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 CHANCERY DIVISION
(MR JUSTICE JACOB)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 31 January 2002

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal from an order made on 9 May 2001 by Jacob J, dismissing the claim after a trial in proceedings brought by the applicant, Mr Neil Woodward, against the Commissioners of Inland Revenue.
2. It is necessary to refer, shortly, to the circumstances which led to those proceedings. On 7 October 1992 the applicant was served by the Commissioners with a statutory demand in the sum of £12,944.68 in respect of arrears of tax alleged to have been due from him. He disputed that claim on the basis that there were various matters for which he had not been given credit. Nevertheless, he does not seem to have taken steps to have the statutory demand set aside.
3. On 11 December 1992, his contention that the amount of the arrears ought to be adjusted downwards was rejected by the Inspector of Taxes. He was warned by the Revenue that bankruptcy proceedings would be instituted if payment was not made. A bankruptcy petition was presented on 5 January 1993. There seem to have been difficulties with service; but substituted service was eventually effected on 24 February 1993. The bankruptcy order was made in the High Court on 31 March 1993 at a hearing at which Mr Woodward was neither present nor represented. The bankruptcy proceedings were then transferred to the Croydon County Court.
4. Some three years later, by an application dated 19 February 1996, Mr Woodward applied for an order under section 282 of the Insolvency Act 1986 annulling the bankruptcy order. That application was dismissed on 24 June 1996. The applicant applied under section 275 of the Act for an order varying or rescinding the order of 24 June 1996. That application was dismissed by District Judge Freeborough on 24 August 1998. A copy of his judgment has been included in the appeal bundle.
5. The district judge expressed some concern as to the circumstances which had led to the making of the bankruptcy order; in particular the district judge took the view that there was considerable doubt as to whether any, and if so what, debt had been owing by Mr Woodward to the Revenue in 1992 or 1993. Nevertheless, for the reasons set out in his judgment, the judge was satisfied that the application before him must be dismissed. He said, in the final paragraph of his judgment, that he had not been able to make any findings of collusion or malice in relation to the course taken by the Revenue.
6. Mr Woodward appealed to the High Court. That appeal came before Sir Richard Scott, V-C, on 15 June 1999. In the circumstances set out in the judgment which Jacob J was to give on 9 May 2001 in the present proceedings, the Vice Chancellor took the view that the bankruptcy order made in 1993 should be rescinded. An order to that effect was made by consent.
7. It seems that the Vice Chancellor was careful to express no view at the hearing on 15 June 1999 whether, on the facts before the court in March 1993, the bankruptcy order ought or ought not to have been made. His view was, as it appears from the material before me, that there was no purpose in leaving the bankruptcy order extant; and that the sensible and pragmatic course was to rescind it.
8. These proceedings were commenced by the issue of a writ in the Queen's Bench Division of the High Court on 3 November 1998, seven months before the Vice Chancellor's judgment. The writ is indorsed with a claim for damages for negligence and/or malice arising out of the Commissioner's conduct in proceeding to bankrupt the claimant on 31 March 1993 in circumstances where they knew, or ought to have known, that the sum of £12,944 demanded by the statutory demand was not due or payable by Mr Woodward. That claim was elaborated by particulars, dated 17 August 1999, which set out Mr Woodward's case in much more detail.
9. The issue of the writ in the Queen's Bench Division gave Mr Woodward the opportunity to apply under section 69(1) of the Supreme Act for a jury trial. That arose in the circumstances that he was alleging malicious prosecution. If he had made such an application, then section 69(1) would require require that the action should be tried with a jury unless the court was of the opinion that the trial required any prolonged examination of documents or accounts which could not conveniently be made with a jury. An investigation into the tax affairs of a litigant who is alleging that the Revenue acted maliciously in seeking to obtain a bankruptcy order against him is, at least, likely to require some examination of documents or accounts. Therefore, it is impossible to be confident that an application under section 69(1) of the 1981 Act would have succeeded, if it had been made. No application was made in the Queen's Bench Division, as far as appears from the papers.
10. In circumstances which do not appear from the appeal bundle the proceedings were transferred, on the court's own motion, from the Queen's Bench Division to the Chancery Division. Mr Woodward received notification of that transfer on some date between March and September 2000. On 12 March 2001 the proceedings came before His Honour Judge Rich QC, sitting as a judge of the Chancery Division, on application by Mr Woodward, as claimant, for a retransfer of the proceedings to the Queen's Bench Division and for specific discovery. It is clear from what Mr Woodward has told me that the basis of the application for retransfer was that he wanted to be in a position to take advantage of section 69(1) of the 1981 Act; and to have, if possible, a trial by jury.
11. His Honour Judge Rich was not persuaded. Those applications were dismissed. But the judge directed, on the application of the Commissioners, that neither party should adduce any evidence of fact at the trial, save from witnesses whose witness statements had been exchanged by 5 April 2001. The judge refused permission to appeal from that order.
12. On 18 April 2001 Mr Woodward sent a letter, addressed to the Royal Courts of Justice, in which he indicated an intention to appeal from the order which Judge Rich had made on 12 March 2001. The grounds were his belief, expressed in the letter, that the judge had been prejudiced either to the application or to him as a litigant in person. It was said that the hearing had contravened Article 6 in the Schedule to the Human Rights Act 1998. In the course of that letter Mr Woodward wrote:

"It also came to my attention by accident that the Inland Revenue have been given the exact days of the hearing set down for the end of this month. I have not been informed and clearly witnesses have to be told well in advance so they can plan around the dates.

The hearing dates allocated will have to be vacated due to my health (medical certificates are enclosed), the pending appeal application and the delay in informing me of the dates of the application."

13. He also sought an explanation as to why the court had transferred the application from the Queen's Bench Division to the Chancery Division without any application for such transfer before it; and had, thereby, hereto disenfranchised him of his rights to a jury hearing.
14. The medical certificate enclosed with that letter was dated 27 March 2001. It is in these terms:

"This man is currently, following a recent court case, anxious and stressed. I would not expect him to be calm and able to conduct his case in court for another six weeks."

15. That would have taken matters up to the beginning of May.
16. It appears from the receipt stamps on the letter of 18 April 2001 that it was received in an office in the Chancery Division on 23 April 2001; and that it was passed to the Civil Appeals office on 26 April 2001. Someone has written on the letter in manuscript the word "done". Mr Woodward says that the letter was received back by him with that word on it.
17. The action was listed for a trial to commence on 30 April 2001. That date had been fixed well before Mr Woodward's letter of 18 April 2001 was received in this building; indeed, it must have been fixed well before the hearing before Judge Rich at the beginning of March. In any event the letter of 18 April did not lead the Chancery Listing Office, if they ever saw it, to vacate the hearing date of 30 April 2001.
18. So it was that the action came before Jacob J for hearing on 30 April 2001. Mr Woodward did not appear on that day. The way in which matters developed thereafter is described by the judge in his judgment of 9 May 2001. I read from page 3C of the transcript:

"The case was originally fixed to be heard on 30 April, a Monday. That fixture was made in about October last year. When the case came on, Mr Woodward was not present. I was minded to strike the claim out there and then, but I was persuaded by Mr Newey to give a small opportunity for contact to be made with Mr Woodward. That was done. Therefore the case started the next day. During that day, because Mr Woodward indicated that he was not ready, not a lot happened. So far as the evidence is concerned the case essentially started the day after [Wednesday 2 May].

Mr Woodward's reason for non-appearance on the day the case was due to start was, to my mind, inadequate and remains inadequate. His reason was that in mid-March he had made an application before His Honour Judge Rich, sitting as a Deputy Judge of this Division, for the case to be transferred to the Queen's Bench Division in order that an application could be made for jury trial. His Honour refused that application and refused permission to appeal, essentially on the grounds that the application was made much too late. Quite apart from that, whether or not this case would ever have been appropriate for jury trial, I very much doubt. His Honour's decision was most unlikely to be disturbed by the Court of Appeal.

At the same time, His Honour made an order requiring the parties to put their witness statements in by 5th April, failing which they would not be allowed to give evidence without the leave of the Judge. It was 'as plain as a pikestaff', from his Honour's decision, that the trial date was to stay where it was. Mr Woodward indicated in correspondence that he wished to appeal his Honour's decision. No application was formally made. He wrote a letter to the appeal office. They replied telling him what he had to do. Meanwhile, the date for filing evidence had come and gone. A number of pieces of correspondence indicated that, so far as the Revenue was concerned, the trial was continuing on the day fixed for trial.

On 20th April, the Revenue's solicitor sent a letter, presumably with a large parcel, reading as follows:

'I enclose by way of service the trial bundles. You will note they have been produced in the following format....' (And it is described).

That letter is headed, 'Trial commencing on 30th April 2001', and Mr Woodward is reminded of his failure to serve any witness statements by 5th April. Mr Woodward made no contact with the Revenue following receipt of that letter. The date was fixed and that is that. At the end of the speech for the defence, after all the evidence had been given, Mr Woodward showed me a copy of a letter, which he said had been sent by the Court of Appeal office. He indicated he wished to appeal and said he had assumed that the trial date would be automatically vacated. The letter dealt with a number of other matters. On top of the letter was the handwritten word 'done'. That all happened, I think, before the Revenue sent these bundles. I do not think it was reasonable to assume the trial date had been vacated at all on the basis of that word.

Another reason Mr Woodward advanced for seeking an adjournment, as he did on the first day of the trial, was that he had medical problems. I have seen the medical certificate. That does not indicate sufficient medical problems at all. In fact, throughout the case, Mr Woodward conducted himself without any apparent medical difficulty whatever.

On the Revenue side, they had produced all the witnesses. There were not less than 10 actually called, although originally there were going to be 11 (Mr Woodward accepted the evidence of one of them). A number of those witnesses had to come down from Scotland. To adjourn the trial would have been a gross injustice to the defendants. Not only would there have been an ordinary injustice; in this particular case Mr Woodward was accusing a number of Inland Revenue officials of conduct which can at best only be described as scandalous and perhaps dishonest. They were entitled to have their names cleared and not merely because these allegations had been made in litigation. At an earlier stage, in about 1998, Mr Woodward had seen fit to put up advertisements in and around their place of work, and in one case, I am told, near their home premises, indicating that they were not honest. They were entitled to a trial just as much as Mr Woodward."

19. The judge went on to hear the action. He heard evidence from Mr Woodward, notwithstanding that Mr Woodward had not served a witness statement in compliance with Judge Rich's order of 12 March 2001. The circumstances in which Mr Woodward came to give evidence are described by Jacob J at page 8 in the transcript of his judgment where he said:

"I should just recount how it is that he came to give evidence at all. Judge Rich had indicated that Mr Woodward should not be allowed to rely upon any evidence without having provided a witness statement by 5th April. But there was provision that leave of the Judge could be given. Mr Woodward began opening the case. It became fairly evident that he was going to make a number of allegations of fact, and it seemed to me better that he should do that on oath and be subject to cross-examination rather than leaving it so that his assertion was untested. Besides the Revenue had positive points to put to him."

20. The judge found Mr Woodward to be an unreliable witness. At page 9C-D he explained why in these terms:

"As a result of that, Mr Woodward was cross-examined. Document after document, which had been sent to him by the Inland Revenue, was put to him and he claimed he did not know whether he had received it or not. On a number of occasions he did accept that he had been deliberately evading the Revenue: two letters he had marked in his handwriting 'gone away'. He seems to have had a number of addresses. Sometimes he may have been writing letters with the intention that any reply from the Revenue went to the wrong address. A particularly important letter certainly seems to be in that class."

21. The judge dismissed the claim for the reasons which he gave in his judgment of 9 May 2001. In the final paragraph of that judgment his conclusion is summarised thus:

"This case should never have been brought. The accusations made against the Inland Revenue officials involved in the case were wholly a construct of Mr Woodward's mind. They bear no resemblance whatever to reality and I dismiss the claim."

22. It is important to keep in mind that the judge was not concerned to try the question whether Mr Woodward owed any tax. The question before him was whether the Inland Revenue had acted maliciously or negligently in bringing the bankruptcy proceedings in 1993. He rejected that claim.
23. It is against that decision which Mr Woodward seeks permission to appeal. His appellant's notice was filed on 26 October 2001. That is some 5½ months after the date of the order of 9 May 2001, and some 5 months after the time by which the notice should have been filed if it were to comply with the requirement in CPR 52.4(2). In those circumstances, he applies to this court for an extension of time under CPR 52.6(1). The grounds upon which an extension of time is sought are set out under section 10 of the appellant's notice:

"1. That I have been unable to process this application within the normal time limits due to evidence for the application not being available, and my medical condition.

2. That the hearing commencing the 30th April 2001 breached the Human Rights Act Article 6.

3. That in applying strict time limits without reference to the difficulties of a litigant in person processing legal matters and the complicated nature of this action would be unfair. I would therefore ask the court to exercise its discretion and allow a late appeal."

24. Those grounds are elaborated in some respects in the skeleton argument which Mr Woodward has prepared for use at this hearing. Under two headings he says:

"1. Delays in obtaining transcript.

a. Judgment - via Revenue

b. Transcription of hearing - not available - no tape of hearing was running according to transcription firms.

c. Time was needed to research grounds of appeal ie Human Rights Acts etc.

2. Litigant in person

a. Limited financial and legal facilities resources to research grounds and procedures.

b. Pressure of work.

c. Health - advised to avoid the case to prevent burnout or breakdown from stress.

d. Complex nature of the case."

25. Mr Woodward has not put before me any medical evidence which could support a view that for a period of 5 months, following the order of 9 May 2001, he was unable to prepare and file an appellant's notice alleging that his trial had been unfair. If he received advice after 9 May 2001 that he should avoid further involvement in the case because he was at risk from stress, I have not seen that advice. The only medical evidence that I have seen is the certificate dated 27 March 2001 to which I have already referred. In those circumstances I find the explanation that Mr Woodward has offered insufficient to explain a delay of five months. It is pertinent to have in mind the reason why what many will see as a very short period of time for filing the appellant's notice has been prescribed by rules of court. The reason is set out at note 52.4.1 in Volume 1 of Civil Procedure:

"The brevity of the time allowed reflects a clear policy decision in favour of finality. Any party seeking to challenge a judicial decision must move with expedition. In the immediate aftermath of the judgment below both the party and his advisers are fully seized of the case. They can be expected to formulate any grounds of appeal without delay. The Civil Procedure Rule Committee has firmly rejected the recommendation in the Bowman Report (Ch 7 para 7) that six weeks should be allowed for commencing appeals against final decisions."

26. In the present case it is clear that Mr Woodward had taken the view by the end of the hearing in May 2001 that he wanted to appeal if he could. He asked the judge for permission, which was refused. It is equally clear that the complaints about the trial which he now wishes to advance would have been firmly in the forefront of his mind in May 2001. In those circumstances, the service of a notice alleging that his trial had been unfair was not a matter which required any great research or investigation.
27. Nevertheless, in deciding whether or not to grant an extension of time, it is relevant to have regard to the underlying merits, or lack of meritss, of the appeal for which permission is sought. The grounds of appeal are set out in section 7 of the appellant's notice in the terms to which I have already referred:

"The hearing on the 30th April 2001 was unfair and in breach of the Human Rights Act (Article 6)."

28. Arguments in support of those grounds are set out in section 8:

"1. The Court in forcing me to proceed with the hearing despite medical evidence I was unfit meant my case was adversely affected and breached my right to a fair hearing.

2. That it was wrong and adversely prejudicial to my case to force me to proceed without proper notice and preparation. (The Court administrators had mis-informed me the hearing on the 30th April 2001 had been taken out of the list to allow an appeal against Judge Rich's order).

3. That the Judge in ordering me to submit to cross examination without proper notice and in conflict with Judge Rich's order that no evidence would be allowed because statements had not been prepared in time adversely and unfairly prejudiced my case.

4. That the Courts in refusing a litigant in person to tape record proceedings unfairly prejudices presentation of the case in breach of civil procedures guidelines and the Human Rights Act."

29. Those arguments are developed in a full argument which Mr Woodward has put before the court. They have been the subject of oral submissions before me.
30. The judge took the view that it was not unfair to proceed with the hearing in the circumstances set out in his judgment, and to which I have referred. In particular he was not impressed with the medical certificate given some five weeks earlier, or with Mr Woodward's explanation that he had expected the date of the trial to be vacated. A decision whether or not to proceed with the trial in circumstances where one party is seeking an adjournment at the outset of the trial is peculiarly within the competence of the trial judge, who is likely to have a much better appreciation at that time than this court can have after the event whether it is safe to proceed. I say "safe to proceed" because a trial judge will have in mind the overriding objective of dealing with the case justly. He will have well in mind that there is no purpose in commencing a trial if, for whatever reason, the trial cannot be a fair trial. To hold an unfair trial is the antithesis of the court's function. He will also have in mind that if, notwithstanding his decision to commence the trial, it appears during the course of the trial that one party is unable to put his case properly before the court - so that a fair trial becomes impossible, and can be seen to have become impossible - the judge can adjourn the trial or direct that there is to be a new trial at a future date. In my view there is no basis upon which this court would think it right to interfere with the judge's decision to proceed with the trial in this case.
31. It was plainly in the judge's mind that Mr Woodward was seeking to have the matter transferred to the Queen's Bench Division so that he could take advantage of the statutory right to have a jury trial. But the judge was not impressed with that for three reasons. First, he thought that the application to Judge Rich was made far too late; secondly that he thought that the judge was entitled to take the view that this was not a case which a court would regard as suitable for a jury trial; and, thirdly, he thought that Mr Woodward had not appealed Judge Rich's order and that there was little chance that he would obtain permission to do so.
32. Each of those reasons seems to me to have force. Nor am I persuaded that anything happened during the course of the trial which should have led the judge to reconsider his decision to proceed; or which can be regarded as unfair.
33. To take the two points relied upon by Mr Woodward in his appellant's notice, the judge was plainly entitled to take the view that if, as is not unusual where an unrepresented litigant is presenting his own case, Mr Woodward wanted to put before the court in the course of submissions matters which ought properly to be the subject of evidence, the appropriate course was to give him the opportunity to give evidence about those matters on oath and to allow cross-examination. To exclude those matters from the trial, without giving Mr Woodward that opportunity, would be potentially unfair to him. To allow the matters to be raised without giving the Commissioners the opportunity to test them in cross-examination would be unfair to the Commissioners.
34. The second point taken in the appellant's notice is that the judge refused to allow Mr Woodward to use his own equipment for the purpose of recording the proceedings. The practice as to the recording of proceedings is the subject of the Practice Direction (Miscellaneous Provisions Relating to Hearings), which supplements CPR Part 39. Paragraph 6, to be found at 39PD-006 in Volume 1 of Civil Procedure is in these terms:

"6.1 At any hearing, whether in the High Court or a county court, the judgment (and any summing up given by the judge) will be recorded unless the judge directs otherwise. Oral evidence will normally be recorded also.

6.2 No party or member of the public may use unofficial recording equipment in any court or judge's room without the permission of the court. To do so without permission constitutes a contempt of court.

6.3 Any party or person may require a transcript or transcripts of the recording of any trial or hearing to be supplied to him, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript."

35. The reason for the general prohibition against the use of unofficial recording equipment is obvious. The court is concerned to avoid a situation in which there may be a subsequent dispute as to which of two recordings is an authentic record of the proceedings. The practice in the Royal Courts of Justice is that all proceedings in court are recorded on a master tape to which, if need arises and cause is shown, a party may have access. I do not know whether that practice was followed in the present case; but I have no reason to think that it was not. It seems clear from what Mr Woodward has told me that he did not apply to the Mechanical Recording Department for access to the master tape. That is not a matter of criticism of him; it may well be that he did not appreciate that was what he needed to do. But, that may explain why he has not obtained a transcript. There is nothing to suggest that, when the judge refused Mr Woodward permission to use his own equipment, the judge had any reason to think that the usual practice would not be followed.
36. If I do not refer to each of the other points made by Mr Woodward in his carefully prepared skeleton argument, it is not because I have not considered them. It is because, having considered them, I do not think that they lead to the conclusion that justice requires that this application, made (as it is) some five months at of time, should be allowed to proceed.
37. Mr Woodward's conviction that he has been ill-treated by the Revenue - subsequently by the trial court - is undoubtedly deeply held. It is unlikely that anything that I have said will shake that conviction at all. I am satisfied, however, that it would do him no favour to allow him to expend further time and incur the risk of further costs by permitting this matter to go to appeal.
38. The application for permission to appeal is refused.
Order: Permission to appeal refused.