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 WOLVERHAMPTON COUNTY COURT
(JUDGE FLETCHER)

		Royal Courts of Justice Strand London WC2 Thursday, 20th December 2001

Thursday, 20th December 2001

1. LORD JUSTICE RIX: This is an application by Mr. Hunt for permission to appeal against the judgment and order of his Honour Judge Fletcher, sitting as a judge of the High Court in the Wolverhampton County Court, on 19th September 2000.
2. This application is the latest stage in a long-running history of litigation which began life a number of years ago in a claim by Mr. Hunt and his wife against Mr. and Mrs. Acres in respect of building work which the Hunts had performed at the Acres' home. It was a claim on a building agreement for some £40,000-odd. It was due to come before the court for trial originally in October 1997. However, that trial date was lost and had to be adjourned because of the illness of the judge. It was refixed for May 1998.
3. At that time, Mr. and Mrs. Hunt were in conflict with their solicitors. They either had legal aid at that point or at any rate had had it up to 30th April 1998, as they had had it in October 1997. But there was a dispute, the complete details of which may not matter for present purposes. The essence of the dispute, as explained to me by Mr. Hunt this morning, was that he was very concerned to find that a chartered quantity surveyor whom he had originally consulted as his expert had appeared as an expert for the Acres. Those and other circumstances which I need not go into led him to fall into conflict with his solicitors. That conflict, and the fact that the Hunts' quantity surveying expert, Mr. Whyman, had agreed with the Acres' expert, Mr. Armson, a recoverable figure for the Hunts' claim of only some £20,000 rather than £40,000, led to the dispute and to the discharge of the Hunts' legal aid.
4. It was at that point that Mr. and Mrs. Hunt were forced to seek new solicitors and a reinstatement of legal aid, if they could do so. They sought at that time to adjourn the May 1998 hearing. I believe they made an application to do so but were unsuccessful; but as it turned out, the hearing had to be adjourned in any event for another month to 15th June 1998, because only two days had been set aside for a trial which was then in prospect of taking some four to five days.
5. Mr. Hunt sought again to adjourn the hearing of 15th June 1998 but was unsuccessful. The long and short of it was that, on 15th June 1998, Mr. Hunt, appearing with the help of a McKenzie friend, and Mrs. Hunt, who was not present at the hearing, were under grave pressure of losing their home under the threat of a possession order. They felt that they (as Mr. Hunt puts it to me this morning) had no alternative but to accept the offer made to them that there should be no order for costs and that there should be payment out to the Hunts of the sum of £10,500 that had been paid into court. What the Hunts did not appreciate (and, so far as I can see from the transcript, what Judge Alton did not appreciate either) was that the legal aid authorities might have a statutory charge arising out of the earlier time when the Hunts were legally aided which would swallow up that £10,500; so instead of going to the Hunts to assist them in fighting off possession of their home, that money would go to legal aid.
6. When, very shortly after that hearing on 15th June, the Hunts realised the consequences of the compromise which they had entered into, which was perfected in the form of a Tomlin Order, they sought to set aside that compromise and that order. That led in due course to a four-day trial in October 1998 before his Honour Judge Fletcher. Judge Fletcher gave a lengthy and careful judgment on 1st December 1998. Amongst the points which the judge had to deal with was the issue whether the Hunts had been misled by the Acres' solicitor and/or their counsel as to the legal aid position and as to the effectiveness of the payment out of the £10,500.
7. Judge Fletcher's judgment was against the Hunts on that application to set aside the Tomlin Order. The Hunts then sought permission to appeal from the Court of Appeal and, in a careful and detailed judgment of 27th May 1999, this Court (constituted on that occasion by Swinton Thomas L.J. and Tuckey L.J.) gave a full explanation of their reasons why there was no prospect of success of an appeal from the judgment of Judge Fletcher. Permission was denied to the Hunts on that occasion, and I would incorporate that judgment of 27th May 1999 fully into this judgment.
8. The Hunts then sought to revisit the merits of the disputed Tomlin Order compromise again before Judge Fletcher on 5th October 1999; but, not surprisingly, without any greater success. The matter came again before the Court of Appeal on the Hunts' renewed application for permission to appeal and was dealt with again by the Court of Appeal (this time in the form of Waller L.J.) on 7th November 2000. In a briefer but still very full judgment, Waller L.J. gave his reasons why, not surprisingly, there was no prospect of the matter being able to be taken to the Court of Appeal. I would incorporate that judgment as well into this judgment.
9. All this time, the Legal Services Commission (as it had now become) had an adjourned application to be substituted for the Hunts in the Tomlin Order, in order to give effect to the statutory charge that they had under section 16(6) of the Legal Aid Act 1988 and under the regulations pursuant to that Act over the £10,500 in court. In the circumstances, and in the light of the failure of the Hunts' attack on the Tomlin Order itself, it was inevitable that Judge Fletcher, before whom this application again came, would give judgment in favour of the Legal Services Commission, which he did on 19th December 2000. It is from that judgment that the Hunts' present application for permission to appeal to this court now comes.
10. In his lengthy notice of appeal and the grounds put forward, and in his full oral submissions before the court this morning, Mr. Hunt has again sought to revisit the merits of his underlying claim against the Acres and the merits of his underlying claim to set aside the Tomlin Order compromise. I have made clear to him in the course of his submissions that in those respects his current application is dealing with matters which I have described as "water under several bridges". They are matters which have been visited not only by Judge Fletcher in his lengthy judgment but by judgments of this Court on at least two occasions.
11. However, Mr. Hunt raises two further arguments. One is that Judge Fletcher was an inappropriate judge to have tried the application to set aside the Tomlin Order back in October 1998 because he was a judge on the same circuit as another judge who was the father of the Acres' counsel. That counsel was of course a material witness in the four-day trial in October 1998, wherein the Hunts sought to set aside the Tomlin Order compromise.
12. In my judgment, there is no prospect of success on appeal in respect of that point. If it was in any way a valid point (which in my judgment it is not) it ought to have been raised before the Court of Appeal on the first occasion on which the Hunts sought permission to appeal from Judge Fletcher's judgment of 1st December 1998. It is mentioned nowhere in the full and careful judgment of the Court of Appeal in May 1999, nor is it mentioned in the careful judgment of Waller L.J. on the second attempt to appeal Judge Fletcher's judgment in November 2000. In my judgment, there is absolutely no prospect of success in that point.
13. Finally, however, Mr. Hunt raises before me today and through his notice of appeal an entirely different point, which goes neither to the merits of his underlying claim against the Acres, nor to the merits of his claim to set aside the Tomlin Order discharge. It is concerned with the fundamental question of Article 6 of the European Convention on Human Rights. He seeks to put the matter in this way. Faced as he was on 15th June 1998 by the prospect of conducting his claim against the Acres without legal aid, without legal representation and only with the assistance of the McKenzie friend that he had on that day, but at a time when he and his wife were under very severe pressure (in part because of the danger of the loss of their home) and were in an emotional state, they did not have, in the absence of legal aid and legal representation, an opportunity of a fair trial and were thus forced into the compromise which they entered into on that day.
14. The leading case in the Strasbourg jurisdiction on this point is Airey v. Ireland [1979] EHRR 305, which says that, although legal aid in civil cases is not dealt with expressly in Article 6, it is possible that the absence of legal aid, at any rate in a complex case which requires emotional detachment, may involve a breach of Article 6. That authority is recognised in the English courts as being relevant to such a question (see a recent decision of this Court in which Airey v. Ireland has been considered: Pine v. The Law Society (unreported) 25th October 2001. In that case the Court of Appeal held on all the facts that there had been no breach of Article 6.
15. This is an entirely new point which did not arise until the judgment of Judge Fletcher based upon the Legal Services Commission's application to enforce their statutory charge. It is arguable that the Legal Services Commission is a public body and it is arguable that their attempt to enforce their statutory charge involves a situation in which the retrospectivity provisions of the Human Rights Act may apply to the circumstances of this case, so as to take the scope of the Human Rights Act back to the events of June 1998.
16. I am in no way confident that those arguments would necessarily work in the Hunts' ultimate favour, and I am also in no way confident that the Hunts can sustain an argument, even on the application of the ratio of Airey v. Ireland, that this is the kind of case, involving complexity and a need for the emotional detachment of legal representation, that would bring Mr. and Mrs. Hunt home. Nevertheless, this is an entirely new point which has not yet been considered and was not of course considered by Judge Fletcher below. It is one which I find it difficult to resolve without at least hearing from the Legal Services Commission.
17. What I have indicated to Mr. Hunt is that I am willing to adjourn this application to a further hearing on notice to the Legal Services Commission at which Mr. Hunt can raise again his Article 6 point under the Human Rights Convention. I am unwilling to contemplate that, on that adjourned hearing, Mr. Hunt will be able to revisit any other point which he has argued before me today.
18. In conclusion, I would make two points to Mr. Hunt. The first is that if he avails himself of the opportunity at that adjourned hearing to press his application in respect of the Article 6 point, he of course runs the risk that if he fails at that application he will have to meet an order for costs against him. In other words, my willingness to put this matter over to an adjourned hearing may be a disservice to him in the long run, and he must be fully conscious of that danger.
19. The other matter that I would mention is that it may be that Mr. Hunt would be able to get pro bono assistance from the Pro Bono Unit of the Citizen's Advice Bureau. He will be able to receive further information from the office in this building, and I would advise him to seek such assistance as might be available to him.
20. In all other respects, I dismiss this application.
21. I should add that there is one further difficulty in Mr. and Mrs. Hunt's way and that is that they would in any event need an extension of time of some five months in order to constitute this application as a valid application for permission to appeal. Since the Hunts are litigants in person, my attitude to that is that if, on the adjourned hearing, the Hunts can explain to the court their difficulties in advancing this application earlier than they have done, and if, at the adjourned hearing, the court then hearing the matter were to be sufficiently impressed by the merits of the Article 6 point, then the need for an extension of time might (and I emphasise the word "might") be something that the Hunts can overcome. But that too is left for the adjourned hearing.
ORDER: Application adjourned on notice on one point as stated (ORDER NOT PART OF APPROVED JUDGMENT)