages suffered by the Claimant as a result of the Defendant's said actions."
- The claim form was supported by Mr Nelson's first witness statement, which was made on 3 October. In that document he alleged that the freezing order was made in non-existent proceedings. He asserted that he provided a copy of the order discharging the freezing order on 9 June to the Halifax on 7 July --that allegation was subsequently withdrawn -- and he complained that the Halifax had failed to notify him of the unfreezing of the current account on 15 September 2006.
- As I have indicated the claim form was accompanied by Particulars of Claim. They were settled by counsel on Mr Nelson's behalf. It started by setting out the details of the joint accounts and the balances thereon, both at the date of the freezing order and of the pleading. Mr Nelson claimed that, as against Miss Hamley, he was entitled to the entire balances on both accounts. He set out the restrictions on the operation of those accounts imposed by Halifax as indicated in the letter of 24 January 2006 and the fact that the Halifax had justified its conduct as necessary to comply with the freezing order. In paragraph 9 Mr Nelson set out a number of reasons why, in his contention, such conduct was not so justified including the value of the land as being in excess of £70,000 and the absence from the order of any requirement to produce a solicitor's letter or only proceed with withdrawal from a specified branch.
- In paragraph 10 of the Particulars of Claim the allegation is in the following terms:
"For the avoidance of doubt it is the Claimant's case that the Freezing Order did not require or permit the Defendant to act outside the terms on which the Current and the Savings Account were held."
- In paragraph 11 Mr Nelson averred that the restrictions continued beyond the time that the freezing order was discharged, and the concluding paragraph set out the claims for a declaration and for damages and interest as I have already indicated that they were in the claim form.
- In due course on 31 October 2006 the Halifax was told that the order had been set aside and the surviving freezing order was discharged and the Halifax removed the freeze on the accounts. On 2 November 2006 Halifax served the defence to the Part 8 claim issued by Mr Nelson. In due course they amended that document and I shall refer to it as amended in due course.
- The matter came before Deputy Master Behrens on 4 January 2007. He made an order in the following terms:
"that the issue of whether the Freezing Order (in the circumstances in which it was obtained and later discharged) required or entitled the Defendant to freeze the Claimant's accounts be tried as follows"
And then the directions for trial were set out.
- In accordance with that order the issue came before Pumfrey J on 3 May 2007 and he seemingly just transferred it for hearing in Leeds but he varied the previous order of the Master in paragraph 3 of his order in these terms:
"That there be heard all facts and issues arising out of the Particulars of Claim and the Defence for which purpose the Claim is to carry on as if commenced as a Claim under Part 7 of the Civil Procedure Rules."
And the matter in due course came before HHJ Behrens in Leeds on 13 July 2007 who directed that it should be tried as soon as possible.
- On 17 July 2007 Halifax amended its defence. The defence did indeed rely on the freezing order and the need to comply with it but in addition it admitted and averred its contract with the account holders. It relied on two specific provisions in its banking conditions as "entitling it under the terms of its contract to freeze the joint accounts". The action so constituted came before HHJ Langan QC on 6 August 2007. Its course may be followed in the transcript of the events which then occurred and it is necessary that I should refer to the transcript in some detail.
- In his opening Mr Nelson stated that his action was not in contract but in tort. He summarised it as being:
"…for negligently and unlawfully freezing the accounts, thereby unlawfully interfering with the Claimant's guaranteed right to quiet enjoyment of his money."
- He then explained why he contended that the freezing injunction did not have to be complied with by Halifax and repeated his contention that the defendant negligently froze his accounts at the passages to which I refer on pages 111 and 114.
- Then on page 115, in answer to the judge's question how the challenge of Mr Nelson was mounted, Mr Nelson replied:
"In accordance with the Mareva procedure point."
The judge then at page 116 turned to the Particulars of Claim. And I pick it up from the transcript. At line 27 he said:
"Yes. You see my problem at the moment is this, I did obviously over the weekend read your skeleton argument and the chronology and so forth, and I had not quite appreciated it, it is maybe my fault, that the action is framed in negligence."
Counsel for the Halifax then popped up and said well that was his understanding too. And the judge continued at line 32:
"Yes, you see the problem about negligence is this, that it really must be fundamental in any claim for negligence for the duty of care to be pleaded, which may not be terribly difficult in this case, but also for particulars of negligence to be properly pleaded so that the mind or the minds, both of the Defendant and of the Judge, are focussed on precisely what the decision of the Court is going to be about.
I would have thought, but I mean I will hear what you both have to say about it, that if the case is going to be put forward in negligence we will have to have properly pleaded particulars of the duty of care and of the alleged breaches. I mean I think I know what the alleged breaches are going to be but the Defendant is still entitled to have them in writing."
- There was then a further intervention by counsel for the Halifax and then at line 19 on page 117 the judge turned to Mr Nelson and said:
"JUDGE LANGAN: Now, Mr Nelson, would it be possible for you…, given an hour or so, to draft a proper pleading in negligence? I mean, by way of amending the Particulars of Claim or adding to them, just to plead in the usual way, duty, breach and damage
MR NELSON: It would be possible do that my Lord but the question is, is it necessary?
JUDGE LANGAN: Well, I think it is necessary because, I mean, I don not see how one can possibly begin to decide issues that are in negligence unless they are properly framed."
And he then went on to illustrate his problem and counsel for the Halifax indicated that he had the right problem. Then at the foot of the page at line 34 the judge said:
"But I think as a first step we have got to have these particulars drafted."
- There was a further discussion with counsel for the Halifax. On page 119 at line 10 the judge returned to the point and he said to Mr Nelson:
"Well, I appreciate that, but if it is possible to determine all the issues on the basis of pleadings which are to Mr Nelson's liking, if I may put it like that, which put his case the way he wants to put it, we should steam ahead and do that, and all I want to see at the moment is whether, on a review of fresh pleadings put in by Mr Nelson, it is possible, and you are perfectly free to say when these are produced that it is simply not possible to proceed on these pleadings and you will be able to put forward arguments as to the consequences -- one of which might be that the action is simply dismissed. The other might be that it went on to another day."
And then to Mr Nelson:
"Let us just see whether we can shoehorn everything into the two days that we have got allotted."
And he discussed how long an adjournment to allow to Mr Nelson. Mr Nelson then responded:
"MR NELSON: I do not wish to appear obstructive, and I am not being obstructive. Your Lordship is doing this apparently for my benefit"
"JUDGE LANGAN: No, it's not entirely for your benefit. You produced a skeleton argument which leads me to understand that this is a contract case, and indeed the pleadings would give one the same impression, and [counsel for Halifax] it seems prepares for trial on the basis that this is a, what might be called banking/contract case, and then when you come to Court this morning and put forward your opening you expressly disclaim any reliance whatever on contract.
MR NELSON: Because there was no contract
JUDGE LANGAN: Well, no, but so far as the case is pleaded as thought it were a contract case, paragraph 10 of your Particulars of Claim says…"
And he then quotes it. Mr Nelson's response was inaudible and the judge continued:
"Well, all right, but that led the reader to understand, it led me to understand that these were accounts maintained on certain terms and that in breach of those terms the Defendant operated the accounts in some other manner."
- Counsel for the Halifax then intervened to say that if negligence was pleaded he would contend that it was not open to Mr Langan in view of the history of the matter and the failure to mention it before. The judge indicated that he would be prepared to hear argument on that and added:
"I do not exclude that, but at least let us lay the foundation by having before the Court the proposed pleading in negligence, and all I would want from Mr Nelson would be, not a complete redraft of the Particulars of Claim but an allegation in the usual way of the duty of care and alleged breaches…I do not see how we can possibly proceed without those, and, Mr Nelson, it is for your benefit frankly, because if you disclaim anything other than negligence, which you have done, the whole of this cause of action goes."
- And then Mr Nelson observed that this was a question of law and there was not a single word about negligence in his pleading. He reminded the judge of Lord Denning's strict observations about pleading facts and not law and added:
"It is for the Court to decide the category of [the] Defendant's liability and the extent of it. I have -- these pleadings were drafted by Counsel, the facts are set out in the witness statements supporting them. If the facts do not disclose a cause of action so be it. If the pleading does not disclose a cause of action, so be it. The Defendants took it upon themselves to commit a tort, what Lord (inaudible) described as a statutory tort. The Defendants deliberately, negligently invaded the Defendant's right to quiet enjoyment of his money. That is a cause of action. They do not deny it. They seek to justify it on the basis of an injunction which was totally void… That has been adequately pleaded. I am not saying that the Defendants owed me a duty of care, except this duty of care which is defined by statute. They are not entitled to deprive me for ten months of the use of my money. That is a tort, and that is what I am suing for."
To which the judge said "Yes, thank you very much" and proceeded to give a judgment. This is on page 122 and 123. In the course of that he said this, this is 123 line 9:
"It seems to me to be of the essence of proceedings in any action brought in negligence that the Claimant should, in the conventional way, plead and set out to prove first the duty of care and second the various ways in which the duty is alleged to have been broken. I do not think that that is a pedantic approach…a pedantic or old-fashioned approach to pleadings. It is necessary, in the interests of justice, to focus the mind of the Defendant on the allegations which he has to meet, and the mind of the court on the precise issues which it has to decide. I do not accept, as I think Mr Nelson invited me to accept, that the case is one in which the facts speak for themselves, and in which -- as it were -- the court can, at the end of the day, simply characterise particular findings of fact as establishing, or not establishing, negligence.
Accordingly, I am simply not prepared to proceed with a trial at twenty past eleven on the first day of a listed hearing, a trial said to be…where the Claimant rests his case on negligence, but has not pleaded negligence in the ordinary way."
And there I conclude the citation from that part of that judgment.
- The judge then indicated that he was going to adjourn and would allow a certain amount of time for Mr Nelson to formulate his amendment, that is to say until 2.00 and Mr Nelson asked what he was required to do. The judge responded:
"…you are required to draft a pleading which sets out, in the conventional way, the duty of care upon which you rely; any other duties upon which you rely and the particulars of breaches."
To which Mr Nelson replied:
"Well I can do that straight away … now".
The judge indicated no, he wanted it in writing.
- There was then a short adjournment and on the judge's return Mr Nelson said this, page 124 line 11:
"My Lord, the position is this. Pumfrey J sent this case to be tried on the pleadings and the issues arising out of the pleadings. HHJ Behrens, on 30th June, did the same. He ordered that this case be tried on all issues arising on the pleadings. I am prepared to proceed on the basis of those two orders for the trial of this case on the pleadings; the defence…first of all the Particulars of Claim, and the amended defence.
The Particulars of Claim are supplemented by the further particulars asked for by the Defendant and given. That constitutes my case and as the two judges have ordered, I proceed to trial on that case."
- The judge then invited Mr Nelson to sit down and indicated that he would look at the Particulars of Claim and then addressing Mr Nelson he said:
"Well, Mr Nelson, I appreciate what you say, but if one looks - you see - at these Particulars of Claim… I am sorry you have both left your bundles outside"
They looked at various paragraphs of the Particulars of Claim including paragraph 10 and the judge continued:
"Now I think I can be forgiven for reading that as an allegation that the Defendant has broken the terms of the contract on which it operates the accounts and that the freezing order provides no defence to the allegation of breach. And yet, you say this morning that you disclaim completely any reliance on contract."
MR NELSON: Well probably I did not make myself clear
JUDGE LANGAN: Well it is very clear in your written … in your written argument.
MR NELSON: Yes, the words are correct my Lord I am not impugning your quotation of words. I said probably the words do not make my point clear enough. The Defendants are relying on two booklets of terms and conditions … Which I saw for the first time when this case began. I know that freedom of contract has largely disappeared from English Law, but you still have to prove (inaudible) ad idem. I have never seen those conditions and terms before they sent them to me during the (inaudible) of this action. They cannot rely on them; they do not form part of the contract."
And then the judge intervened:
"I am terribly sorry. It is you who, in your Particulars of Claim, are relying on a contract.
MR NELSON: A contract, but not that contract.
The judge observed:
"All right…well maybe. Maybe not that contract. But is this action brought in contract or not?
MR NELSON: "The [action] is brought for a declaration
"JUDGE LANGAN: No, is the action… a declaration only sets out the rights of the parties, and you have got really… or the consequences of findings by the court is the complaint against the Defendants put in as a breach of contract, or not".
And Mr Nelson said this at page 125 line 15:
"I do not have to put a label on it my Lord. That is the point I am making. All I have to do is to put all the facts before the court and it is then the duty of the court to fit the law to them. I do not have to plead law. This is what happened. The Defendants have invaded my rights. Call it what you like. Contract. Tort. Trespass. (inaudible)…whatever you like. The Defendants have invaded my rights. That is not in dispute and I seek compensation for that. I have set out all the facts. Suppose I were not a lawyer and just a layman? Would I be told that you have to plead this in technical terms?
JUDGE LANGAN: Well yes, I think the judge would not set you the task of writing it all out word for word, but he would have to be vary careful at the beginning of a case that he knew on what basis the claim was mounted.
MR NELSON: The claim is mounted on the basis of the facts before you."
The judge then indicated that he did not think that was sufficient and he observed at line 28:
"The situation has been reached in which a claim is brought in contract. You have disclaimed any reliance in contract. You have told me that you are alleging negligence and I have given you an opportunity, which you still have, to plead the case in negligence.
MR NELSON: Well your Lordship, I do not wish to plead the (inaudible). I wish my case tried on the basis of the pleadings before you which two judges have said must happen. Now it is only because I asked Pumfrey J to send the case back to me where the whole issue of the freezing injunction had already been determined, and that… (inaudible)… Pumfrey J offered to decide the very issue … (inaudible)… do you want me to decide it now? As a result, counsel went (inaudible) to take instruction on that. Pumfrey J saw no difficulty on the pleading, Judge Behrens saw no difficulty on the pleading. Both ordered the case to be tried on the pleadings, and that is what I am asking. Nothing more."
- And then the judge indicated that he was in some difficulty and invited counsel for the Halifax to address it, following which he turned to Mr Nelson and said:
"Well Mr Nelson I am afraid I am going to have to put you … give you the opportunity either to proceed in contract as notwithstanding what you said earlier and/or to propose particulars of negligence to the court. Otherwise, I just don't see how this claim could possibly, fairly proceed.
MR NELSON: My option is either to amend (inaudible) or proceed on the existing pleading?
JUDGE LANGAN: Or both.
MR NELSON: I proceed on the existing pleading.
JUDGE LANGAN: Well that is a pleading in contract.
MR NELSON: Whatever it is, I proceed on the existing pleading, as ordered by two judges.
JUDGE LANGAN: Well how do you reconcile the existing pleading then with your statement that your action is not in contract?
MR NELSON: Tear up my opening.
JUDGE LANGAN: Tear up your opening?
MR NELSON: And stick to the pleading.
JUDGE LANGAN: Fine … all right. Yes."
- And then there was further discussion of the nature of the claim. Mr Nelson indicated that he wished to proceed on the pleadings as they stood and at page 127 line 17 HHJ Langan said:
"I am terribly sorry. I am not prepared to accept this. As soon as you allege negligence, you must say in what respect.
MR NELSON: Alright. Take out the word.
JUDGE LANGAN: No. Mr Nelson…we cannot conduct litigation in this way. We really cannot. There has got to be clarity as to what the court has to decide and it is no good saying the claim is negligently and then at a word from the judge just saying "We'll chuck that out." I mean, you really ought to know that litigation has to be attacked rather more -- I do not quite know what the word is – with…rather more precision than that."
And then Mr Nelson referred to the overriding objective and the judge said:
MR NELSON: It is not pleaded. And if it is not pleaded, it is not before the court
JUDGE LANGAN: Well what tort then do you rely on?"
And Mr Nelson indicated that he relied on the tort "of invading my…right to quiet enjoyment of my possessions. That is the cause of action". The judge indicated that he understood that and he said:
"So the cause of action … the cause of action is invading…"
And Mr Nelson interposed to say:
"One of the causes of action is invading…"
- And then later on on page 128 the judge referred to examples of the damage that Mr Nelson was claiming and continued:
"I accept that you have mentioned invasion of a convention right and we will have to look into the law about that no doubt in due course, but I take it that there is now a disclaimer on your part of reliance on contract: a disclaimer of reliance on the common law tort of negligence and that you focus the case on interference with your convention rights. Is that it?
MR NELSON: I (inaudible) disclaim contract. If a customer goes into a bank and opens an account and the bank accepts his money, whether or not there is a contract between them … an express contract between the bank and the customer, the law (inaudible) the contract with the minimum terms. Now the bank may say to the customer 'Before we can operate this account you have to sign these terms and conditions. That will constitute a contract between us'. But, in the absence of that, the law implies that there is a contract between customer and banker by the mere acceptance of the customer's money, just as I if I started working for firm X and I do not have a written contract, the law would imply a contract of the employer and employee, with the minimum terms. That is the situation here. What I am objecting to -- quite rightly -- is this reliance by the bank upon two booklets of … terms and conditions which I never saw until a few months ago. That cannot form part of the contract. That is what I am saying here.
JUDGE LANGAN: I see. Well look, I am not terribly concerned at the moment to look into what the defence to your claim may be. What I am anxious to do, so that we all know where we are going, is to see how your claim is founded. I am … at this stage, I am uncertain whether your claim is founded on breach of contract or not. I know that your claim is not founded on negligence because you have said so. I know that your claim is founded on a breach of your convention rights. So from what you have said -- so far -- I am sure on the last two matters. I am not sure on the first matter. The first matter is whether this is a claim in contract or not.
MR NELSON: I have not pleaded (inaudible); I have not proved any and I am not relying on the contract.
JUDGE LANGAN: All right. Well then it is…
MR NELSON: I am not relying on the contract.
JUDGE LANGAN: Yes. It is an action based purely on breach of your convention rights."
Mr Nelson replied:
"It's an action based on the facts which are before your Lordship. And if your Lordship cannot distil a cause of action from that, so be it, but the action is based upon all the facts before you which two judges have found sufficient to constitute this trial. If I am wrong, I am wrong with them. At least I have an order for trial of the action as it is constituted … two orders, actually … well three, because the Deputy Master … Pumfrey J was quite prepared to try it. Judge Behrens (inaudible) the trial today and now your Lordship is telling me you cannot try it."
The judge said:
"I am not saying I can't try the action Mr Nelson. I want to try … I mean my … if I may put it this way, my contract is to sit here and try actions, not to get out of trying them, and I want to get ahead and try this if at all possible.
MR NELSON: Well please may we proceed now?
JUDGE LANGAN: I am not, and I am going to give a ruling on this. I am not prepared to proceed with this action, unless the cause of action is going to be properly identified by you."
And then there was further discussion and at the foot of page 129 HHJ Langan said:
"No. On the basis of what you have said I am not prepared to deal with the action as though it were a breach of contract action or an action for common law negligence. I am not prepared simply to let the evidence roll out and then decide at the end of the day what category one might wish to put the case in."
And Mr Nelson observed :
"And indeed it is established law that you can amend pleadings even after the judgment to accord to the judgment. The court is here to try cases … (inaudible) … what is the difficulty? The facts are before you. I either have a complaint or I do not. If I don not have a complaint on the facts before you, strike out the action. If the case before you exhibits (inaudible) issue, try it."
And then there was further discussion with counsel for Halifax and the judge then proceeded to give judgment as he had indicated that he would.
- He concluded in his judgment that the claim under the Convention on Human Rights and Human Rights Act did not give rise to any freestanding cause of action. That is a conclusion which, before us, Mr Nelson accepted. HHJ Langan then described the course of the hearing before him and proceeded as follows. I quote from paragraph 16 of his judgment onwards:
"A few minutes after adjourning, I was called back into court at Mr Nelson's request. Mr Nelson then indicated that he did not wish to amend. After exhaustive, and I hope careful, inquiry, Mr Nelson indicated that he did not wish to proceed either with an allegation of breach of contract or with an allegation of negligence. Instead he asked the court to hear evidence and submissions and having done so to determine whether or not he was entitled to the relief mentioned in paragraph 7 above. I said I was unwilling to adopt this course and that if Mr Nelson maintained his position I would have no choice but to dismiss the action. Mr Nelson has elected to maintain his position.
17. Accordingly, I dismiss the action. I do so for the simple reason that there is now no cause of action, as Mr Nelson has abandoned his contract claim and has refused my invitation to formulate a negligence claim. The reference to breach of convention rights in Mr Nelson's particulars of loss (see his response to the Defendant's request for further information…) does not amount to the raising of a freestanding cause of action.
Finally, I reject Mr Nelson's submission that the orders of Mr Justice Pumfrey and His Honour Judge Behrens require me to deal with the case in vacuo in the manner desired by Mr Nelson. All the directions for trial which have been made by other judges have been given in relation to an action based in contract. The situation which confronted them is one which no longer obtains."
- The appellant's notice was issued by Mr Nelson on 20 August 2007 and by that notice the order he seeks from us is an order that the action be tried to determine the issue, defined by Deputy Master Behrens on 4 January 2007, confirmed by Pumfrey J on 3 May 2007 and ordered by HHJ Behrens on 13 July.
- The grounds of appeal are threefold. First, Mr Nelson is entitled to a decision of the court on the issues ordered to be tried; second, the judge's refusal to try them was a breach of the Human Rights Act because it is contrary to Article 6 of the Convention; and thirdly, in any event, infringement of Article 1 Protocol 1 does give him a freestanding cause of action. As I have indicated on 7 January 2007, Rimer LJ gave him permission to appeal.
- Before us Mr Nelson has contended that the judge was wrong to conclude that he (Mr Nelson) did not have a freestanding cause of action under the convention or the protocol pursuant to the Human Rights Act. He indicated that the judge was wrong to insist on any amendment and that he had never abandoned his claim as pleaded for him by counsel. He suggests that the allegations made in the Particulars of Claim were sufficiently precise and that it was for the court to try them and determine whether they founded any cause of action so as to entitle Mr Nelson to any of the relief he claimed.
- Counsel for the Halifax submitted that the judge was right on the human rights point. In his written argument he pointed out that that only creates causes of action against a public body and the Halifax is not such a body; and he submitted in his written argument that the decision of the judge was a case management decision which this court should respect because the judge needed to know what law to apply. Mr Nelson had indeed abandoned the claim in contract. Negligence had to be properly particularised and anyway negligence had been abandoned too. He submitted that a decision to strike out for want of a course of action could not infringe the Human Rights Act anyway.
- Before us the argument for Mr Nelson was confined effectively to his first ground of appeal, namely that a proper cause of action had been alleged to his Particulars of Claim. He was entitled to have it tried. The judge was wrong to consider that (inaudible) and that we should allow the appeal and send the matter back to trial.
- I have been through the material passages in the transcript of the hearing before the judge in some detail. In my view the following points emerge with sufficient clarity. First, Mr Nelson did not understand the basis of the pleading counsel had settled on his behalf. In particular, paragraph 10 plainly relied on the contract between the account holders and the Halifax. The contract was the foundation for the claim for damages. Second, Mr Nelson was confused as to what was being referred to be the judge as a, or the, contract. He distinguished between in one of the passages I have read an express and written contract on the one hand, on a contract implied in the circumstances of the deposited money by a customer with a bank on the other. Thus before us he contended that it was the Halifax, not him, who had pleaded and relied on a contract in its amended defence. Third, whatever else he may have done he did not abandon his claim as pleaded. He repeatedly insisted that that and that alone was what he relied on, albeit that he disclaimed reliance on the contract or negligence. These confusions were manifest in Mr Nelson's submissions before us. In summary he submitted that the bank never said that we (that is to say he and Miss Hamley) had broken our contract with the bank and I (Mr Nelson) did not plead contract; the bank did by amendment. He submitted that he relied on the issues that had been sent for trial by Pumfrey J and that those issues, in his view, were not dependent on any contract. He said it was wrong of the bank to freeze the account at all in reliance on the freezing order, and suggested that he could not abandon what he had not pleaded -- I did not wish to amend my claim but wished to be tried as it stood.
- In paragraph 17 of his judgment the judge stated that Mr Nelson had abandoned his contract claim. Counsel for Halifax sought to uphold that conclusion, but in my judgment a careful reading of the transcript indicated that that was not the case. Mr Nelson consistently maintained his claim as pleaded. He did not think that it was a claim of contract in the sense in which he understood that word. I have considerable sympathy with the judge. He sought to ascertain from Mr Nelson -- as he would from counsel appearing for Mr Nelson had there been one -- what he understood the cause of action to be. He (the judge himself) well understood that it was a contractual claim. I do not consider that the judge was entitled to reject the plain import of paragraph 10 of the Particulars of Claim on which Mr Nelson continued to rely on the basis of Mr Nelson's own confused and erroneous construction of it. The task of a judge dealing with a litigant in person is always fraught with problems. That is particularly so when the litigant in person demonstrates -- as Mr Nelson did to us and no doubt did to the judge -- a more than passing knowledge of the law and practice of the court. Nevertheless, I consider that the judge reached a wrong conclusion in paragraph 17 of his judgment. Mr Nelson had not abandoned his pleaded claim even to the extent that it might, on its proper construction, amount to a contractual claim. As he made plain on a number of occasions, that was the claim he asked the judge to try and expected him to do so. Accordingly, for my part I would allow this appeal and remit the matter to be tried by another judge in Leeds.
Lord Justice Rix:
- I am grateful to my Lord, the Chancellor for setting out the materials in this appeal, as a result of which I will need to refer to few of them myself. I regret, however, to find myself in disagreement with my Lord.
- What is the case that Mr Nelson was seeking to make before the judge and is seeking to preserve for himself on this appeal? My Lord has referred to his Particulars of Claim, which of course is the beginning of the matter. My Lord has also referred in extenso to the lengthy discussions before the judge. Let me however refer to some further material.
- In Mr Nelson's skeleton argument before the judge, he began by setting out his claim. This was the claim which the judge set out in paragraph 7 of his judgment and, in his concluding paragraphs (which my Lord has cited), referred back to in his reference in paragraph 16 to paragraph 7. Mr Nelson's claim was this:
"(1) A declaration that the interim freezing injunction obtained by Greening and Sykes (Builders) Limited ex parte without notice against Shirene V Hamley on 20 January 2006 did not require or authorise the Defendant to freeze the Claimant's bank accounts or otherwise to deny the Claimant access to the balances in his accounts.
(2) An order for an enquiry as to damages…"
- Pausing there, I would read that prayer as saying that the injunction was the matter primarily in issue and the question was whether the injunction required or authorised a freezing of the accounts in question. It was not so much a question of whether the contract prevented the freezing of the accounts, but whether the injunction required the freezing of the accounts; or, putting it another way, it would appear from that request for a declaration that Mr Nelson was not saying that the terms of his contract with the bank overrode the injunction (he cited no terms at any time) but that the injunction did not override the contract. One may wonder at this point why that might be so, but, as became clear in the discussion before the judge, what Mr Nelson was relying upon was his human rights and, in particular, Article 1 of the First Protocol of the European Convention of Human Rights brought into the law of England by the Human Rights Act 1998.
- Then at paragraph 3 of the same skeleton argument under the heading "Issue for Trial" Mr Nelson identified the issue as follows:
"The issue on the claim (apart from the quantum of damages) and as defined by Deputy Master Behrens on 4 January 2007 and confirmed by Pumfrey J on 3 May 2007, is:-
'whether the Freezing Order (in the circumstances in which it was granted and later discharged) required or entitled the Defendant to freeze the Claimant's accounts.'"
So the issue was there put by Mr Nelson in the same way in which I have understood his prayer for a declaration.
- Mr Nelson also had an opening speech for the judge, although there is some proper doubt as to whether the form of the opening speech which we have in our bundles on this appeal is exactly the same form as it was before the judge. That is because there were citations before the judge from paragraph 4 of that opening in which it is clear that the paragraph 4 of the opening before the judge was a denial of contract. Such a paragraph 4 is not in the version before us, but what is there, at paragraph 3, is a repetition that the claimant's claim in this action was for the declaration which I have already cited from paragraph 1 of his skeleton argument.
- So those were the documents before the judge that day and it is no surprise to me in those circumstances why, at the beginning of the trial, the judge, in my judgment quite properly, raised with Mr Nelson the question of exactly how he was putting his claim. Of course, there was additional material in the skeleton argument and the opening by reference to allegations of negligence, which were a further reason why the judge was anxious that he should understand -- and indeed, in fairness to the bank, the bank should be able to understand -- what was the nature of the claim that Mr Nelson was making.
- My Lord has read extensively from the proceedings before the judge. I will not repeat that, but would just briefly refer in particular to passages at pages 121, 126, 128 and 129 of our bundle, in which the question of the nature of the claim or allegation that Mr Nelson wished to pursue at trial was explored. For instance, at page 121 Mr Nelson explained clearly that the case that he wished to make was one that had been described (I think although that part of the proceeding was inaudible, it was Lord Donaldson who had so described it) as a statutory tort:
"The Defendants deliberately, negligently invaded the [Claimant]'s right to quiet enjoyment of his money. That is a cause of action. They do not deny it. They seek to justify it on the basis of an injunction which was totally void."
- There again is the allegation that the injunction did not justify the bank's freezing of the account. I would also refer in particular to page 126, where the judge is perfectly content to permit Mr Nelson to go back upon his denials of any allegation of a cause of action in contract and to (as he put it in his own words) "tear up" his opening, or that part of his opening, and the judge was perfectly content with that.
- And so Mr Nelson asked if he could reopen the case and he did, by, as it were, indicating to the judge that he was striking through those paragraphs in the copy of his opening before the judge which had denied relying upon a contract. So far so good. Then Mr Nelson came to that part of his opening when he started speaking about the bank's negligence, and that caused the judge to interrupt again and to point out that, in the light of the opportunity that Mr Nelson had been given, but had refused, to amend to plead a case of negligence, the judge could not accept him proceeding on the basis of negligence. Mr Nelson again backtracked and said, well, he was not relying upon negligence and had not pleaded it, which was true. He then returned to the way in which he wished to put his case at 128: "the tort of invading my right to quiet enjoyment of my possessions", a quiet enjoyment which he said was guaranteed by Article 1 of the First Protocol of the Convention. He disclaimed contract again and then in the final and (given the complacent attitude of the judge to Mr Nelson's permutations) critical part of the proceedings, the judge again asked Mr Nelson to clarify the matter by saying "the first matter is whether this is a claim in contract or not", to which, in the passage cited by my Lord, Mr Nelson said: "I have not pleaded, I have not proved any, and I am not relying on the contract". In referring to "the" contract he may have been referring to those terms which the bank had pleaded by amendment, but he was also making it clear once again that he was not relying on "any" contract. He simply said it is an action "based on the facts which are before your Lordship". HHJ Langan then tried again, pointing out with great patience that:
"I am not saying I can't try the action Mr Nelson. I want to try … I mean my … if I may put it this way, my contract is to sit here and try actions, not to get out of trying them, and I want to get ahead and try this if at all possible."
- But he also said that he was not able to do that unless the cause of action could be properly identified. And then the judge summed up the position before him as he understood it by saying: "You have told me that you rely on no contract." I believe the judge was accurate in saying that. "You do not allege common law negligence." I believe the judge was accurate in saying that, and therefore the judge said:
"…I am not prepared to deal with the action as though it were a breach of contract action or an action for common law negligence. I am not prepared simply to let the evidence roll out and then decide at the end of the day what category one might wish to put the case in."
- But Mr Nelson's only response to that was not to say that he did rely on contract or on negligence in addition to the statutory tort or interference with his quiet enjoyment of which he had made clear he complained, but he simply said: "the facts are before you".
- Mr Bor, who was then counsel for the bank (on this appeal it is Mr Kramer), then summed up his own understanding of the long discussion which had taken place in the court by saying:
"I find it is very difficult when the Claimant has said he is not relying on contract; when the claim is drafted in contract … And now he is saying he is not relying on negligence but relying on the Human Rights Act …"
And then the judge gave his judgment.
- Now, turning to what Mr Nelson says on this appeal, his first ground of appeal -- which my Lord has rightly said Mr Nelson confined his submissions to --says, in essence, without identifying contract at all:
"The issues joined on the Particulars of Claim and Amended Defence having been identified and ordered by each of a deputy master and two judges to be tried, the Claimant is entitled to the decision of the court on those issues."
- In his skeleton argument for this court however, at paragraph 21, Mr Nelson makes it again clear that he does not put his case in contract. He says:
"DJN [that's Mr Nelson] neither pleaded nor proved a contract and did not put his claim within a contract yet the judge concluded that the case was one of contract. DJN did not expressly plead negligence. In requiring him to do so including particulars of the duty of care the judge said this …"
And that is Mr Nelson's attitude on this appeal.
- That it is his attitude on this appeal was further confirmed in Mr Nelson's reply. By that time the issues in the appeal and the fact that the court, this court, in addition to the judge below, regarded Mr Nelson's Particulars of Claim as supporting a claim in contract, were absolutely plain to Mr Nelson, and he had listened to the argument here. But what did he tell the court in his reply? He said he had the option; he could either sue in contract or in negligence or by way of what he described as his "statutory tort", by reference to Article 1 of the First Protocol. His choice was to go by way of statutory tort. He repeated again and again to this court: "I did not plead contract so how could I abandon it? I have not pleaded contract and I am not relying on it." The question is whether the freezing order justified the freezing of the accounts. Wherein, in thus submitting, Mr Nelson confirmed my understanding of the way he had in fact always put his case as originally defined in Deputy Master Behrens' order of 1 January 2007.
- Again, Mr Nelson said in his reply, the issue was whether the freezing order justified the bank in freezing the accounts. The bank did, he submitted, "what Article 1 of the First Protocol said it could not do, namely interfere with his quiet enjoyment of property. It was the mere fact of the freezing that justified the cause of action that he was relying on in this case.
- Now, against that background which in this court has, to my mind, made quite clear what Mr Nelson was seeking to make clear to the judge, the judge was indeed in a difficult position and deserving of all the sympathy which my Lord the Chancellor has expressed for him. It is perfectly true that Mr Nelson was repeatedly saying that he relied upon his Particulars of Claim and did not abandon them, but he was also saying very much more than that. He was making it clear that he relied upon the facts which he pleaded in his Particulars of Claim as supporting a claim not in contract but under Article 1 of the First Protocol. So if one asks the question about the three ways in which Mr Nelson says that he could put his case: One, does he have, and did he have, a case to make in negligence. The answer, it seems to me -- and Mr Nelson, to be fair to him, has not sought to argue otherwise in this court -- no. He had not put his case in negligence, and although he had sought in his documents before the court to say that the bank had acted negligently, nevertheless when asked by the judge -- quite rightly in my view -- to put his case in negligence in writing, and the judge was perfectly willing even at that late stage to allow that to happen, Mr Nelson made it clear that he did not wish to do so. So if the question is asked: Did he put his case in negligence? The answer is "no", whatever the facts of his claim might otherwise permit him to do.
- Secondly, did he put his case as a statutory tort? The answer is plainly "yes". He did not, I think I am right in saying, refer to Article 1 of the First Protocol in his Particulars of Claim, but it was quite plain that he was seeking to rely upon that as the primary way in which he put his claim. The judge was not willing to accept a claim in those terms and in this court, as my Lord has said, Mr Nelson does not challenge that decision; so we are not concerned here with Mr Nelson's statutory tort.
- So the third and final question is: Did he put his claim in contract? To my mind the answer is "no". Mr Nelson, it is perfectly true, in his long discussions with the judge prevaricated on that point. He said he did not put his case in contract, then he told the judge to tear up his opening and appeared to resurrect his case in contract, and the judge was perfectly willing to accept that; but at the end of the day he made it clear that he did not rely on any contract, and he has made that clear in this court again, as I have sought to demonstrate.
- So, of the three ways in which he could put his case, none of them are available to him in this court, and it seems to me that contract and tort were not available to him in the court below. It is perfectly true that the Particulars of Claim could support a claim in contract, but in the light of Mr Nelson's ultimately adamant insistence that he did not put his case in contract, I consider that the judge was entirely entitled to take those submissions and assurances of Mr Nelson, particularly after the detailed way in which the matter had been explored, and in the light of the fact that the judge had made it clear to Mr Nelson that he accepted that a case in contract could go forward but that he had otherwise grave difficulties about Mr Nelson's claim; but, in the light of and despite all that, Mr Nelson's final position was that he did not put his case in contract. The judge had to put those two statements of Mr Nelson in my judgment together: his statement that he relied upon the facts pleaded in his claim, but also that he did not put his case in contract. The judge had to put them together. And the only way in my judgment that he could put them together was to accept the second statement as qualifying the first. Even if one does not put the matter as high as that -- and in my judgment one can -- the judge was in a difficult position, and he was entitled to take a view as to what the position was in court. In taking that view he had of course to have in mind the overriding objective, of which he was reminded in the course of submissions by Mr Nelson; he had to have in mind the fact that Mr Nelson was a litigant in person and therefore deserving of assistance; he had to have in mind, of course, that fairness was also due and owing to the bank. The judge also, in my judgment, had to have in mind that the courts were entitled, when embarking upon a trial, to know what the trial was about, and that it was entitled to an end to any prevarication from litigants, even from litigants in person.
- Now in my judgment, if it is said that the judge erred in what was essentially a decision as to how he was to regard the case before him in the light of all that he was told, if it is to be said that the judge erred, it seems to me that we are in the area of case management or discretion or the understanding of pleadings, and that this is a matter essentially for the judge, and that this court should not upset the judge's assessment unless we are of the view, in one of the phrases which this court has used, that he was plainly wrong or that he has gone outside the legitimate ambit of his discretion or room for evaluation. In my judgment the judge was right, but in any event he was well within that room for judgment or assessment which this court permits him.
- Finally, I would put it in this way. Litigants in person, with which these courts are entirely familiar, are of course deserving of the court's sympathy for the difficult role that they must fulfil as non-experts in the law, and of course they also need and deserve help and support as traditionally has always been given them not only by the court but also by opposing counsel, as is understood to be their duty. Nevertheless, this was not a complex matter. Mr Nelson is clearly an intelligent man and -- indeed, as we know from past litigation with which he has been concerned and which is mentioned in the bank's skeleton argument -- a very experienced litigator in person over a great number of years. For this court simply to insist that Mr Nelson's claim must be tried as a claim in contract when Mr Nelson is telling the court repeatedly that he does not have a claim in contract, is, it seems to me, for this court to override the autonomy of the litigant. I say that, as I have made clear, even of the litigant in person. One does not know, and, subject to limits, one is not entitled to enquire, why a litigant takes one course rather than another. It is often the case that the courts look with puzzlement at decisions of litigants, even those advised by senior counsel. Ultimately, however, once the court has made proper enquiries on behalf of a litigant in person the court must, it seems to me, respect the autonomy of the litigant. That, ultimately, is a matter of respect due to him; but of course, since the litigant in person risks his costs, it is also out of fairness to him; and of course it is out of fairness to the opposing party too, where the court considers that, in the light of the written documents before it and the oral submissions before it, there is real perplexity about the basis of the claim sought to be made.
- In my judgment if, against this background, this court were to say that the judge, who proceeded in my judgment so carefully in this case, was wrong, plainly wrong, outside the area of his discretion or legitimate room for evaluation -- and if, therefore, this court were to force upon the parties a trial of an issue which Mr Nelson is saying he does not wish to litigate – then it seems to me that this court would not only be acting, it seems to me, wrongly, but would be making a rod for the back of the courts who, day in and day out, have to do their duty for litigants in person.
- Therefore I would, for myself, dismiss this appeal. I would merely end as a postscript by referring to a judgment, the most recent judgment in these courts arising out of the ten years of litigation to which the bank's skeleton argument has referred. This is the litigation involving Greening & Sykes Builders Limited which I think gave rise to the freezing order which they obtained in this case and which has given rise to these particular proceedings. Now, that litigation ended after ten years in a judgment of this court: Nelson v Greening & Sykes (Builders) Ltd  EWCA Civ 1358 unreported, 18 December 2007. It is referred to, as I said, in the bank's skeleton argument. In that judgment, Lawrence Collins LJ referred to Miss Hamley (with whom Mr Nelson had the joint accounts in question in this case) as his friend or associate. Wall LJ at paragraph 74 said that there was abundant material upon which the judge in that case could properly find, as he did, that Mr Nelson and Miss Hamley "have for litigation purposes always been acting in tandem".
- As more than one of the Lord Justices in that judgment observed, Miss Hamley had threatened Greening & Sykes's solicitors more than seven years before that judgment that:
"the matter between your client and me will become a long running saga along a costly course from Dewsbury to Strasbourg."
Wall LJ also remarked at paragraph 78:
"Rarely, in my experience, as the judge himself remarked, has litigation been so 'long drawn out and regrettably pointless'. I also respectfully agree with the judge that it is properly described as 'little more than an exercise in futility'."
- No doubt the judge in this case, who was the trial judge in those proceedings too, would have had the Court of Appeal's observations in that judgment in mind. In my judgment he was rightly concerned that the proceedings before him should not also become an exercise in futility. The costs in that case, where I have referred to this court's earlier judgment, amounted, one there reads, to some £100,000. It would be very regrettable if costs in these proceedings were also to mount like Topsy.
- In agreement with my Lord, the Chancellor, I too would allow the appeal. My reasons are essentially the same as his, although I add some observations of my own.
- The judge's decision, arrived at in difficult and unusual circumstances, can be defended as being an apparently logical one but I am nevertheless of the view that it was the wrong one. At the beginning of his oral opening to the judge, Mr Nelson said that "the claimant has pleaded no contract, has proved none, and relies on none". That statement was inaccurate since it is difficult to read the Particulars of Claim as doing other than to assert that Halifax's actions in freezing the joint accounts following the making of the freezing order amounted to a breach of the contractual terms upon which the accounts were held. Paragraph 5 asserts that those terms entitled Mr Nelson to make withdrawals on demand at any branch. Paragraph 10 asserts that the freezing order "did not require or permit the Defendant to act outside the terms on which the Current and Savings Account were held." I would therefore interpret Mr Nelson's pleaded claim as based in contract. Its essence was that he had a contractual entitlement to make unqualified drawings on his accounts to the extent that they were in credit, and that Halifax had infringed that entitlement by adopting the view that the freezing order required it to put a stop on its exercise.
- The judge had also so read the Particulars of Claim and was therefore taken aback by Mr Nelson's denial of its legal basis. There followed the extended discussion that the Chancellor has related in which the judge gave Mr Nelson the opportunity to amend his pleading so as to assert an alternative claim in the tort of negligence. Mr Nelson declined, however, to take that opportunity up. Whilst maintaining that he was not relying on contract, his position throughout the exchanges with the judge remained that he stood by his pleading, which he said asserted all the relevant facts, and that he did not need to plead the relevant law. His stance was that it was for the judge, once the facts were found, to decide what, if any, claim in law they established. That was the same position that he adopted in his submissions to us. I add, as the Chancellor has said, that the exchanges with the judge revealed Mr Nelson's real concern about having his case founded in contract. That was because he viewed it as enabling Halifax to argue that it could rely on certain banking conditions governing the contract that it had pleaded by way of amendments to its defence, whereas his position was that he had only relatively recently seen those conditions and so they could not be terms of that contract.
- At length, however, because Mr Nelson was disclaiming a claim in contract and was not prepared to plead an alternative cause of action, the judge struck his claim out. I earlier described that decision as an apparently logical one. That is because both the judge and the defendant are ordinarily entitled to know at the opening of a case the basis on which it is being brought; and in the unusual circumstance in which, at such opening, the claimant denies the legal basis on which it is pleaded and does not offer an alternative one, it is not difficult for a judge to conclude that the only fair course to adopt is to strike the claim out.
- The circumstances of this case, however, were rather special. First, Mr Nelson was a litigant in person; and whilst he apparently knows quite a lot of law there is obviously quite a lot that he does not know. The latter includes that his pleaded case was founded on an assertion that Halifax had failed to respect the terms on which the two accounts were held, which was a claim in contract. Secondly, whatever Mr Nelson may have said about denying that his case was based in contract, one thing that he did not abandon was his pleaded case. He made it clear throughout his exchanges with the judge that he stood by that case, that he did not wish to change it in any single respect and that he wanted the judge to try the issues that it and the amended defence raised. There was of course an inconsistency in that. Mr Nelson was denying that he was relying on contract, but was standing by, and asserting, a pleaded case that did just that.
- That inconsistency presented the judge with a difficulty. But one thing that must have been apparent to him was that Mr Nelson was not abandoning his pleaded case and that he wanted to advance it. Moreover, it would also have been apparent that the real issue that Mr Nelson wanted tried was whether Halifax had been justified in regarding the freezing order as entitling it to freeze the accounts. The Particulars of Claim made a number of points about that and their essence was that the freezing order did not justify Halifax's action. Beyond asserting the undisputed fact that the accounts permitted withdrawal on demand from any branch, no reliance was placed by Mr Nelson on any particular terms of his contract with Halifax. The focus of his claim was not on the terms of his contract but on the terms of the freezing order.
- In the circumstances I consider that the judge ought to have recognised that Mr Nelson had a less than comprehensive understanding of the precise nature of his own pleaded case and that, in particular, he did not understand that the disclaimer of reliance on contract logically amounted in effect to a disclaimer of part of that case. He ought also to have recognised that Mr Nelson had made it plain that he was not disclaiming his pleaded case. He wanted it tried. In my view, given that inconsistency in Mr Nelson's position, the judge should not have taken the course of depriving Mr Nelson of his day in court by summary dismissal of his claim because of his own confused understanding of it. He should have allowed the trial to proceed on the pleadings as they stood.
- That could not have lead to any injustice or difficulty on the part of Halifax. As regards evidence, Mr Nelson had made two witness statements. He was not entitled to add to them, nor do I understand that he wanted to. They would have stood as his evidence in chief and he could have been cross-examined to such extent as Halifax thought necessary. There would have been no need for Halifax to do more than to test the pleaded case. Similarly, when the Halifax evidence was called, Mr Nelson could have been stopped by the judge from engaging in any cross-examination that might be regarded as endeavouring to make good an unpleaded case. Once the evidence was complete, the judge would have heard the parties' submissions and could have given his judgment.
- In my judgment that was the right way to deal with the unusual difficulties with which the judge was faced. The course he instead adopted was a draconian one that deprived a litigant of his right to a trial. For these reasons, I too would allow the appeal.
Order: Appeal allowed
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