England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
BRISTOL COUNTY COURT
(His Honour Judge o'Malley)

		The Royal Courts of Justice The Strand London 7 December 2001

Friday 7 December 2001

1. LORD JUSTICE SEDLEY: This application for permission to appeal has been made on behalf of the applicant, Mrs Gregory, by Mr Roland John Morris. Mr Morris is not a qualified lawyer. He is a retired Post Office superintendent and a former sub-postmaster in north Somerset. In retirement - and from the papers I see he is now in his 80s - he offers what I understand to be voluntary services of a legal character to other members of the community.
2. He has had executed in his favour by Mrs Gregory an enduring power of attorney. In the documents prepared for this court he has suggested that this gives him a legal right to be substituted for her so that his appearance in person is in law her appearance in person in this court. That is quite a dramatic proposition and Mr Morris, when I discussed it briefly with him this morning, had the good sense to say that, like me, he was not that sure about it. Since, however, there are with the papers two medical certificates indicating that Mrs Gregory, both because of depression and because of a chronic heart condition, is quite unfit to conduct her own litigation, I have willingly heard Mr Morris as her friend, and Mr Morris has been perfectly content with that situation. I am grateful to him for the courtesy and clarity with which he has presented Mrs Gregory's case, although I will say something at the conclusion of these remarks about the possible downside of such lay representation.
3. Mrs Gregory and her daughter had brought proceedings against their neighbour for an admitted encroachment of four and a half inches on to their land by the construction of a garage. District Judge Exton, having heard expert evidence as well as lay evidence, made an award limited to £100 nominal damages with no costs to be paid by either side. On Mr Morris' application on Mrs Gregory's behalf for permission to appeal, Judge O'Malley, who heard it after an application had earlier been made to Judge Bursell but had had to be aborted, refused permission to appeal. He did so because he considered that there was no realistic prospect of success on any of Mr Morris' four points. The four points were the substantive issues of trespass to land, the right to light, damage to fencing and a purported party wall award.
4. There the matter might have rested but for the fact that Judge O'Malley came to his decision having heard not only Mr Morris but counsel for the respondents, Mr and Mrs Turner. Although they had not been notified of the application, they had somehow learned of it and they had turned up with counsel to oppose it. Reading Judge O'Malley's reserved judgment, it is plain from it that he was both assisted and influenced by the submissions made by the intended respondents' counsel, and he awarded them their costs of the application before him. Presented with a bill hovering around the £10,000 mark, Judge O'Malley took it with a very large pinch of salt and made summary assessment of £2,000.
5. The first question is whether this application to me is competent. This is because section 54(4) of the Access to Justice Act 1999 says:

"No appeal may be made against a decision of a court under this section to give or refuse permission..."

6. Here, however, Mr Morris, while I think he recognises that he has to accept that the section shuts him out on the four substantive issues which I have enumerated, nevertheless says that it does not exclude him on the question of costs because that was decided for the first time, not by way of appeal but as an original issue, by Judge O'Malley. I am content to accept that proposition. I can see that real injustice could otherwise result if, in giving an unappealable decision to refuse permission on substantive issues, the judge made a quite unwarranted costs order. It would take a great deal to satisfy me that no appeal could ever lie against such an order, and I do not think section 54(4) has that effect.
7. Mr Morris, however, has come to court this morning armed with a point that I admit I found curious: that it is not to this court at all but to a High Court judge elsewhere that appeal lies from Judge O'Malley on costs. If so, then his only proper course would be to abandon this application and go elsewhere. He has, however, I think very wisely, elected not to do so but to accept my offer to hear his application - which seems to me, for the reasons I have given, to be an admissible application - for permission to appeal on the question of costs alone.
8. Mr Morris has made three essential submissions on this issue. He says, first, that there was no need, and certainly no requirement, for the defendants' counsel to be present at all. He says, secondly, that the figure set by the judge, although it cut down a much higher bill, was both arbitrary and excessive. And he says thirdly that the proper order for costs before Judge O'Malley should have been exactly what it was before the district judge; that is to say, that the costs on each side were to lie where they fell.
9. I am afraid that none of those three submissions appears to me to have any realistic prospect of success. I put the test in that way for the moment, notwithstanding what I suspect is the higher threshold that an appeal of this kind would need to meet and to which I will come in a moment. Taking the threshold as the ordinary and modest threshold, it seems to me that the fact that the defendants were there by counsel is not answered simply by saying that that was at their own choice and therefore at their own risk. It is true that without notice applications are a curious hybrid because, as practice direction 52.4.15 provides:

"Notice of the hearing need not be given to the respondent unless the court so directs. The appeal court will usually so direct if the appellant is asking for a remedy against the respondent pending the appeal."

10. This was not a case where an interim remedy was being sought. It was not a case where the court had asked the respondent to attend. But it was a case, as I have said, where, the respondent having elected to attend, it is plain from Judge O'Malley's judgment that he derived not only assistance but conclusive assistance from the submissions which respondents' counsel made.
11. Even in that situation it is by no means obligatory for the permission judge to give successful respondents their costs. He may still say that their attendance was a luxury for which they themselves have to pay. But equally, where it appears to the judge that by attending the respondents' lawyers have clarified the issues and have shown the judge that it is inappropriate to make a grant of permission to appeal which the judge might otherwise have been persuaded to make but which, as he can now see, would only have resulted in a full opposed hearing with the same outcome, then the judge's discretion undoubtedly extends to giving the intended respondents their reasonable costs of, in effect, turning up and heading off an appeal which was going eventually to fail. In other words, this case falls within exactly the sort of factual bracket in which a judge's discretion to make an unsuccessful applicant for permission to appeal pay an uninvited respondent's costs comes into play.
12. There is nothing to suggest that from that point the judge exercised the discretion on a faulty basis. While £2,000 was of course an estimate, it is not perceptibly an arbitrary or unreasonable figure. Indeed, experience suggests that it was quite realistic. The fact that no costs had been awarded by the district judge in the events before her did not in any way dictate a similar order upon an application for permission to appeal. Here the issues were essentially different and the discretion as to costs fell to be exercised afresh.
13. All of this is based upon the ordinary "realistic prospect" threshold. But rule 52.13 of the CPR begins by providing that permission is required from the Court of Appeal for any appeal to that court from a decision of a county court which was itself made on appeal - so that is this case. It then goes on:

"(2) The Court of Appeal will not give permission unless it considers that -

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

14. Even if I were wrong about the issues not reaching the lower reasonable prospect threshold, it is certain that they do not reach this higher one.
15. I want to say one further thing before parting with this case. I have spoken in, I hope, complimentary terms about Mr Morris and I have no doubt that he is a decent man doing his best for others in the community. But there are real risks in acting as a lay advocate because one is assuming duties for which lawyers undergo years of training. It is not surprising in the event that when (as Mr Morris recounts in his skeleton argument) the defendants' counsel asked Judge O'Malley for his costs it came as a bolt from the blue. It would not, with respect, have been a bolt from the blue to a trained lawyer. This is one of the problems that I am afraid a lay advocate must face. A lawyer would know, and would warn the client, that even if PD54.15 was not operated so as to bring the other side to court, it was always possible that they would find out about an application for permission to appeal and turn up. The lawyer would also warn the client that if that happened and if the other side were successful in heading off permission to appeal, they might get their costs. The client would have to gauge that risk along with the other risks of applying for permission.
16. I instance that simply in order to indicate to Mr Morris, and perhaps others, that goodwill is not a substitute for training and experience, even though Mr Morris has some experience of the legal system. I leave the matter there. I do not want him to think I am being churlish, but I do want it to be appreciated that, just as a judge would be unwise out of the goodness of his heart to undertake surgery upon his neighbour, so a layman is not always wise to undertake litigation on behalf of his neighbour without training.
17. In any event, for the reasons which I have given, I am afraid that application for permission to appeal must be refused.
ORDER: Application refused