England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Hunt)

		The Royal Courts of Justice The Strand London Monday 22 July 2002

Monday 22 July 2002

1. LORD JUSTICE SIMON BROWN: This application is to my mind completely misconceived. It is an application for permission to appeal against an interlocutory order made by Hunt J on 29 April 2002. That order was concerned with discovery in an action brought by the applicant against a firm of solicitors. The order was in the following terms:

"1. The Defendants give specific disclosure of any documents relating to a charge of £5,285, made to Naz Smyth or the Claimant in about July 1993;

2. Mr Golinsky of the Defendant firm do make a Witness Statement stating to the best of his recollection when he last had the original draft document produced by the Defendants at the meeting on 13th July 1993, and to whom he gave that document when it left his possession;

3. The Claimant's Application for further specific disclosure, identified in his Application dated 21/01/2002 be dismissed;

4. The Claimant do pay the Defendants their costs of this Application assessed at £8,000, such costs to be set off against any Costs Orders made, or in the future made, in favour of the Claimant against the Defendants in these proceedings."

2. It is against paragraphs 3 and 4 of that order that the applicant now seeks permission to appeal. His grounds of appeal read as follows:

"1. Hunt J made the order dated 29 April 2002 absent judgment and therefore in violation of common law duty of Judicial Office and in violation of article 6 of ECHR [see Stefan v General Medical Council The Times, March 11, 1999 (Lord Browne-Wilkinson, Lord Steyn, Lord Clyde, Lord Hutton and Lord Hobhouse); and Flannery and Another v Halifax Estate Agencies Ltd, trading as Colleys Professional Services The Times, March 4, 1999 (CA)]

1.1 Absent consent and absent adjudication by way of a reasoned judgment, his Lordship had not jurisdiction to make any order against the Claimant.

2. His Lordship's costs order against the Claimant pursuant to paragraph 4 of the order dated 29 April 2002 is unequivocally inconsistent with his Lordship's own account set out in his Lordship's letter / statement dated 2 May 2002.

2.1 The said costs order against the Claimant is irrational."

3. Let me explain that reference in paragraph 2 to the judge's "letter/statement dated 2 May 2002". The order having been made, the applicant wrote to the judge's clerk asking for permission to appeal. The judge heard Mr Faryab further on the point and wrote the following in a document initialled by him dated 2 May.

"Mr Faryab. You wrote to my clerk asking for permission to appeal following the hearing of your application for specific disclosure before me on Monday. You omitted to ask me for permission at the end of the hearing and so I have had your case re listed for mention today, Thursday, because there are procedures for asking permission to appeal but they do not include having it done by writing to the judge's clerk. I also understand that, although I indicated to you during the course of discussion after I had heard both you and Mr Nash which were the arguments of Mr Nash I had accepted, that you are not clear as to the reasons for my order and that you would wish me to set them out. For the avoidance of any doubt I will do so adopting the numbers in your draft.

At paragraph 3, you had accepted to me that as the defendants said in their evidence that there were no notes or attendance notes of the meetings etc you were not able to have them but would be free to comment on the remarkable fact of their absence. As to any correspondence resulting therefrom I indicated that I accepted the defendants argument that it was not relevant.

At 3(a) you asked for the original draft document produced by the defendants to the claimant in the tripartite meeting of July 1993. Again the defendant had said they did not have it as it was no longer in their possession. You indicated that you would be content with a further statement which set out when they last had it and who it was given to as far as could be recollected. Mr Nash offered to agree to that.

At 4, you asked for all written instructions received by the defendants from Smyth and/or the claimant from 1989 to the end of 1993. I indicated to you that I accepted Mr Nash's argument that this was speculative application for disclosure or what I described as 'fishing'. I recall saying that there was no specificity reflecting that it was an awful word. I also recall saying that I accepted that instructions received from Smyth were subject to legal advice privilege and that the solicitors were duty bound to claim that privilege on her behalf. You will recall that they said they had written to Miss Smyth in this connection and had no reply. They of course deny ever having acted for you.

At 4(a) you accepted we were not concerned with this any longer as the assertion is they never existed.

At 5 you asked for all invoices to Smyth and documents and attendance notes relating to or touching upon the defendants fees. They again asserted privilege and said these items were irrelevant to your action. I accepted that argument save as to the one item of the cheque you rely on for £5,285 in or about July 1993 and I indicated to Mr Nash and he accepted that he should supply any documentation relating to that payment.

At 5(a) You asked for all accounts ledgers relating to Smyth and/or Clef and you accepted these were now covered by the statements of Mr Golinsky and Miss Shawl.

At 5(b) You asked for accounts, ledgers and corresponding documents from the defendant's bank account at Midland Bank, Baker street, relating to or touching upon the payment in cash by the defendants to the claimant of £10,400 on or about 13th September 1993. In fact by the time of the hearing on Monday there had been disclosed to you the bank statement relating to that £10,400 which is said by the defendants to be the only document dealing with that payment. You then asked me to order further details relating to a further £377 said to have been paid on the same occasion and Mr Nash undertook to examine the accounts to see if there was a record of such payment and disclose it if there was. You accepted that.

At 5(c) You had asked for the receipt signed by the claimant on 13th September 1993 for that sum of £10,400 and accepted that this had been dealt with in the defendants evidence albeit that they said they could not find it.

You had an additional point on the redacted diaries some of which Mr Nash offered to you to inspect.

I took the view that on the major items which were your draft 4 and 5 where I had dismissed your applications you had failed. In addition Mr Nash for the defendants had either covered the other matters by statements or documents already made available to you which made the orders unnecessary or had offered reasonable undertakings in court eg in relation to the £377 and the redacted diaries which you raised before me. I therefore assessed costs in his favour at approximately two thirds of what he was claiming, namely £8,000.

That spells out in simple terms the reasons for the conclusions I came to both as to the orders and the costs. As you will be aware and as you have indicated in writing before you apply elsewhere you have to apply to me for permission to appeal. I shall listen to anything you wish to say in that regard."

4. For my part, I have to say that the grounds of appeal to which I have already referred, even were there not other insuperable difficulties in the applicant's path in this case, were already self-evidently unsustainable in the light of the judge's communication of 2 May. As if that were not enough, however, the remarkable fact is that this action, in which the order now sought to be appealed was made, has since that date been heard and determined. The hearing lasted for no fewer than 14 days before Stanley Burnton J in June and was the subject of a long and thorough reserved judgment handed down on 11 July. Suffice it to say that the applicant suffered comprehensive defeat in the action. The notion that this court would entertain an interlocutory appeal against a refusal to order further specific discovery of documents after the completion of the substantive trial of the action is nothing short of absurd. The applicant, it is fair to say, indicates by his remarks this morning that he has some recognition of that. He now says that he proposes to seek permission to appeal against Stanley Burnton J's order and to seek in some way to marry up this now historic interlocutory appeal with that proceeding. In my judgment, that is an inconceivable order which I have not the least intention of making.
5. As to the costs aspect of the interlocutory order, this court, which (as I suspect the applicant knows) almost never grants permission to appeal in respect of the exercise of the judge's very wide discretion on costs, only ever grants permission on a genuine point of principle. This case does not come within measurable distance of meriting permission. On the contrary, it seems to me that this costs order was positively indulgent towards the applicant. I repeat that this entire application is from first to last hopeless and misconceived, and I must and do dismiss it.
ORDER: Application refused