England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON
TYNE DISTRICT REGISTRY
(His Honour Judge Taylor)

		The Royal Courts of Justice The Strand London WC2A Friday 23 March 2001

Friday 23 March 2001

1. LORD JUSTICE SEDLEY: This is not, I am afraid, going to be a short judgment. As a matter of justice to Miss Knight, it should be made clear that this court has the full extent of her problems before it in coming to its decision.
2. The immediate applications before us are two applications for permission to appeal, one arising out of a claim made in contract by Miss Knight against her former employer, Sage Group, and one made in negligence for personal injuries against the same former employer.
3. Today's hearing was listed a little while ago. Miss Knight in recent days has found it necessary to ask the court to adjourn today's hearings, for reasons which she has set out in a three-page letter of 19 March. It is sufficient to say that we have declined to accede to that application. Miss Knight has asked us today, quite reasonably, for the reasons why. For my part, I was unwilling to grant any adjournment because it seemed to me, first of all, that far too long has by now gone by without any visible movement or progress in the cases; and, secondly, because I could see no reason to think that an adjournment would improve Miss Knight's situation or the prospects of her litigation. I would add that nothing that we have learned today has changed my mind about this.
4. The claim in contract revolves now around an application for permission to appeal against an order by which Judge Taylor, sitting as a Judge of the High Court in Newcastle on 30 October 2000, declined to vacate the trial date set for 6 November for the action but, rather than dismiss the application for an adjournment outright, adjourned it as a preliminary issue to the date of trial itself, so that it might, if appropriate, be renewed.
5. In the personal injury action Miss Knight seeks permission to appeal against a decision of Judge Walton, who himself was sitting on appeal against a decision of District Judge Howard by which Miss Knight's personal injury action had been struck out for failure to comply with a time-limited order made by this court, to which I will come. Judge Walton upheld the district judge.
6. The application for permission to appeal in the personal injury case has already been before Lord Justice Tuckey on the papers. At that stage he refused permission on the ground that the order made was well within the judge's discretion as a trial manager. We have, however, listened, as we always do, afresh to the arguments advanced by Miss Knight today. I certainly, for my part, have come to this question for the first time, without having previously reached a view about it.
7. The applicant, Miss Knight, was employed by Sage Group from 1989 until the end of 1994. She lost her job, it appears, because of absences caused by ill health. An initial claim which she made in September 1994 for unlawful deduction of wages was successful. In October 1996 she issued proceedings, at that stage assisted by solicitors with a legal aid certificate against Sage Group, claiming damages for personal injury in the form of stress and depressive illness caused by the unreasonable demands put upon her in the course of her employment, and by bullying at work.
8. In those proceedings the district judge required proper medical evidence to be filed, the proceedings having initially been issued, by leave, without fully particularised medical evidence. Miss Knight obtained medical reports, but only one of them was served with her particulars of claim. It furnished the basis of an application by Sage Group to strike out the claim on the ground that it did not sufficiently support the case that was sought to be made. The applicant, by now without legal aid, came in person before Judge Brown. Although there had not been sufficient compliance with the rules, he declined to strike out the claim and instead ordered Miss Knight to disclose the other two reports which she had from consultants. Against this Miss Knight appealed by leave of this court, and eventually Evans LJ and I overset the order, to the extent that we did not compel her to disclose the evidence she was unwilling to disclose, and we gave her a period of time within which to put her medical evidence and her pleadings in order.
9. Meanwhile, Miss Knight had applied for permission to seek judicial review of two decisions of the Legal Aid Board (as it then was) which affected the conduct of her litigation. In September 1997 there had been a dismissal of her appeal against the Legal Aid Board's decision to withdraw legal aid in the personal injury claim. Secondly, there had been a dismissal in June 1998 of her appeal against a decision to withdraw legal aid for a separate claim for professional negligence against Miss Knight's former solicitors. Popplewell J refused permission in the personal injury legal aid application on the papers.
10. Miss Knight renewed her application and it, together with the other permission application relating to the professional negligence claim, came before Maurice Kay J in October 1998. Miss Knight did not appear and argue her case on that occasion. The judge in a reasoned judgment refused permission in both cases, having first refused Miss Knight's application to adjourn the hearing.
11. When she endeavoured to appeal against Maurice Kay J's decision, Miss Knight came before Deputy Master Joseph, who placed a condition of filing proper sets of bundled documents upon her application for renewal of the leave application. Those conditions were, it appears, not complied with and Maurice Kay J's decision, in consequence, stands.
12. In May 1997, meanwhile, Miss Knight had issued her breach of contract proceedings, which related to payments due to her under Sage Group's insurance scheme. She considered herself to have a strong enough case to seek summary judgment. This application, however, which came before District Judge Marley in October 1997, failed, and her appeal against the failure was dismissed by Judge Paling in November of that year.
13. Miss Knight then applied to the Court of Appeal for permission to appeal against Judge Paling's order. The Court of Appeal dealt with that application and with the proposed appeal against Judge Brown's disclosure order in the personal injury claim on 28 April 1999, as I have already described. It was in relation to Judge Paling's order that three months were given to Miss Knight to serve her further medical evidence but, so far as Judge Brown's order was concerned, permission to appeal against his refusal of summary judgment was refused.
14. I need to turn now in slightly more detail to the claim in contract, which was issued in May 1997. The present application which relates to this claim has to be seen in the context of the issues arising from the pleadings. These included the defendant's intention to rely on a medical report of a Dr Lipsedge which, it is Miss Knight's contention, had been disclosed to them without her consent.
15. It was on 30 October, before Judge Taylor, that Miss Knight attended and asked for the trial date, which was set for the following week, to be vacated. In the course of that application, Miss Knight also made it clear that she wanted a ruling on the admissibility of Dr Lipsedge's medical report. The judge, as I have said, put the application over to trial, where it was to form a preliminary issue. He refused permission to appeal against his order because of the imminence of the trial and a number of other factors which he spelt out. It is to be observed that neither the admissibility of the doctor's report nor the necessity to adjourn the trial was concluded by him. Both had gone over on his order to the start of the trial itself.
16. An urgent application to appeal against Judge Taylor's order was entertained by Lord Justice Tuckey and was refused on the documents on 3 November. Three days later, when the trial came on, Miss Knight did not attend. Judge Taylor put the trial over to the following day and, Miss Knight not attending then either, her application to vacate was dismissed, as was her claim, resulting in judgment for the defendants and in an order for costs in a considerable amount to be paid by Miss Knight. A week later Judge Taylor refused Miss Knight's application to set aside his two definitive orders.
17. Meanwhile, on 8 December Miss Knight had sought permission to appeal against the order of 30 October, and that is the application which is before us today. Miss Knight tells us that the reason she stayed away from the trial when her application to adjourn it failed was that she was ill and felt by then utterly confused about what was required of her. She simply did not feel up to conducting her case as she was going to have to do. In her grounds, Miss Knight relies on her right under Article 6 of the European Convention on Human Rights to a fair trial, and upon the Civil Procedure Rules requiring effective case management. She contends that the judge was not independent or impartial and that, so far as his decision was an exercise of discretion, it was erroneous, because it prejudged her case.
18. I turn to the personal injury claim, because it seems to me that we need to look at everything before coming to a conclusion on anything. This was issued in October 1996. The appeal Miss Knight seeks to seeks to bring being a second-tier appeal, she needs to be able to demonstrate some issue of practice or principle of general importance, or some other special reason, if she is to obtain permission to appeal.
19. The order against which she seeks to appeal is Judge Walton's order of 18 February 2000, by which he dismissed the appeal from Judge Howard's decision to strike out the personal injury action for non-compliance with the order made by this court in April 1999, giving three months within which to serve the medical evidence necessary to get the claim properly constituted. Miss Knight's grounds are, in essence, that it was wrong of Judge Walton to hold the period of time that had elapsed in the interim against her, that he had failed to manage the case properly, and that his decision to strike out flew in the face of this court's permission to her to file the further medical evidence that she needed. It is the last of these points that Miss Knight has stressed to us today in her oral submissions in support of her application for permission to appeal. She also told us, however, that even at today's date she still lacks the medical evidence she needs in order to perfect her pleadings. That, she says, is not her fault. She is a lay person with quite enough difficulties, in spite of her tenacious grasp of legal procedures, to make it necessary that she should have competent professional assistance, through legal aid, in preparing and presenting her case.
20. This brings me to the judicial review proceedings, both of them relating indirectly to the actions which are in issue. On Miss Knight's (I think) last appearance before this court, in June 2000, when I heard her in person, I understood that the judicial review proceedings were hanging fire. At that stage I was not in a position to know exactly what point they had reached, and the matter was stood over so that I could obtain and review the judicial review files. That has now been done, and it is possible to get a much clearer picture of whether there is anything still pending, in terms of judicial review, which is capable of justifying the revival of the two actions with which we are immediately concerned.
21. Miss Knight had a legal aid certificate enabling her to sue for personal injury, but in 1997 counsel advised adversely on the claim's prospects, and the certificate was discharged in April of that year on the standard ground that there were no longer reasonable grounds for pursuing the proceedings. An appeal to the Area Committee against this decision failed. Miss Knight then sought permission to apply for judicial review. As I have recounted, Popplewell J refused it on the papers. Separately, Miss Knight had obtained legal aid in October 1995 to sue the solicitors whom she had instructed at an earlier date to make an unfair dismissal claim but who, she says, had simply failed to lodge her application to the Industrial Tribunal in time.
22. The relationship between Miss Knight and the solicitors instructed by her to sue her former solicitors broke down. So did her relationship with their successors. Because she in consequence found herself without any solicitor, her legal aid certificate was discharged. The Area Committee, on appeal, gave her an opportunity to restore the position by allowing the appeal provided she retained a fresh solicitor. Miss Knight, however, was unable to do so and the condition upon which the appeal was to be allowed consequently lapsed. Her legal aid lapsed in consequence, although it was made clear to her that if she could find another solicitor she could re-apply. She has not done that. Instead she made a second application for permission to apply for judicial review, to the effect that the decision to withdraw her legal aid was not reasonable, given the difficulties she was experiencing in finding a solicitor.
23. Maurice Kay J heard both applications in October 1998. As I have said, Miss Knight was unable to attend but her application for an adjournment was not accepted and Maurice Kay J gave a reasoned judgment, concluding:

"I have given careful consideration to the papers in this case, all of which I have read. I have had to consider whether to adjourn the matter in the hope that some time in the foreseeable future Miss Knight might find it possible to attend, her health having recovered from a condition which she says has afflicted her for five years. I have come to the conclusion that there would really be be no point in my adjourning these matters. It seems to me that the outcome is inevitable in both cases."

24. Then, as to the merits of the applications, he expressed these conclusions:

"In the first case, as Popplewell J said, once experienced counsel had given the opinion which was transmitted to the Legal Aid Board, the discharge of the certificate was inevitable and there are no grounds shown for any challenge.

As to the second, one cannot have legal aid in a civil matter without a solicitor named on the legal aid certificate and, for as long as there is not a solicitor able and willing to act for Miss Knight, again the action of the Legal Aid Board was and is inevitable, as indeed is the observation made by them that if and when she obtains another solicitor upon the second matter, it would be appropriate for her legal aid to be reconsidered."

25. In March 1999 Deputy Master Joseph gave Miss Knight an opportunity to re-apply for permission (that is to say, to try to make good her absence before Maurice Kay J) provided she lodged proper bundles, failing which the application was to stand dismissed. She did not comply with the condition and that application has consequently lapsed.
26. Today before us Miss Knight has indicated her intention to apply to a judge of the Administrative Court for permission to renew this application. It seems to me that at this distance of time, now more than two years, since Deputy Master Joseph's decision and longer still since Maurice Kay J's decision, this is a possibility so remote that it holds out no feasible hope of a step succeeding which is capable of even beginning to unravel what is now the situation. That situation is that there is no room for further movement in either of Miss Knight's two actions, the contract action or the personal injury action.
27. For reasons which I hope, therefore, are now fully apparent, both of the applications for permission to appeal seem to me to be applications which enjoy no realistic prospect whatever of success. I for my part would refuse both.
28. LORD JUSTICE TUCKEY:I agree.