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
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW AND AN EXTENSION
OF TIME APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Tuesday, 24th September 2002

1. LORD JUSTICE KEENE: There are before me this afternoon two applications made by Mr Dhanota. He is a prisoner at HMP Long Lartin having been sentenced to 15 years' imprisonment on 11th May 1998 for drugs offences. He acts in person. Prior to today's hearing he sought a production order so that he could conduct his case in court. He had in previous correspondence indicated that he might be satisfied having the matter dealt with by means of a telephone submission and judgment. I took the view that in the circumstances the matter could be appropriately dealt with without the need for a production order and that decision of mine has been confirmed, despite subsequent objection from Mr Dhanota, by a decision of Lord Justice Carnwath. Consequently, this afternoon I have heard Mr Dhanota over a telephone link with the prison and he has been able to conduct his case fluently and with a very commendable grasp of detail. He is listening to this judgment over a telephone link. The proceedings have been conducted at this end in open court.
2. The first of the two applications for permission to appeal in chronological order is the one numbered 2001/2782. In that application Mr Dhanota seeks permission to appeal against a decision of Mr Justice Maurice Kay, sitting in the Administrative Court, dated 4th July 2001 whereby permission for judicial review was refused. The appellant's notice in this case was filed on 12th December 2001, over five months after the decision. Under the Civil Procedure Rules, Rule 52 (15) (2), applications for permission to appeal against refusals of judicial review permission must be made within seven days. It follows therefore that Mr Dhanota is very substantially out of time with this application. However he emphasises that he is a prisoner in a high security prison where he faces, he tells me, considerable difficulties in preparing cases such as this. Moreover he tells me that he indicated soon after the decision of Mr Justice Maurice Kay that he wanted to appeal and sought the requisite forms from the Administrative Court. He also tells me he sent a letter dated 29th July 2001 to the Court of Appeal.
3. None of this, to my mind, provides an adequate explanation for why it took of the order of five months for the appellant's notice in this case to be lodged.
4. Nonetheless, before considering whether or not to extend time as required, I propose to go on to consider the merits. If there is clearly a properly arguable case it would be in the interests of justice to extend time. The judicial review claim form challenges a decision by the governor of Long Lartin prison dated 16th March 2001. The complaint essentially was and is that Mr Dhanota had been prevented from having his computer in his possession in prison, a computer which he says he needs to conduct other litigation in which he is involved. He has apparently copious data stored on computer discs. It is right that he had previously made a number of requests to similar effect. He tells me he began making applications to obtain a computer in 1999. The decision of 16th March 2001 under challenge resulted, in particular, from a request made by him in writing on 9th January 2001; that appears at page 32 of the file which is before the court. In the application on this request/complaint form Mr Dhanota asks that he be permitted to have his computer in possession for the purpose of conducting his legal work. He also referred to an attached letter sent to him by the prison service headquarters dated 16th May 2000. The response to that application which constitutes the decision under challenge, such as it was, read as follows:

"This RIC form has been sent back to us from the PAS. The new instruction on computers in possession is currently being implemented at HMP Long Lartin and your application will be considered in due course. You will receive an up date in one month's time."

5. It seems that, up until the new instruction, computers had not been allowed in the possession of prisoners at HMP Long Lartin. The instruction referred to in that note - Prison Service Instruction 2001/02 related to access to computers by prisoners for the purpose of conducting legal proceedings. It required an application to be made to the governor using a form numbered IT1. Mr Dhanota was told about this Prison Service Instruction (PSI) by the prison ombudsman in a letter dated 21st February 2001. But the principles for implementing the instruction at high security prisons such as Long Lartin had to be defined. Hence the decision of 16th March 2001 was deferring any substantive decision. A letter from the Prison Service dated 10th April 2001 made it clear that by that date the arrangements were in place at Long Lartin to comply with the new Prison Service Instruction, and that any application under those new procedures would be duly considered.
6. Mr Dhanota complains, first of all, that the decision of 16th March 2001 was unreasonable because he was involved in litigation where he had orders made by courts to do certain things and produce certain documents by given dates. Those arose in various litigations in which he was involved and he says the prison service was well aware of them. Moreover he makes reference to an application by another prisoner where he says that particular application was dealt with in a way which was inconsistent with the decision made in his case.
7. So far as the decision of 16th March 2001 is concerned, to defer a substantive decision until the new Prison Service Instruction had been put in place at Long Lartin does not seem to me to be unreasonable. I can see nothing legally wrong or perverse about that decision. Despite the time pressures on Mr Dhanota to comply with court orders, the prisons dealing with high security prisoners clearly needed to formulate the detailed criteria which were to be applied so as to implement that general Prison Service Instruction within their particular establishments. It made sense therefore to deal with Mr Dhanota's request under the new policy, but in order to do so he needed to make a fresh application setting out the basis on which he asserted that
8. it complied with the new policy. Insofar as the decision of 16th March 2001 could be seen as a refusal of his application of 9th January, again it seems to me there was a reasonable and proper basis for that refusal, namely that a new instruction was being implemented and its principles should be applied.
9. The inconsistency relied upon by Mr Dhanota derives from documents which related to another prisoner at Long Lartin, to whom I shall refer for this purpose simply as B. B applied for permission to obtain access to his legal files held on computer. His application was dated 7th February 2001. The response from the relevant prison governor dated 28th February 2001 was as follows:

"I am content that in accordance with Prison Service Instruction 2001/02 you should have access to a computer. The PSI sets out a scheme whereby prisoners may have computers in their cells and I anticipate that you may qualify for this. I will process your application through the normal channels which involves approaching EDS who supply the computer. I hope that this will not take long, but as you are the first candidate I am not sure. I will provide an up-date in a month."

10. Mr Dhanota argues that that application by prisoner B was approved and that is inconsistent with the apparent holding decision that was made in his case. I do not read the decision being made there in respect of prisoner B's application as being as final and clear cut as Mr Dhanota suggests. The writer of that decision indicates merely that prisoner B may qualify for this computer and that the matter is going to be processed. Clearly, there had been no final decision at that date.
11. What happened after this is that Mr Dhanota did lodge a copy of form IT1 dated 12th April 2001 seeking permission for his computer for legal purposes. The form contains on it in the usual way the ultimate decision. The decision was not to approve the application, the decision being made on 24th April 2001. It seems that that was challenged by Mr Dhanota through the internal prison grievance procedure. He appealed to the Prison Service headquarters in due course by a form dated 7th August 2001. That was rejected by a letter dated 17th September 2001 from the Directorate of High Security Prisons. In that letter it is said:

"The decision in respect of access to a computer under PSI 02/2001 was taken on grounds of security. I understand that you are being assisted in your legal work by your father and therefore he should be able to access the data you refer to and assist you."

12. It might be that Mr Dhanota could seek to amend his claim form to challenge that later decision, and he made some attempt to do so in the court below before Mr Justice Maurice Kay. However there are formidable obstacles in the way of such a procedure. First, the decision of 17th September 2001 post-dates the application before me for permission for judicial review.
13. Secondly, a claim seeking to challenge that later decision has never been served on the proposed defendant and therefore the court does not have the benefit of any response from the defendant indicating on what grounds, if any, it would contest the claim. That puts the court, on a permission application which in a sense this is, at a very considerable disadvantage. Clearly, this is not a matter that should be dealt with by amendment but by a new claim for permission to seek judicial review of that later decision.
14. Thirdly, I am told by Mr Dhanota that there is already such an application for permission to seek judicial review of that more recent decision. It has not yet been heard by the High Court. Clearly, it would be wrong for me to seek to deal with that today when there is a pending application already waiting to be heard by a judge in the Administrative Court as part of the High Court. Mr Dhanota complains that that later application is taking far too long to be listed. I have no detailed information about that, but if what I am told by Mr Dhanota is accurate I think that application should be heard in the Administrative Court without delay.
15. I would add that the reasoning of the letter of 17th September 2001, on the face of it, does not indicate that there would be any strong basis for a successful challenge but that is a matter for another court.
16. I note before leaving this particular application that there is no complaint on the claim form that Mr Dhanota has been denied access to documents which he needed for his litigation. The complaint which is made is about the refusal, as he regards it, to allow him access to a computer in possession. Consequently, I cannot see that this appeal on its merits has any real prospect of success. In those circumstances there is no justification for granting the extension of time which would be necessary in any event.
17. I turn to the other application before me this afternoon which bears the number 2001/1800. In that Mr Dhanota seeks permission to appeal against the decision of His Honour Judge Oliver-Jones QC on 11th April 2001 whereby it was determined that the claimant in those proceedings, Cindy-Lee Lindsay, was entitled to a declaration that a property known as 66 Queniborough Road, Leicester is held by the defendant Mr Dhanota on a resulting trust for her as sole beneficiary. Damages of £2,193.23 plus interest were awarded against the defendant for breach of contract. Again, the appellant's notice was filed out of time on 28th August. I have to consider whether if time were extended there is a real prospect of a successful appeal in this matter.
18. The judge found that by a deed signed by both parties in about April 1993 it was agreed that the property in question would be acquired in the name of C Santos on behalf of Cindy-Lee Lindsay. The deed recorded that Miss Lindsay had contributed £30,000 for the acquisition of the property. It was clear from the document that all of this was with a view to a quick re-sale of the property at, it was hoped, a profit, some of which, indeed the major part of which, was likely to go to Mr Dhanota. The judge also found that the claimant had provided the £30,000 and that Mr Dhanota had thereby acquired the property at Queniborough Road using the name Carlos Santos. The property was not sold subsequently but, according to the judge's findings, had been occupied by relatives of the defendant. On these factors the judge found that there was a resulting trust of the property and he made the declaration to which I have referred.
19. In the course of his judgment he considered submissions made by Mr Dhanota in person during the hearing to the effect that his imprisonment had severely restricted his ability to conduct the proceedings, particularly because he had been denied access to a computer which he needed to retrieve relevant documents. The judge said this about this aspect of the case at page 10 of his judgment:

"Although the defendant has asserted that his imprisonment prevented compliance, it was clear, on close enquiry both on 8th February 2001 and 4th April 2001, that the computer disc allegedly containing documents on which the defendant said he wished to rely, was actually in the custody of his father or `friends' and that other documents were (it was said) in the custody of various named firms of solicitors or the police. The defendant has made no effort whatsoever to obtain these documents. There have been no applications to the court for disclosure by non-parties. I have reached the clear conclusion that the defendant has absolutely no intention of complying with an order of the court in respect of disclosure ..... "

20. The judge subsequently added this at page 13 of his judgment:

"In the long history of this case judges, including myself, have repeatedly exercised their discretion in favour of the defendant so as to give him time to prepare and present the defence he was advancing, notwithstanding repeated breaches of orders, but upon the basis of his assurances that he was able and willing to comply with orders made despite being imprisoned.

There comes a time when this `favour' must cease in the interests of fairness and justice to the claimant and other litigants. That time has come."

21. The judge in saying that no doubt had in mind the fact that the action had begun as far back as 8th August 1996 and had been the subject of numerous orders against the defendant as to disclosure since then.
22. However Mr Dhanota this afternoon contends that it is quite wrong to say that he had not sought to comply with court orders. He emphasises that he had been having great difficulty with the Prison Service in obtaining access to documents and to his computer discs and that this had been the principal reason why he had not been able to comply with the various court orders. He asserts in his grounds of appeal that he did not receive a fair trial, and that his rights under the European Convention on Human Rights have been violated. In that connection he refers again to his inability to access material which he had stored on computer disc. He says consequently there has been a breach of his right to access to justice and a breach of Article 6. He also alleges that he was not treated fairly by the judge at the hearing. He has confirmed orally this afternoon that the computer discs to which he refers are in the possession of his father or friends or brothers but he contends that it would be inappropriate for him to expect them to do his legal work for him, it requiring, he says, a substantial amount of effort to do so.
23. So far as the fairness of the trial is concerned, a point raised in the written grounds of appeal, there is no evidence beyond Mr Dhanota's bare assertion that the judge behaved in any way unfairly towards him. It is right that Mr Dhanota did not have access to his computer in prison. But the judge's point about his ability to use his father or friends to access the computer data seems to me to be a sound one. There was clearly ample time for them to be told how to go about retrieving such data, about any password which would be needed to do so and to print out any material relevant to his litigation. Indeed, they could have submitted material to the County Court on Mr Dhanota's behalf to ensure that he complied with the various court orders.
24. In the circumstances it seems to me that the judge was entitled to conclude that Mr Dhanota had not been prevented from conducting his case properly or from complying with the various court orders. I do not accept that it would have been inappropriate for the father, friend or brothers of this applicant to have assisted him in the way described. I therefore see no prospect of Mr Dhanota establishing that there has been a breach of his rights under the European Convention on Human Rights. It follows that I can see no basis on the merits of this second application on which an extension of time would be justified in order to do justice. In the circumstances both the applications before me this afternoon for permission to appeal are dismissed.
Order: Applications are dismissed. A copy of judgment to be supplied to applicant at public expense