England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
RE: APPLICATION TO APPEAL
FROM THE DECISION OF ETHERTON J

		Royal Courts of Justice The Strand London WC2 Thursday, 21 November 2002

Thursday 21 November 2002

LORD JUSTICE MUMMERY:

1. This is an application for permission to appeal. The application is made by Mr Frederick Poole in person. The application is for permission to appeal against two orders of Etherton J made in proceedings against Mr Poole. The proceedings are brought by Sun Life Assurance Society for repayment of money claimed to be due under a legal charge and possession of the property charged to secure the amount due.
2. On 21 January 2002, Etherton J rejected Mr Poole's application for an adjournment of the trial of the proceedings. The trial then took place on 21 and 22 January, but the judge delayed giving judgment in the hope that it would be possible to compromise the claim. Unfortunately, no compromise was reached.
3. On 1 March 2002, Etherton J gave judgment in the action for the claimant in the sum of £136,500 and interest. He refused permission to appeal.
4. Mr Poole is blind, and has been so since birth. Arrangements were made to overcome that disability in the proceedings by having the judgment of Etherton J and a full transcript of the hearing translated into braille.
5. The background to the case is this. Mr Poole became a Lloyds name in 1982. Unfortunately, he was caught up in the catastrophic losses incurred. He estimates the sum for which he is liable in the region of £3 million.
6. Sun Life comes into this in this wasy. Sun Life gave a guarantee on 20 November 1990 to Lloyds in the sum of £136,500. On the previous day, 19 November 1990, Mr Poole had charged to Sun Life secured liabilities to them, his property at 83a High Street, Landbeach. Part of the property consisted of a first floor maisonette, which had been let. The ground floor of the property is used in connection with Mr Poole's business. He was formerly a practising barrister, but is now involved in carrying on a piano business.
7. As a result of the events at Lloyds, a demand was made by Lloyds to Sun Life for payment under the guarantee. The demand was made on 16 December 1998. Sun Life paid up under the guarantee to Lloyds. On 17 December 1998 a demand was made by Sun Life to Mr Poole in respect of the sum due as a result of having honoured the guarantee. No payment was made by Mr Poole to Sun Life, either by way of capital repayment or interest. It was in those circumstances that on 12 August 1999, Sun Life began these proceedings to enforce its right under the legal charge.
8. One of the main points taken by Mr Poole on this application is that there has not been a fair trial of these proceedings. It is necessary to refer to the procedural steps which led up to final judgment granted in favour of Sun Life by Etherton J.
9. On 14 March 2000, there was a case management conference before Master Bragge. That was continued before Park J on 12 May 2000. Park J refused to adjourn the proceedings until after a decision had been reached in other proceedings in the Commercial Court by Mr Poole and others against Lloyds. Those I shall refer to as the Jaffray proceedings. I shall say more about them in a moment. Park J fixed the date of the trial for these proceedings for 2 November 2000.
10. On 20 October 2000, an application was made without notice to Jacob J. The application was made by Mr Poole. He gave evidence of his poor health. Jacob J vacated the trial date to await the outcome of the trial in the Jaffray proceedings. Another reason for vacating the trial date was Mr Poole's state of health. Sun Life were given liberty to apply in relation to that order. They did apply. Their application was heard by Pumfrey J on 1 November 2000. Sun Life applied to have the order of Jacob J set aside. Mr Poole was too ill to attend that hearing. The judge adjourned the hearing of the trial, which was due to start the following day, and made an order for the medical examination of Mr Poole. He was examined by Doctor Hunt. According to his report, Mr Poole was unfit to attend the trial unrepresented.
11. On 5 April 2001, Etherton J ordered that the money claimed by Sun Life, and various cross-claims made by Mr Poole in the proceedings, should be tried separately. There was no appeal against that order and the trial date was fixed for 22 January 2002.
12. Mr Poole made a written application for the postponement of that trial date. That was dealt with by Lloyd J on 19 December 2001. Mr Poole was unable to attend the hearing. The judge refused the application to defer the trial date until after the appeal in the Jaffray proceedings had concluded. On 3 November 2000 Creswell J had dismissed the Jaffray action. An appeal was then brought, which was not heard until this year.
13. There was no appeal against the Lloyd J judgment. Unfortunately, there is no transcript of the judgment available. There is a note of his judgment made by counsel, though Mr Poole tells me that he does not agree with that note.
14. The matter then came before Etherton J on 21 January 2002, when Mr Poole made another application to adjourn the trial, substantially on the same grounds rejected by Lloyd J a month earlier. I have referred to the Jaffray proceedings. The present state of them is that the Court of Appeal has dismissed the appeal, but there is a petition for leave to appeal to the House of Lords. That petition has not been presented by the United Names Organisation, of which Mr Poole is a member.
15. It seems from what Mr Poole has told me that the members of the United Names Organisation propose to deal with the Court of Appeal judgment differently, having taken some encouragement from the fact that, although the Court of Appeal rejected the charges of fraud, they did find, contrary to the decision of Creswell J, that there had been representations made to various of the claimants. The matter may be taken back to the Commercial Court to deal with possible liability arising in respect of the representations.
16. I will deal first with the application for permission to appeal against Etherton J's refusal to adjourn the trial. The judgment given by Etherton J is contained in the transcript of the hearing of the proceedings on 21 January. As I have already indicated, Mr Poole's application for an adjournment was based substantially on the same grounds that had been rejected by Lloyd J on 19 December, which was not appealed.
17. It appears from Etherton J's judgment that he fully appreciated the difficulties that Mr Poole was in as an unrepresented person with the disability of blindness; but he said he had to do justice to both sides in deciding whether or not to grant the adjournment. In his judgment the Jaffray litigation, was not determinative of the fraud which had been relied upon. The nature of that point was that Mr Poole submitted he should not be liable for what had been paid out by Sun Life under the guarantee, because it had been paid unnecessarily to Lloyds who, it had been contended, were guilty of fraud. It was submitted that Sun Life knew of the alleged fraudulent conduct of Lloyds, so they were not entitled to recover against Mr Poole under the guarantee.
18. The judge was particularly understanding of the difficulties of lack of representation, but, in refusing the adjournment he said that there was no reason to believe that an adjournment of trial would improve Mr Poole's position so far as representation was concerned.
19. In his second judgment, which was given after the evidence and argument had been heard on the merits of the case, the judge returned to the question of Mr Poole's difficulties as an unrepresented blind person. I should refer to that part of his judgment because, as Mr Poole said in his first submission to me today, he relies mainly on this case that there has been no fair trial in order to obtain permission to appeal.
20. The judge dealt with Mr Poole's position in some detail in paragraphs 41 to 46 of his reserved judgment. He said this:

"41. Mr Poole informed me that he had been refused legal aid in the Jaffray case on financial grounds, and that, although that refusal was being contested by solicitors acting on his behalf in that litigation, he had not applied for legal aid in these proceedings since there appeared to be no present prospect of succeeding in any such application. Further, on my enquiry, he informed me that he was not able to take advantage of the Bar's pro bono scheme since he did not satisfy the criteria for that scheme.

42. In the light of those explanations, I directed that enquiries be made of the Official Solicitor as to whether he would be able to assist Mr Poole, and adjourned for a short time to enable those inquiries to be made. The result of those enquiries, made by Sun Life representatives on Mr Poole's behalf, was that the Official Solicitor only acts for persons who are unable, due to legal incapacity, to instruct lawyers on their behalf.

43. In those circumstances, the hearing of the Issues proceeded, with Mr Poole conducting his own Defence and Counterclaim. He is plainly a person of considerable intelligence and some legal knowledge. He conducted his case with great courtesy. He was accompanied for part of the hearing by another person. Although he addressed me at some length about the factual background to the issues in the case, he did not feel able to draw my attention to any specific documents or to comment upon the law.

44. In order to assist me, Mr Dutton readily and conscientiously advanced such arguments as could properly and reasonably be made in opposition to Sun Life's own case.

45. While I am in left no doubt at all that the Claimant should succeed on the Issues, for the reasons that I give later in this judgment, I was left with a sense of unease that Mr Poole did not have the support and resources that his disability required in order to enable him to participate more fully in the hearing."

21. The judge then referred to the fact that, at the conclusion of the hearing, he had been invited by both parties to adjourn his judgment until after 15 February, on the basis that there might be a reasonable prospect of settlement. As he said, sadly the parties have been unable to agree.
22. Then, turning to the merits of the case which the judge considered in detail in his judgment of 1 March, he summarized in paragraph 48 of his judgment the six defences set out in the defence and cross-claims put in by Mr Poole. The judge proceeded with the rest of his judgment to explain why, in his judgment, none of those defences constituted a good defence to the enforcement of Sun Life's claims under the legal charge.
23. The defences in brief were these: first, the fraud exception. The defence was that Sun Life had acknowledged the fraud at Lloyds from the documents that had been made available to it. This defence was relied upon, that Sun Life ought not to have met the demand made upon it. It followed that Sun Life had no right to recoup the money paid out of the guarantee of Mr Poole.
24. Secondly, Sun Life ought not to have paid out Lloyds under the guarantee, since Lloyds had not provided Sun Life with a certificate under the guarantee.
25. Thirdly, there had been non-disclosure of the material matters, and a breach of statutory duty under section 47 of the Financial Services Act 1986.
26. Fourthly, Sun Life had been guilty of disability discrimination, contrary to section 24 of the Disability Discrimination Act 1995. Then it was said that there had been misrepresentations made to Mr Poole by a firm of financial advisors, who had advised him to enter into the guarantee on which the claim against him was made. Those were the main defences on the merits. The judge rejected all of them.
27. As regards the fraud exception, he held that it did not avail Mr Poole as a defence. The question in the case before him was whether Sun Life had knowledge of the fraud. He said that, in his view, the documents which had been put before Sun Life only contained allegations. There was nothing to establish that there had been knowledge by Sun Life of any fraud.
28. He rejected the argument about the absence of a certificate under the guarantee as being misconceived. He held that the allegations of non-disclosure and breach of statutory duty were ruled out by the decision of this court in the Norwich Union Life Insurance Co Ltd v Qureshi [1999] 2 All ER 707. On the question of disability discrimination, he held that was also misconceived. The allegation was that there had been discrimination by Sun Life in that they had entered into arrangements with other persons, who were in a similar position to Mr Poole, but had treated those other persons more favourably than they had treated Mr Poole. The judge said that the section relied upon by Mr Poole, was dependant on bringing the case within section 22. Section 22 of the 1995 Act is concerned with discrimination in relation to premises in which that form of discrimination was not applicable to proceedings taken to enforce a charge over the premises.
29. The judge also rejected the defence based on misrepresentation. He held that, if there were any misrepresentations by, for instance, Grimston Scott, Sun Life were not liable for them. Grimston Scott had been advising Mr Poole as their principal. They were not agents of Sun Life and, therefore, Sun Life were not liable for anything that they had said to Mr Poole in respect of entering into the guarantee.
30. Mr Poole wishes to appeal against both of those judgments. He has very made a large number of points, both in the written submissions and in his oral submissions this afternoon. The hearing lasted for just under an hour. He pointed out that he had received medical advice that he was not fit to represent himself. As already indicated in the judgment of Etherton J, he had not been able to obtain representation from any source. He said in written submissions that, if these proceedings were stayed until after the final conclusion of the Jaffray proceedings, he would hope to have funds to satisfy any claim against him. The benefits of waiting for the outcome of the Jaffray litigation should be taken into account in deciding whether or not to stay these proceedings in the meantime.
31. He made specific complaints about the way the case had been conducted at the trial. He said documents had only been provided to him a few days before the trial started. They had not been translated into braille. He had not been supplied with copies of the documents to assist him.
32. In relation to the discrimination point, he said that it had not been adequately gone into. The court had failed to appreciate the disadvantages that he was under. It was, he said, an unsatisfactory hearing. So unsatisfactory, as to result in an unfair trial.
33. Mr Poole developed these points starting with the undoubted position that the other side had counsel and solicitors and he had neither. This, no doubt, gave raise to the unease which the judge had expressed in his judgment during the course of the hearing. The judge himself said that he hoped the matter could be settled, that it was in the interests of everyone, but no settlement had has been achieved. Mr Poole blamed this on Sun Life, saying they had failed to negotiate, when he was still willing to discuss the situation and find a way out of it. He claimed that he has been sought out as a victim in relation to this claim, and that he has been dealt with, with a degree of harshness and (he thinks) vindictiveness.
34. He says that it was never contemplated by Sun Life or by him on the guarantee that there would be such a total draw-down upon it. He repeated that he has tried to discuss these things with Sun Life, but it has not led to any acceptable arrangement. He says that all this has had a terrible effect upon his health. He mentioned that he is suffering from vertigo and blood pressure. He referred to the medical examination he had as being, unexpectedly from his point of view, a psychiatric one and not one on which he thought the judge had ordered.
35. He also referred me to what had happened in another set of proceedings about the stay. He says that Jack J in proceedings in NatWest Bank v Thomas Everard resulted in a stay by the judge until the proceedings against Lloyds had been terminated. He referred, in particular, to a copy of a letter supplied to the court by Mr Thomas Everard to Denton Wilde Sapte on 11 November this year.
36. Overall Mr Poole said these proceedings have been devastating to him and to his business. He said that, as far as the property is concerned, there is plenty of equity in it. He estimates it is worth about £250,000. The charges are for £136,500 plus interest and, alarmingly, the costs which have been added to that, are estimated at over £200,000. He accused the representatives of Sun Life as building up the costs in an unjustifiable manner.
37. I asked him what the present state of play was in the proceedings against Lloyds, the Jaffray proceedings and he updated me in the manner which I have already mentioned.
38. Those are the main points that have been made by Mr Poole. I have to decide whether he has a real prospect of success in these two appeals. Taking the first appeal, that is against the refusal of the adjournment to the trial, I am fully aware, as Etherton J, and other judges who have heard this matter, of the disadvantages of a person, such as Mr Poole, having to represent himself, but I have concluded that there is no real prospect of this appeal succeeding against a refusal for an adjournment. The judge has a discretion whether or not to adjourn the hearing. This court would only interfere with exercise of a case management discretion if it can be shown that the decision by the judge was plainly wrong, and that it had been reached, for example, by not taking account of relevant matters or leaving out of account matters that were relevant.
39. The judge went into the matter in detail. He concluded that the application that had been put before him was substantially on the same grounds as the one which had been put before Lloyd J and had been rejected and had not been appealed. He did not base his decision simply on that though. He looked at the overall picture and came to the conclusion that there was no real prospect of an adjournment changing Mr Poole's position so far as representation is concerned.
40. I should at this point deal with the complaint which has been made by the alleged discrimination. Mr Poole has in his latest documents to the court added a new allegation of discrimination over and above that made against Sun Life in the way that it settled proceedings with other persons whom he says are in a comparable position to him. The new allegation of discrimination is against the court itself. It is said that the court is a provider of services, subject to the Disability Discrimination Act, and that the court has not fulfilled its obligations in making reasonable adjustments to him accordance with the duty imposed by that Act. He pointed particularly to the fact that not all the documents in the case had been translated into braille. He also suffered from disadvantages of not having a competent sighted legal representative to assist him.
41. In my judgment, there is no substance in this allegation of discrimination, anymore than there was any substance in the allegation of discrimination against Sun Life. So far as the court is concerned, it appears from correspondence between Mr Poole and the Civil Appeals Office that he has been supplied with braille translations of the relevant court documents. Those which are relevant to the appeal are, first, the judgments by Etherton J, and, secondly, the full transcript of the hearing. They have been supplied to Mr Poole, and he has expressed gratitude for the provision of them. The court itself is under no legal duty to provide representation or to provide assistance in the form of a competent sighted reader.
42. Etherton J went out of his way to explore every possibility of securing representation for Mr Poole before the matter proceeded to trial on the merits. I have read out the relevant passage referring to his efforts about securing help from the official solicitor, the Bar pro bono Unit and Citizen Advice Bureau. The availability of legal aid is also discussed.
43. I am at a loss to see what more could have been done by the judge, or by the court office, or by the court service to give assistance to Mr Poole. I would, therefore, reject as misconceived the allegations that he is the victim of disability discrimination as a result of the way the court has handled his case.
44. So far as the allegation of disability discrimination against Sun Life is concerned, I agree with the judge that the provisions contained in section 22 and 24 of the 1995 Act simply do not apply to the proceedings of this kind. As to the allegations that there has been discrimination by Sun Life in the handling or settling of claims against other persons, which are alleged to be more favourable than the treatment of Mr Poole, I have seen no evidence to substantiate that. In a case of this kind the circumstances of the individuals are bound to differ from case to case and a great deal will turn on what parties are able to negotiate in settlement of the claim.
45. Mr Poole has not addressed me this afternoon on the merits of his defences, but I have nevertheless considered those when reading the papers before the hearing. I have taken into account all the points which he has made both at the hearing and in the various documents submitted. In my judgment, the judge was right to conclude that Sun Life is entitled to judgment. I agree with the reasons which he gave under each of the possible defences. There is no defence available. That applies in relation to fraud exception, the point taken on the certificate, the allegation of non disclosure and breach of statutory duty under the 1986 Financial Services Act, the allegations of discrimination, which I have particularly referred to, and to the allegations of misrepresentations by, for instance, Grimston Scott. The judge was clearly right in granting judgment to Sun Life.
46. In those circumstances, though I know Mr Poole will be disappointed to hear this, I have come to the conclusion that there is no real prospect of him succeeding on an appeal against either of these judgments.
47. It is an unfortunate situation. I hope that the prospects of settling the case have not completely faded. The position is, in my view, quite briefly this: this is a perfectly straightforward claim. Payment was made under a guarantee. That gave rise to liability to enforcement of a legal charge on the property. The circumstances overall maybe regarded as serious for anybody, particularly serious for a person in Mr Poole's position, because of his disability. The application has to be decided in accordance with the law, and not in accordance with what sympathies the court may have with the position of a litigant. I am quite clear that, as a matter of law, Mr Poole had a fair trial and the judge clearly reached the right result on the liabilities of Mr Poole to Sun Life.
48. For those reasons, the applications for permission to appeal against both judgments are refused.
49. I am sorry Mr Poole. That is the best consideration I can give to your case.
50. MR POOLE: My Lord, I believe I am now left with a human right's issue, and that it is possible for me to apply under the heading of human rights and that I can ask for leave to appeal, I think it is under Schedule 6 of the Convention of Human Rights. I think this is a situation I have experienced which should not have been allowed to arise, and if it did arise there ought to be some way of dealing with it. If this court is not able to deal with it in its ambit, well if there is any possibility of me going elsewhere, well then I believe that I should do that.
51. MR JUSTICE MUMMERY: That is a matter for you. The legal position is that there is no further avenue of appeal in the courts of this country. As I have refused permission to appeal there is no right of appeal against that decision to the House of Lords. What other avenues you have of taking it to the Court in Strasbourg is not a matter for me. There is nothing I can do about that. You do not require any permission from me. If it is your view that the law of this country has failed to comply with the Convention on Human Rights, then the Strasbourg Court is the place for you to take your case. You do not require any order from me to entitle you to do that.
52. MR POOLE: I understood that it was not essential but I should go through the procedure of requesting it. I am left with the belief that had I either in these case management conferences and/or before Etherton J had the assistance of counsel, at least as adept as Mr Dutton, the decision would have been very different because issues on which my Lord you agree with Etherton J were skimmed over, not dealt with as skilled counsel would have done, and as I was quite incapable of doing with them. So I am left with a deep feeling of injustice.
53. MR JUSTICE MUMMERY: I know you have that feeling, but for the reasons I have already explained, my view is that the outcome of the case would have been the same, whether you were represented or not.
ORDER OF THE COURT: Application dismissed.