England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Levy)

		The Royal Courts of Justice The Strand London WC2A Tuesday 31 July 2001

1. LADY JUSTICE HALE: This is a claimant's application for permission to appeal against orders made by His Honour Judge Levy QC in the Central London County Court on Monday 14 February 2001. That was the date fixed for a two-day liability hearing in her claim for damages for personal injuries suffered when she alighted from a Thames train at Paddington station on 5 June 1996. There is no need for me to go into the details of that claim for present purposes.
2. At the start of the hearing on the Monday morning, counsel applied for the solicitor and himself to come off the record. No notice had been given of that application but the judge granted it. The claimant then applied for an adjournment, and counsel who had previously been acting for her supported that application. Not surprisingly, it was opposed by the defendants and the judge refused it. The judge then proceeded to hear the claimant's case after a brief adjournment, the claimant acting in person. At the end of the claimant's case he allowed the defendants to make a submission of no case to answer without putting the defendants to their election, relying on the High Court case of Mullen v Birmingham City Council The Times 29 July 1999. He upheld that submission and accordingly found for the defendants.
3. The principal ground of appeal which is urged today by Mr Ley on behalf of the claimant is that the judge was wrong not to grant an adjournment. The position was indeed unusual. There was a legal aid certificate which had been limited both in the extent of what could be done and, presumably, in the money that could be spent. A date had been fixed for the trial without any application being made to the Legal Aid Board to lift that limit. There was a conference with counsel on the previous Thursday, 10 February, and counsel advised in writing on 11 February. It appears that an application for the amendment of the certificate was made to the Legal Aid Board at 4.30 pm on Friday 11 February: that application made it fairly plain what view was taken of the merits of the claimant's case. The response to it was not received until the following Tuesday. Meanwhile there was correspondence between the claimant and her solicitors. The claimant had suggested applying for an adjournment because she wanted the solicitors to find more evidence that she thought would support her case. That correspondence again repeated an indication of the view taken of the strength of her case, but it did not in so many words warn her that the action that they were taking in relation to the Legal Aid Board was likely to result in their not being in a position to represent her on the following Monday. The claimant's case is that it was only on the Monday morning, when she arrived at court, that the position was explained to her and she was faced for the very first time with the possibility that she would have to act in person in presenting her case.
4. Not surprisingly, the judge was anxious that as little as possible be said to him about these events because he wished to preserve his neutrality for the purpose of continuing the trial should he decide so to do. That means that the full facts relating to the legal aid position were not put in front of him and that is understandable. But it does mean that when he was exercising his discretion he took into account the shock to the claimant but then went on to weigh that against the costs of an adjournment, his estimation of the likely value of the claim, and the fact that the trial had been listed and the defendants' witnesses were there. He concluded that she had the advantage of professional help in preparing the case up to that time and so on balance,

". . . bearing in mind the overriding principle of the new reforms, the interests of justice are for the trial continuing today after an adjournment which will enable the claimant the better to prepare herself for the hearing."

5. The difficulty with this application is that the position as between the claimant and her previous solicitors has to be distinguished from the position facing the judge that morning. Nevertheless, the position in which the claimant found herself was, on the material before me, significantly different from the position facing the defendants in the case of Lloyds Bank v Dix, decided by this court on 26 October 2000. Those defendants had notice for some considerable time that they could not rely on having the benefit of legal representation at the trial. This claimant appears not to have been in that position. For that reason, it seems to me the sensible solution is to adjourn the application for a with notice hearing with the appeal to follow if permission is then granted. Any application formally to put new evidence before the court should be made on that occasion.
6. The claimant will understand that if she is unsuccessful because the exercise of the judge's discretion was not so plainly wrong, she risks having to pay the costs of the case.
7. For those reasons, the matter will be adjourned for an with notice hearing.
ORDER: Application adjourned for a hearing on notice. The costs of this and of the last hearing are reserved. (Order not part of approved judgment)