England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(The Hon Mr Justice Popplewell))

		Royal Courts of Justice Strand London WC2A 2LL Friday 24 August 2001

1. LORD JUSTICE ALDOUS: This is an appeal against the refusal of leave to grant permission to apply for judicial review by Sir Oliver Popplewell on 25 May 2001. To understand the issues it is necessary to go back and set out some of the history to the litigation in which Mrs Adshead has been involved.

2. In 1968 Mrs Adshead's late husband purchased the property known as Bennetston Hall, Nr Buxton, Derbyshire. It was a Victorian mansion situated in the Peak District National Park in 12 acres of grounds. The Hall was run as a hotel with 15 bedrooms. In April 1984 it was damaged by fire, but it was not until June 1986 that Mr and Mrs Adshead entered into a contract to have the damage put right. That contract was between the Adsheads and Mr Kevin and Mr Martin Cummins. The contract was in writing but even so a dispute arose as to payment.
3. The Cummins sued Mr and Mrs Adshead; the proceedings being started by writ 7 January 1988. That writ claimed specific performance of the contract, which involved transfer of a property known as 18 Whitefield, Eaton Mor, Stockport. The claim also sought payment of just over £30,000. At about the time the writ was served Mr and Mrs Adshead were notified that the Cummins were in receipt of legal aid:

"To take proceedings against Gerald Frank Adshead for a declaration as to the trusts affecting property known as 18 Whitefield Eaton Mor Stockport."

and

"To take proceedings against Gerald Frank Adshead for damages for breach of contract and/or specific performance."

4. The action came for trial in September 1989 before His Honour Judge Franks. Having heard evidence, he ordered specific performance and in default an inquiry as to damages. He also gave judgment for the Cummins for £7,672 plus interest, less the set-off of £2,336, leaving a net sum payable by the Adsheads. He also declared that the Cummins were entitled to damages and he ordered an inquiry. Importantly, for the purposes of this application, the judge made an order that the costs of the action should be paid by Mr and Mrs Adshead and he ordered a legal aid taxation.
5. The inquiry also came before His Honour Judge Franks in February 1990. On that occasion Mr and Mrs Adshead did not attend, but it resulted in a further judgment in favour of the Cummins for about £3,500. Mr and Mrs Adshead appealed to the Court of Appeal against the orders that had been made. There was a two-day hearing before Parker, Nourse and Bingham LLLJ. The Court of Appeal dismissed their appeal with costs and ordered a legal aid taxation. Mr and Mrs Adshead were refused leave to appeal, but petitioned the House of Lords. That petition was refused in July 1991.
6. At this point I draw attention to the fact that the court of first instance and the Court of Appeal made orders for a legal aid taxation. Such orders are only made when the party in whose favour the order for costs is made is in receipt of legal aid.
7. Mr and Mrs Adshead applied to the European Court of Human Rights. Their application was refused in November 1991.
8. In due course the costs were taxed at about £74,000 for the trial and at about £37,000 for the appeal. Thus, Mr and Mrs Adshead faced a bill of costs of over £100,000 pursuant to the orders that had been made. In the chronology prepared by Mrs Adshead it appears that there was an application, or an attempted application, to have the costs taxation reviewed but it came to nothing.
9. On 18 February 1994 a charging order absolute was made by His Honour Judge Howarth on Bennetston Hall for the total amount of assessed costs in favour of the Legal Aid Board. Their right to take proceedings stemmed from regulation 91(1)(b) of the Civil Legal Aid (General) Regulations 1989. In effect, that empowered them to step into the shoes of the Cummins in respect of the orders for costs made in their favour.
10. The Legal Aid Board continued to seek to enforce the costs orders that had been made and on 10 April 1996 the Legal Aid Board issued an originating summons claiming an account of what was due, payment of what was found due by the account and an order for possession and sale of Bennetston Hall. That originating summons came before District Judge Jones on 5 June 1996. He ordered that, unless Mr and Mrs Adshead redeemed the charge within the six weeks, they were to give up possession of the property to the Legal Aid Board so that the property would be sold at a price of at least £300,000. The amount necessary to redeem the charge at that date was round £168,000.
11. In July 1996 Mr and Mrs Adshead applied for a stay of the order for possession. A temporary stay was granted until their application could be heard. It was heard on 21 October. His Honour Judge Howarth dismissed the application for a stay and ordered them to pay costs. He went on to make a Grepe v Loam order. The stay having been refused, there appeared to be no obstacle to the Legal Aid Board obtaining possession of Bennetston Hall and a writ of possession was issued on 4 November 1996.
12. On 2 December 1996 His Honour Judge Maddocks dismissed an application by Mr and Mrs Adshead for a stay of execution of the writ of possession. It was subsequently executed on 10 January 1997. No doubt that was a traumatic occasion for the Adsheads as they were evicted with their younger son, then aged 11, with police attendance. However, their dispossession was short lived as some time in February they retook possession. That caused the Legal Aid Board to apply for a writ of restitution which was issued on 14 February 1997. It was unsuccessfully challenged by Mr and Mrs Adshead and it was executed on 24 February. Again, there was police presence. There was no disturbance and the locks were sawn off and replaced. The Adsheads still maintained that the whole eviction was unlawful.
13. Again the Legal Aid Board's success in gaining possession of the property was short lived. On 15 or 17 March Mr and Mrs Adshead retook possession of the property. On 21 May 1997 District Judge Needham gave leave for the issue of a second writ of restitution. That writ was served with a penal notice attached to it. It was executed. Shortly thereafter Mr and Mrs Adshead yet again retook possession. That resulted in a motion to commit Mr and Mrs Adshead to prison for contempt of court.
14. The committal proceedings came before His Honour Judge Maddocks on 27 March 1998. He made an order committing them to prison for three months for contempt of court but ordered suspension of the committal order on two conditions: (i) that Mr and Mrs Adshead quit Bennetston Hall and its 12 acres of land on or before 30 March; and (ii) they refrain from entering the Hall for a period of three months thereafter. They complied with those conditions and the committal order became spent. However, the Adsheads appealed against the committal order. Before the appeal could be heard Mr Adshead died, which is why Mrs Adshead is the sole applicant before me.
15. Mrs Adshead's appeal against the committal order originally came before the Court of Appeal in March 1999. It was adjourned and subsequently came back to be heard in November 1999 when it was dismissed. The leading judgment was given by Sir Richard Scott, VC, on 26 November 1999. In that judgment he set out the basic history and concluded that there were no reasonable grounds to support the appeal. He said at paragraph 71 of his judgment:

"For all those reasons, in my judgment, this is an appeal which has no reasonable grounds to support it. There might have been some argument whether three months was too long a sentence for the judge to have given in the circumstances. But he gave a suspended sentence; it never bit. I would not be disposed in those circumstances to quarrel with it. I would dismiss this appeal."

16. Thorpe and Judge LLJ agreed.
17. Mrs Adshead was not satisfied with that conclusion. She then sought legal aid to assist her in prosecuting a petition to the House of Lords for leave to appeal, leave to appeal having been refused by this court. Her application was turned down because the Board concluded that she had no reasonable prospect of success. She appealed against that conclusion. There was a hearing in December and the decision was upheld by the Appeal Board.
18. At this stage I should comment upon appeals to the House of Lords. The House of Lords does not consider issues of fact. It deals with issues of law, in particular important issues of law and principle. A person is entitled to have a case considered for an appeal, but certainly not entitled to a second appeal to the House of Lords.
19. I return to the history. In March 2001 Mrs Adshead sought judicial review of the decision of the Legal Services Commission, as it is now called, refusing her legal assistance. She alleged that the conclusion reached by the Legal Services Commission was unreasonable in the Wednesbury sense and irrational. She also alleged that her right to a fair and impartial hearing before the Board had been totally breached. She also complained about a lack of disclosure and delay. As I have said, that application was refused by Sir Oliver Popplewell. She now seeks to persuade me that he was wrong.
20. I will deal first with the grounds of appeal in the appellant's notice. The first point taken is dependent upon the Human Rights Act. She points to the fact that the decision to refuse her legal assistance was taken by a Board of the Legal Services Commission. She submits that that breached her right to an impartial hearing by an impartial tribunal. That submission disregards the fact that the Board which decided that she was not entitled to legal assistance was comprised of solicitors in private practice who are not members of the Legal Services Commission.
21. More importantly, in my view, this ground must be rejected as no tribunal could have concluded that legal assistance should be provided to Mrs Adshead. Her case was hopeless. It involved relitigating matters that had been decided in the course of litigation that had taken place over the years. First she complained that the Legal Aid Board were not entitled to bring the possession proceedings as legal aid had not been properly granted to the Cummins. That was a matter that should have been litigated in 1994 when the Legal Aid Board obtained an order for possession. Furthermore, the point was considered by the Vice Chancellor who concluded that there was nothing in the matters raised by Mrs Adshead based on the alleged absence of proper legal aid certificates. There is no possibility that the House of Lords would entertain an appeal which could not succeed on its merits and where there was no point of principle or of law which might suggest that a third appeal was appropriate.
22. Mrs Adshead drew to my attention the form that she put before the Board. That included an estimate of costs of £750 and stated that it was impossible to assess the value of her claim. The submission was that the amount of legal aid sought was only £750 which the Legal Services Commission should have awarded. If so, the opinion of counsel might have been obtained in her favour. In my view there was no chance of an opinion of counsel being in her favour. The question was whether a petition to the House of Lords had any possibility of succeeding; it did not.
23. Next it is said that Mrs Adshead had not been supplied with appropriate documentation and that had amounted to a suppression of truth. In essence she complains that she was not given the legal aid certificates on which the Legal Aid Board claimed their right to possession to enforce the orders for costs made in favour of the Cummins. Certainly she was given a number of them, and it is not surprising that they do not all exist at this time. In any case that matter was dealt with by the Vice Chancellor. He concluded that there were no grounds for suggesting that the Cummins were not in receipt of the appropriate certificates. The chances of a petition to the House of Lords being successful on that issue is, in my view, nil.
24. Mrs Adshead concentrated her submissions on the skeleton argument which she had provided. It contains a clutch of Human Rights submissions in which she seeks to rely upon principles of the European Human Rights Convention. First, it is said that there must be equality of arms. That, of course, applies in cases where there is a need for persons to have equivalent representation. However, in this case it must be remembered that she is seeking to judicially review a decision of the Legal Services Commission to refuse her legal aid to support a petition to the House of Lords seeking to appeal against the order for committal. She appeared before the Board, nobody appeared for the other side. Therefore, the doctrine of equality of arms does not arise.
25. Mrs Adshead's complaint, as developed before me, relates to the hearing of the trial between her and her husband and the Cummins. That was back in 1994. It is not a matter which is before this court, nor was it before the Vice Chancellor when he dismissed her appeal.
26. It is also said that she has not been able to partake or have access to the courts. As I pointed out to Mrs Adshead, she has had access on more than one occasion, in fact on many occasions, to the court. There has been nothing which has prevented her coming before this court or other courts to present her case. She submits that the refusal to grant her legal aid was prejudicial, oppressive and biased and has the appearance of a real danger of bias. That could be a ground if it was possible that an appeal could succeed. I repeat that there is no chance that a petition to the House of Lords would succeed. In those circumstances no Board of the Legal Services Commission could have granted her legal aid.
27. Mrs Adshead then raised the questions of legitimate expectation and rationality. In my view, they stand no chance of success.
28. I should just read two paragraphs from the conclusion in Mrs Adshead's written submissions:

"The Respondent [the Legal Services Commission] appears to have taken a perverse view of this matter well beyond the normal parameters of a decision by a Public Authority. The Appellant has been subjected to humiliating, degrading treatment by the Authority including being named a 'w...er' and being threatened by Mr Nuttall of the LSC's Debt Recovery Service with the words 'your are dead'. She has clear evidence of this (which will be provided on request). She considers this 'behaviour' both intimidating and degrading and well beyond what can be perceived as normal and/or acceptable. She submits that the decisions made by the LSC are fundamentally irrational, perverse and just a means of covering up a fraud in which it has unknowingly or knowingly become embroiled.

....

The LSC should pursue the right person for the alleged debt, the Cummins, who have committed the frauds - not the Appellants who are being unlawfully harassed. Legal Aid has never been due to the Cummins and without legal aid they would never have begun court action."

29. Although Mrs Adshead alleges that the evictions were degrading and harassing, the facts must be borne in mind. The Legal Aid Board are entitled to the money as the orders for costs were made and Legal Aid was granted to the Cummins.
30. Mrs Adshead's main complaint is that the Cummins should never have been given legal aid. She believes that they obtained legal aid by fraud and in those circumstances the legal aid certificates should have been withdrawn. If they were withdrawn, the action would never have been started as they did not have sufficient funds to fight the action.
31. The judge heard the building dispute which occurred as a result of a written agreement between the Cummins and Mrs Adshead. The judge found in favour of the Cummins. There was an appeal by the Adsheads; it was dismissed. There must be finality in litigation and is final that, so far as the building dispute is concerned, the Cummins were in the right. In those circumstances, they were entitled to the orders that were made and to the order for costs. On the question of whether the Cummins were entitled to legal aid, even if they were not, on the decision of the court the money would be owed to the Cummins.
32. Finally, I believe it is right to remember what the litigation was about. Having lost, the Adsheads sought to avoid payment to anybody by suggesting that the Cummins had not been legally aided. I reiterate that it has been concluded that the Cummins were legal aided by the Legal Aid Board and there cannot be any reason why Mrs Adshead should not pay them the costs that were ordered. Thereafter she has endeavoured to avoid paying the costs she was ordered to pay. In my view this is a case in which an appeal against the Vice Chancellor's judgment and order would have stood no chance of success. In those circumstances, no Board of the Legal Aid Commission could possibly have granted her legal aid to consider whether to petition the House of Lords.
33. In my view, the application before me is misconceived and I refuse permission.
Order: Permission to appeal refused.