England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(Lloyd J)

		Royal Courts of Justice Strand London WC2 23rd August 2002

23rd August 2002
1. LORD JUSTICE ALDOUS: There are two applications for permission to appeal in this action by Mr Perotti against Collyer-Bristow, a firm of solicitors, and Mr Frank Hinks of counsel. They arise out of a judgment given by Lloyd J on 24th May 2002. I do not have a transcript of his judgment, but I do have a note of the judgment taken by the defendant's solicitors. From that it seems that judgment was given in favour of Mr Hinks because the statement of case of Mr Perotti did not disclose a cause of action which stood a chance of success.
2. In the action Mr Perotti alleges that the defendants were negligent in the way that they acted for him. At the heart of his grounds, for which appeal is sought, is the way that the judge acted at the hearing.
3. The background is as follows. An application by Mr Hinks for judgment was due to be heard on 22nd February before Neuberger J. At the hearing Mr Perotti objected to the judge hearing the matter and the judge excused himself. The application was adjourned so that it came on before LLoyd J on 24th May 2002. Mr Perotti did not attend the hearing. He had given notice of his intention not to appear to the solicitors acting for the defendants. In a telephone message he had indicated that he was going to be evicted from his home on the day of the hearing and therefore it was not appropriate that the hearing should go ahead on the Friday.
4. The solicitors acting for the defendants suggested in a letter, dated 22nd May 2002, that he should apply to the applications judge on Thursday, 23rd May 2002, for an adjournment. The letter went on to say that if such an application was made, whilst as yet they had not taken instructions, they thought it unlikely their clients would oppose an adjournment for a short period. However, they pointed out that it was necessary that the matter should be heard at the earliest opportunity. The letter concluded:

"If we have not heard from you by 9.30 a.m. tomorrow morning [I interpolate that that is 23rd May 2002] we shall assume that you are intending to attend on this hearing and we shall make our application for relief sought in the application notice."

5. Nothing was heard further from Mr Perotti and he did not attend the hearing.
6. The judge was informed of the position, but concluded that in the absence of an application for an adjournment it was right that he should go on and hear the case. The judge referred to the right contained in the CPR for Mr Perotti to apply to set aside any order that he would make. The judge then went on to consider the application. He went through Mr Perotti's pleading and concluded that there was nothing in the claim against Mr Hinks which offered the slightest chance of success. He, therefore, gave judgment under Part 24 in favour of Mr Hinks.
7. In the application for permission to appeal Mr Perotti draws attention to the fact that on the day of the hearing he was being evicted from his house. He told me today that he believes that the date of the eviction had been arranged in a collusive manner to prevent him attending the hearing. In any case, it was for that reason that he was not in court to put his case and to hear the judgment of LLoyd J.
8. He says that he had informed the defendants that an adjournment was necessary and in those circumstances what happened violated his rights under Article 6.1 of the Human Rights Convention. He says that he has no knowledge of what happened at the hearing before LLoyd J, and, therefore, he is unable to make full and proper grounds for appeal. He submits that he is entitled to be provided with a transcript of the entire hearing because until he receives that he does not know whether the lawyers for Mr Hinks performed their lawful duty to the court. He also submitted that it was wrong for the judge to continue with the hearing and it was unreasonable and disproportionate for him to do so. In those circumstances, and in particular where he has a good claim against Mr Hinks, the judge came to the wrong conclusion. He also requests that he be provided with legal representation and that the trial of this action, set to start on 21st October 2002, be vacated or adjourned generally. He seeks further directions.
9. At the outset I believe it is appropriate to deal with the submission that the judge should have excused himself from hearing the application as he knew Mr Hinks when he was at the Bar. I conclude that that submission is totally misconceived. The full facts were set out by the judge. They do not amount to a sufficient connection as to warrant the judge excusing himself from the hearing. It was his duty to carry out his judicial task in that case.
10. CPR 39.3 provides that the court may proceed with the trial in the absence of a party. It goes on to make provision for the court to be able to set aside its judgment if the applicant acted promptly when he found out that the court had exercised its power to strike out or to enter judgment, or make any order against him, and had a good reason for not attending the trial and has a reasonable prospect of success at the trial.
11. Upon the judge's judgment it is apparent that the judge would have been very unlikely to set aside his judgment as he had concluded that Mr Perotti did not have a reasonable chance of success against Mr Hinks. In those circumstances, there does not appear to me to be any point in adjourning this application to enable Mr Perotti to make an application under CPR 39.3.
12. I accept that it may not have been practical for Mr Perotti to attend on the Friday before the judge as it was that day that he was going to be evicted. As he pointed out, his home contained a great number of documents which he had to deal with. In those circumstances, it would be right that this court should consider Mr Perotti's submission as to the correctness of the judge's conclusion that the claim against Mr Hinks did not stand a chance of success. That was a conclusion reached by the judge without any assistance from Mr Perotti.
13. However, that cannot be done without considering a transcript of the judgment which I do not have. However, I do not believe it necessary, or right, that the public purse should be made to pay for a transcript of the proceedings. I give permission to Mr Perotti to go and listen to the tape, if he wishes, and to provide a transcript of it at his own expense if he so wishes. He should obtain a copy of the judgment at public cost, but no more, if he has not already got it.
14. I have hesitated as to what is the appropriate way to proceed. I am conscious that Mr Hinks may not be able to recover any costs order that is made against Mr Perotti. However, I believe it right that this court should consider Mr Perotti's application for permission to appeal against the order of LLoyd J. That is, I believe, only possible with a hearing upon notice. In that way the court will have the assistance of submissions on behalf of Mr Hinks as to whether the judge was correct to give judgment in favour of him.
15. I, therefore, have concluded that this application should be adjourned to be relisted as an application on notice for permission to appeal with appeal to follow if permission is given. The sole issue to be considered will be whether the judge was right to give judgment in favour of Mr Hinks. I direct that a skeleton argument on behalf of Mr Hinks should be filed within ten days unless an application for further time is made. The matter is then to be relisted as soon as possible with the hope that the trial date in October will not need to be vacated. Whether or not that will need to be vacated will depend upon when this hearing can take place. It is a decision for the Chancery Division.

THE CLAIMANT: My Lord, Chancery Division? Are we not in the Court of Appeal?

LORD JUSTICE ALDOUS: Just shut up.

THE CLAIMANT: Sorry, my Lord.

LORD JUSTICE ALDOUS: As I have said, the sole matter which this court will consider when the adjourned application comes back will be the question of whether the judge was right to give judgment in favour of Mr Hinks. That matter only is to be adjourned and to come back before this court.

THE CLAIMANT: Can I get the facts right, my Lord? We are not going to deal with whether he should have heard the application in my absence?

LORD JUSTICE ALDOUS: If you had listened. There isn't any point in doing so because we are going to decide the matter as to whether the judgment should --

THE CLAIMANT: I am not a lawyer. I don't think like one, my Lord. Please be patient.

LORD JUSTICE ALDOUS: This court will decide whether the judge was right to strike out your case against Mr Hinks.

THE CLAIMANT: Yes. What --

LORD JUSTICE ALDOUS: In those circumstances there isn't any point in considering whether he was right to hear it or not because you will have a hearing on the merits.

THE CLAIMANT: Yes, now it is clear, my Lord. You said permission to appeal, so did you -- do I assume that I didn't have an automatic right of appeal because I made that point before? I wasn't the sure.

LORD JUSTICE ALDOUS: It is quite clear. I will add this to my judgment. Mr Perotti needs permission to appeal and that is the application which will come before this court on the adjournment.

THE CLAIMANT: Thank you, my Lord. That is crystal clear. The next thing, my Lord, I am on holiday -- I have not had a holiday for the 11 years I've been litigating in person -- for the whole of September. I need that, if I am not going to have a break now, my Lord, and I shall be on holiday for the whole of September. So I don't know. If they want to list it for 1st October. I shall be ready from 1st October onwards. Does that affect your judgment at all?

LORD JUSTICE ALDOUS: No, it does not affect my judgment. You will have to apply and talk to listing. It is not for me. I don't list cases.

THE CLAIMANT: So when you said "as soon as possible" that is to be taken under the umbrella that if a party -- it may also be that Mr Hinks is on holiday for the whole of September. If a party is on holiday, then it can't be listed whilst they're on holiday.

LORD JUSTICE ALDOUS: I add nothing. As soon as possible. Right. We move on. We will adjourn to 2 o'clock.

THE CLAIMANT: Do I have your leave to excuse myself from a hearing if it is listed when I am on holiday?

LORD JUSTICE ALDOUS: I am not here to be questioned, Mr Perotti, as I have told you. There is no point in doing that. Just keep yourself under control. I will not be questioned by you, so don't ask any more questions.

THE CLAIMANT: But do I understand you to say --

LORD JUSTICE ALDOUS: Otherwise I shall deal with you appropriately. Don't ask me any more questions.

THE CLAIMANT: I want to get this right. So I can't ask you to refer me to any laws or anything. I can't ask the court to discuss law. I don't know. I mean, I'm asking. I need to ask this question.

LORD JUSTICE ALDOUS: I told you not to ask any questions.

THE CLAIMANT: So I can't say to you, my Lord, are there any authorities which assist me that I know nothing about?

LORD JUSTICE ALDOUS: We will adjourn to 2 o'clock.

(Lunch adjournment) ORDER: Application adjourned. Application to be relisted as an application on notice for permission to appeal with appeal to follow if permission given.