England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London, WC2 Thursday, 3 October 2002

1. LORD JUSTICE KEENE: The applicant in this matter seeks permission to appeal against decisions of His Honour Judge Ryland at the Central London County Court on 7 and 8 January 2002. The applicant was the claimant in proceedings started in November 1997 in which she claimed damages against the defendant, her former employer, for psychological injuries suffered through bullying and stress at work and for an untruthful and negligent reference provided by the defendant to a prospective employer, the British Red Cross. She had been employed by the defendant from 1993 until 1996.
2. The matter clearly took a long time to come to trial but eventually in September 2001, almost four years after the proceedings began, it was set down for a five-day trial beginning on 7 January 2002. On 13 December 2001 the applicant wrote to the court asking for an adjournment of that hearing. She was advised by the court to make the application for an adjournment on the morning of the trial itself, 7 January. Subsequently she lodged a formal application citing two grounds, first, that she was at the time incapable of dealing with the stress and strain of a trial representing herself due to symptoms suffered while withdrawing from an anti-depressive drug, Seroxin. Secondly, she said that her legal aid certificate had been discharged and she had lodged an appeal on 7 December 2001. That application for an adjournment was opposed by the defendant. Miss Faris attended court on the morning of 7 January and duly sought the adjournment. Her application was refused and it is that decision which is the first of the decisions now under challenge.
3. Before the County Court judge Miss Faris relied on the two matters to which I have just referred. So far as the ground based on illness is concerned, she produced a letter from her general practitioner Dr Sally Ind dated 14 December 2001, some three-and-a-half weeks earlier. However, it did say Miss Faris was severely depressed and unable to cope with a hearing "at this time". It went on to say that she was unlikely to be fit before February at the earliest. A later letter from Dr Ind was also put before the judge, dated 3 January 2002; it seemed to have been obtained by the defendant. Dr Ind had seen the applicant on that day and her opinion had changed. She now stated that Miss Faris -

"seemed fully in control of herself, articulate, aware and certainly well able to appear in court."

4. That letter of 3 January was in fact addressed to the trial judge at the county court. The applicant also produced to the judge a document deriving from the manufacturers of Seroxin, describing the possible complications which can take place if the drug is withdrawn. That is relevant because Miss Faris tells me that she stopped taking the drug on 30 December. The judge commented in his judgment, referring to the document:

"It sets out those symptoms and it seems Miss Faris described one of them, that of being sick, this morning as applying to her. She does not have tingling, paraesthesia or whatever, and the rest of the symptoms she said really did not apply to her. It is to be noted that that description in that particular drugs manufacturer's warning notice sets out that that applies to certain people and the majority of people will not have those symptoms."

5. The judge in the light of all that evidence was not satisfied that the applicant was not fit enough to conduct her case. He also bore in mind the fact that she had previously represented herself both before a district judge and before an industrial tribunal, the latter being a four-day case in which she had been successful. That was a factor relevant also to the second ground on which the applicant sought an adjournment, namely that her legal aid certificate had been discharged and she was seeking to appeal that decision. That appeal was to be heard in the week beginning 21 January 2002.
6. In considering this matter the judge took into account the fact that the applicant had been offered an appeal date by the Legal Services Commission of 19 December 2001 but had had that vacated. According to the judgment, no explanation was given to him on 7 January 2002 for that. He also bore in mind that legal aid was now difficult to obtain for personal injury claims and he was not persuaded that the Legal Services Commission was likely to reverse its decision.
7. Given the age of the case and the costs already incurred, he refused the adjournment sought but he did adjourn from about lunch time on 7 January until 10.30 the next day. It is also clear that the judge took into account the ability of the applicant to represent herself as demonstrated by the matters to which I have already referred. On this aspect of the appeal, that is the refusal of an adjournment beyond 8 January, the applicant contends that the judge was wrong to find that she was fit to represent herself without allowing her an opportunity to obtain a recent medical report to refute that of Dr Ind. Miss Faris says about her medical condition that on that morning before the judge her words were slurred and so she should have been given the opportunity to get registered with another general practitioner and to obtain his or her opinion. She also complains that the defendant had not been entitled to go to Dr Ind to obtain that further letter.
8. So far as the legal aid argument is concerned, she contends that the judge was wrong to find that she had failed to take all possible steps to secure an earlier hearing of the legal aid review and that he was wrong to prejudge the outcome of that review.
9. I have to start from the point that the judge here was exercising a discretion when making this decision about whether or not to grant an adjournment. He had the benefit of seeing the applicant at the time on 7 January and of hearing her. In those circumstances this court will be slow to interfere with such a discretion unless the exercise of it was clearly wrong. The medical evidence put before him, which I have already summarised, did not demonstrate that the applicant was unfit to conduct her case properly. It tends to suggest the opposite. That evidence was up to date with the latest medical judgment only four days before. Whether or not the defendant had been entitled to seek that further opinion from Dr Ind is beside the point. It may be, I know not, that the applicant has some remedy in respect of that particular procedure. But the fact remains that that evidence was put before the judge, it was patently relevant and he was entitled to take it into account. I would go so far as to say that he was required to take that into account. In those circumstances he was not obliged to let Miss Faris go and get another medical opinion. He had, after all, a very recent one put before him. It seems to me that his decision on that particular point is unassailable.
10. As far as the legal aid position goes, the judge, in considering that, had to balance a number of factors. Undoubtedly, if the applicant's legal aid certificate were to be reinstated, that would have assisted in the presentation of her case. That factor pointed towards an adjournment on that ground, but there were other factors pointing the other way. This case had been dragging on for years. To find a five-day slot if this one was vacated would no doubt have meant considerable extra delay. The legal aid appeal hearing on 19 December had been vacated at the applicant's request. The outcome of any future appeal hearing was far from certain with the odds, if anything, against the applicant. She was a person with some experience and ability at conducting cases in person. When one takes all those matters into account, this court could not say that the judge exercised his discretion in a way that was clearly wrong.
11. I can see no real prospect of a successful challenge to his decision of 7 January to refuse the adjournment sought.
12. The other decision which it is sought to challenge arises out of events on the following day, 8 January 2002, the date to which the trial had been adjourned. On that day the applicant did not appear. In the event the judge dismissed her claim. She now argues that he was wrong to do so. Miss Faris says that she was in such a state on 8 January that she was not able to get to court to pursue her claim. She emphasises that the outcome has been disastrous for her and says the whole of this matter has ruined her life. I have to bear in mind that the judge had seen her the previous day and was able to take into account her condition as she appeared then as well as the medical evidence to which I have already referred. It is in those circumstances understandable that he was prepared to proceed. In the event the court gave judgment against her in her absence. Her remedy, if she had some explanation for not attending, was to apply under to the court under the Civil Procedure Rules, Rule 39.3 (3) for the judgment to be set aside. That application should have been made to the trial court. It seems that no such application has been made. In those circumstances I can see no prospect of the Court of Appeal being prepared to intervene on the merits of the damages claim. Nor is there any basis on which the Court of Appeal could say the judge was wrong to proceed to deal with the matter on 8 January, given the information which was before him.
13. It follows that there is no chance of a successful appeal in this case and therefore this application for leave to appeal must be dismissed.
Order: Application dismissed