England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London WC2 Monday, 21st May 2001

1. LORD JUSTICE MUMMERY: There are listed for hearing today a number of applications by Mr. Oakes. He is seeking permission to appeal against an order made against him on 15th February 2000 on the application of Her Majesty's Attorney General under section 42 of the Supreme Court Act 1981. There are also listed applications by Mr. Oakes' wife, Mrs Brenda Oakes, in which she was seeking permission to appeal and an extension of time for appealing against an order of Rattee J on 25th July 1997 and an order of Pumfrey J on 1st February 2000. There are also mentioned in the papers submitted by Mrs Oakes possible applications for permission in relation to an order made by Carnwath J on 28th April 1997 and an order made by Mr. Registrar Bainster on 20th October 2000.
2. At the start of the hearing an application was made by Mr. Ashton of counsel, on behalf of both Mr. Oakes and Mrs Oakes, for all these matters to be adjourned and not to be relisted for rehearing before 1st July 2001. Until Mr. Ashton appeared this morning it appeared that Mr. and Mrs Oakes were making the applications in person, and that, in the case of Mrs Oakes, there would be representation of Mr. Simms, who is the trustee in bankruptcy of Mr. Oakes. Mr Simms has been involved in disputes which have arisen in the bankruptcy, particularly in relation to a claim by Mrs Oakes to have a beneficial interest in property in Doncaster, a property called 1, St Wilfred's Drive, in Doncaster. Mr. Barnard of counsel has submitted a skeleton argument on behalf of the trustee opposing Mrs Oakes' applications.
3. The basis of the application for an adjournment by Mr. Ashton is that it was only on Friday of last week that the legal aid position was clarified in relation to advice by him to Mr. and Mrs Oakes in respect of these applications. Mr. Ashton had been instructed by solicitors at an earlier stage, and he had written an advice called Advice No 1, dated 14th May, referring to the hearing today, which is inaccurately described as a directions hearing before the Master, referring to the fact that the hearing was originally scheduled for 29th March, but had been adjourned because his instructing solicitors had not taken over the matter until 19th March. In paragraph 2 of his advice Mr. Ashton wrote this:

"Mr. Oakes has a legal aid certificate issued on 15.05.98 'as plaintiff to be represented in an appeal to the Court of Appeal in an action between Mr. Oakes and the opponents.' Neither the action nor the appeal nor the opponents are identified on the legal aid certificate. The certificate is limited to obtaining counsel's opinion on the information already available, ie as at 15.05.98. However, much water has flowed under the bridge since then."

4. In paragraph 3 he refers to the position with regard to Mrs Oakes' legal aid certificate, which was issued on 24th June 1998:

"'As defendant to be represented on an appeal to the Court of Appeal in an action between Mrs Oakes and the opponents.' Once again, neither the action nor the appeal nor the opponents are identified on the legal aid certificate. The certificate has two limitations: (1) it is limited to obtaining counsel's opinion on the information already available, i.e. as at 24.06.98 and (2) it is limited to all steps up to and including the hearing on 21.10.00 to apply for an adjournment (a date of course which has already gone by)."

5. Mr. Ashton continued in paragraph 4 that it was imperative that the two certificates be forthwith amended to cover the hearing on 21st May of this year and to cover advising on matters generally. He continued:

"The circumstances of this case plainly demonstrate the desirability of counsel's attendance on the said date because, first, procedurally the matter seems to have got somewhat out of hand and, secondly, it is in the public interest that this whole matter is resolved once and for all."

6. Mr. Ashton went on to refer in his advice to the fact that he had had a long conference with Mr. Oakes on 17th April, that he had received 11 lever arch files and that relevant documents were still coming in. He regretted that he had not been in a position to advise sensibly on the merits by today and would have to tell the court this fact and ask for the indulgence of a further adjournment to enable him to assist the court as to precisely what directions are justified or desirable.
7. Mr. Ashton informed us on instructions that on Friday afternoon a telephone call was received by the solicitors instructing him that the legal aid authorities had amended the certificates of both Mr. and Mrs Oakes to sanction his appearance today to make the application for an adjournment, and to authorise him to advise generally in relation to the listed applications. He said that he was not in a position to supply the court with skeleton arguments on any of the applications. He said that, if the matter were taken out of the list and it was not relisted before 1st July, that would give him sufficient time in which to advise his clients as to the prospects of success on these applications, and that, depending on that advice, the legal aid authorities would take a decision on representation at an adjourned hearing.
8. The application was opposed by Mr Barnard on behalf of the trustee in bankruptcy, Mr. Simms. He pointed out that this was a stale matter. It had been going on for years. The two applications, which it is known for certain Mrs Oakes wishes to make, are against orders made a long time ago. He said that the firm of solicitors instructing Mr. Ashton are the third firm of solicitors to be instructed by Mr. and Mrs Oakes. He added that this was the third application for an adjournment which had been made by Mrs Oakes. An adjournment had been granted on paper on 24th November and another on 29th March. He said that the matter was dragging on. He also sought to make submissions to us, which are summarised in his skeleton argument, as to why the applications which Mrs Oakes wishes to make are without merit and will not, in his submission, succeed. He also produced documents faxed by the solicitors for Mr. and Mrs Oakes to his instructing solicitors on Friday afternoon, which notified his solicitors in confusing terms about the issue of a legal aid certificate. The notices did not record the existing limitations in the certificates, nor did they refer to the amendments which Mr. Ashton has told us were not made until the telephone conversation later in the afternoon. Mr. Barnard submitted that there was inconvenience caused by a further adjournment because there was a caution registered by Mrs Oakes on the Doncaster property. That was holding up the work of the trustee in bankruptcy. That caution would remain in place if the matter was adjourned. He did, however, accept that the trustee was not in an immediate position to dispose of the property. There was no present purchaser. He also informed us that there is another claim in relation to the Doncaster property now being made by Mr Oakes' mother. In respect of that claim a directions hearing is due to be heard by another court sometime today.
9. Having considered the present position, I have come to the conclusion, with some reluctance, that this matter should be adjourned yet again. In my view, there is likely to be a benefit to all concerned if Mr. Ashton is given an opportunity, over an adjournment of six weeks or so, to come to grips with the papers in this case (which we know are voluminous because the history of the litigation goes back so far) and can advise Mr and Mrs Oakes about the prospects of them succeeding on these applications. Mrs Oakes was not represented by counsel in respect of the hearings at which the orders that she wishes to appeal were made. Mr. Oakes was not represented by counsel at the hearing of the application by the Attorney General under section 42. In my view, it is better for Mr. and Mrs Oakes now to have the opportunity of obtaining counsel's opinion on this whole matter before the court considers it. Mr Ashton's involvement is likely to be beneficial for the court, since we would expect him, if the matter is pursued at the adjourned hearing, to submit a skeleton argument setting out his submissions on the applications and his arguments as to why they have a real prospect of success. This may be beneficial to the trustee in the end, in that the matter will be argued out by counsel, who has used his experience to form an opinion on the matter, rather than argued by Mr. and Mrs Oakes who suffer from the disadvantage which they themselves have pointed out of being unrepresented in the litigation.
10. I, for my part, would accede to Mr. Ashton's application. I would direct that, as soon as the documentation is available from the legal aid authorities relating to the amendment of the certificate, the appropriate notices are sent to the solicitors acting for the trustee and to the Civil Appeals Office, and I would also say that efforts should be made, if possible, to list this matter to be heard by Sir Martin Nourse and myself during the period in July when for three weeks we shall be sitting together hearing applications and appeals.
11. SIR MARTIN NOURSE: I agree.
Order: Application adjourned to be heard during the period in July when Lord Justice Mummery and Sir Martin Nourse are sitting together; costs reserved to the adjourned application; public funded costs assessment.
12. (Order not part of the judgment of the court)