England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(LORD JUSTICE ROBERT WALKER)

		Royal Courts of Justice The Strand London Thursday 30 August 2001

Thursday 30 August 2001

1. LORD JUSTICE PETER GIBSON: This is an application by the second claimant, Joseph Zappia, on behalf of the first claimant, Zappia Middle East Construction Co Ltd ("the company") that Mr Sarosh Zaiwalla, the senior partner in the firm of solicitors acting for both claimants, should be allowed to act as advocate for the company on the substantive application that is before us. That is an application for an extension of time for compliance with an order made by Robert Walker LJ on 5 June 2001 that the claimants provide security for the respondents' costs of the claimants' appeal. That appeal is from the order of Blofeld J on 23 February 2001. Permission to appeal was given by Kay LJ.
2. In paragraph 5 of his third witness statement, Mr Zappia has sworn that he is the sole beneficial owner of the company, the two shareholders in the company acting under his direction. He is therefore able to express the decisions of the company. I accept that it is the company's wish that Mr Zaiwalla should speak for it, but Mr Zaiwalla has no right of audience.
3. The background to this application is this. The appeal is due to be heard in November. The claimants have had a number of counsel acting for them, save for the period between 30 June and 24 July 2001 when the claimants dispensed with the services of both solicitors and counsel.
4. On 2 August 2001, shortly after learning that the application for an extension of time was to be heard today, Zaiwallas wrote to the court asking for another hearing date as the three counsel apparently recently involved in the case were all away on holiday. That application was refused by Robert Walker LJ who pointed out that the application was a short and self-contained point which did not call for knowledge of the whole litigation. That was communicated to Zaiwallas by letter dated 14 August. On 21 August, Zaiwallas wrote to Robert Walker LJ asking that Mr Zaiwalla should appear as the advocate for the company. In that letter Zaiwallas said:

"This is a very sensitive matter and our client in the past felt let down by his lawyers. He does not wish to risk this happening again as the opponent are [sic] perceived by him to be with a powerful clout. He would, therefore, like Mr Zaiwalla to appear at the application on behalf of the Claimant's company Zappia Middle East Construction Company Ltd and the claimant Mr Zappia to appear himself before the Court and explain to his Lordship the reason why he was unable to comply with the Court's order.

His Lordship has confirmed the hearing on 30 August 2001 despite unavailability of counsel of our client's choice because the application is a short and self contained point. .... We would in the circumstances be most grateful if the Court would give special permission in the exceptional circumstances for Mr Zaiwalla to appear on behalf of the claimant company. Mr Zappia, who is the Claimant, of course needs no leave to appear on his own."

5. That request was answered on 22 August by the Civil Appeals Office, giving the directions of Robert Walker LJ, in these terms:

"Lord Justice Robert Walker has stated that, as you say, Mr Zappia may represent himself at the hearing without permission. If he or the company seek to be represented by yourself as a solicitor without the appropriate certificate then permission must be sought at the hearing from the Lord Justice presiding at that hearing (who will not be Robert Walker LJ).

In view of the above Robert Walker LJ has suggested that you may wish to consider preparing written submissions which Mr Zappia can place before the Court in case Mr Zaiwalla is not permitted to make oral submissions."

6. Mr Zappia has today in person asked the court to allow Mr Zaiwalla to appear for the company. The reason he has given for us to take that exceptional course is the difficulties which he says were encountered in obtaining counsel. He points to the fact that counsel of his choice are away on holiday; and he says that it was uncertain whether other counsel could be sufficiently instructed in time so as to be familiar with the case.
7. In my judgment, no good reason has been provided as to why we should accede to that request. The claimants' intention had been to appear by counsel. Hence the application for a different hearing date to suit counsel of their choice. They had had more than two weeks, since they were notified of the refusal of that application, to instruct other counsel or some other person with a right of audience, but they chose not to be represented by such an advocate. Mr Zappia is content to address us on his own behalf, as he is entitled to do as a party appearing in person, and if he wishes to speak on behalf of the company we will allow him so to do. It is not as though the claimants have had no professional assistance in preparing for the substantive application. A skeleton argument helpfully prepared by Zaiwallas, which goes in some detail into the points which they wished to raise on behalf of the claimants, has been put before us. We have read that and we will take into account all that it contains. This does not seem to me to be a case where any injustice or hardship will be caused if this court adheres to its normal practice that only those with rights of audience should be allowed to address the court on behalf of a party. The absence of a person with a right of audience to appear for the company is the choice of Mr Zappia. Accordingly, for these reasons I would refuse this application.
8. LORD JUSTICE TUCKEY: So would I.
9. LORD JUSTICE PETER GIBSON: Mr Zappia, that means, I am afraid, that you will have to do the advocacy. Of course, if there is anything you want to ask Mr Zaiwalla at any time, please feel free to indicate.