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 UXBRIDGE COUNTY COURT
(HIS HONOUR JUDGE MACKINTYRE)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 14 February 2002

1. LORD JUSTICE TUCKEY: This is a renewed application by Mrs Rezvi for permission to appeal from a decision of His Honour Judge MackIntyre, given on 24 August 2001 in the Uxbridge County Court, when he dismissed an appeal from an earlier decision of a district judge. Mrs Rezvi does not speak English and I have allowed her son, who is a solicitor, to speak on her behalf although he does not have rights of audience in this court. He has acted as his mother's solicitor in these proceedings and it is clear that he is the moving force behind the present application.
2. I refused permission on paper. Yesterday I received an application from Mr Rezvi to recuse myself because I had expressed a view about the merits of the application on paper. The predictable points about Article 6 and apparent unfairness or bias were raised in perfectly reasonable terms in the short skeleton argument which Mr Rezvi submitted in support of that application. I have refused to recuse myself for reasons which I should state shortly because it is a point which is often raised in this court.
3. The right to a renewed hearing oral hearing is now contained in CPR 52.3(4) which says:

"Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing."

4. The practice direction, CPR 52PD at paragraph 4.13, states that:

"If permission is refused without a hearing the parties will be notified of that decision with the reasons for it. The decision is subject to the appellant's right to have it reconsidered at an oral hearing. This may be before the same judge."

5. Therefore, the reconsideration contemplated by the rule may be (and in this court is often is) a reconsideration by the same judge. Reconsideration means what it says.
6. The point taken by Mr Rezvi was considered by this court in the case of Khreino v Khreino [2000] 1 FCR 75. That was a family case where the single Lord Justice had directed that any oral renewal of the application for permission should be heard by a court of two, of which he was to be a member. Objection was taken to him being a member of the court (as Mr Rezvi would have objected to my being a member were his application to have been considered today by two Lords Justices). Thorpe LJ, delivering the leading judgment, said:

"The manifest intention of the practice direction is to enable applications for permission to be dealt with by a single judge of the court on paper in much the same way as the application for permission is dealt with by the trial judge on paper. It is important that the single Lord Justice should have a profound understanding of the case and of the arguments advanced in support of the application for permission. To ensure that he receives such papers as would be conventionally before the court at an oral hearing under the former practice he also now has the advantage of a full skeleton argument supporting the application for permission. Therefore his refusal on paper is a considered and reasoned refusal after full consideration of all relevant material, including the applicant's detailed submissions. In the majority of cases it is intended to be the end of the application for permission unless the single Lord Justice has fallen into manifest error or unless there has been some unexpected subsequent development. So it seems to me that the right to require a subsequent oral hearing has a real purpose and function in the minority of cases. Of course the importance that we attach to oral argument has always been a distinguishing characteristic of our forensic system. But ordinarily there must be more than that to justify renewal. Perhaps on further consideration the advocate has perceived a submission not previously advanced. There might also be circumstances in which subsequent to the signing of the provisional refusal there was some unexpected development in relation to the appeal or some development of the relevant precedent law."

7. Mummery LJ, agreeing with Thorpe LJ, said:

"The course taken could not possibly be regarded as a breach of Article 6 of the European Convention on Human Rights. The first sentence of that Article provides:

'In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

The procedure laid down is that applications for permission to appeal are made ex parte and they are considered on paper. The rules require that, in support of the application for permission to appeal, the party seeking to appeal will submit a skeleton argument. That sets out all the points which he would wish to pursue on the appeal. The single Lord Justice who considers it is able to form a view whether or not the appeal on those grounds has a real prospect of success. There has therefore been a fair hearing, within a reasonable time of an ex parte application. That hearing was before an independent and impartial tribunal. An oral hearing was requested. This oral hearing is in public. There is no breach of any common law principle of procedural fairness which, like Article 6, requires that a hearing takes place before an unbiased tribunal or court. There is no requirement that every application shall receive an oral hearing. It is appropriate that an ex parte application for permission to appeal should be considered initially as a paper application. Mr Turner [counsel making the application] says that if the Lord Justice who has indicated that he is minded to refuse and gives reasons for it sits on the oral hearing that renders the oral hearing pointless, because it is taking place before a judge who has already made up his mind. That is a misunderstanding of the procedure. The Lord Justice who has indicated that he is minded to refuse leave to appeal is obliged to consider the matter at the oral hearing in the light of any further points. The oral hearing is not an appeal from an earlier decision. These points may range from updating the court on matters which have occurred since the application was considered in July; drawing the court's attention to new authorities which had not been discovered at the time of submitting the skeleton argument or had not been decided and reported at that time. The oral hearing also provides an occasion for dealing with errors and omissions in the reasons stated in the minded to refuse letter. The oral hearing is not pointless.

I agree with my Lord as to the circumstances in which an application for an oral hearing is conducted after the matter has been fully considered on a paper application. Mr Turner's objection to the propriety or validity of the constitution of this court should be rejected."

8. I entirely agree with the judgments in that case. At that time, as the judgment makes clear, the practice was for the single Lord Justice to say that he was minded to refuse permission. This is no longer the case. Permission is actually refused on paper. So, the court's role is truly confined to a reconsideration of that decision where it will consider the points referred to by the judges in Khreino. Litigants, who simply repeat what they have said before, cannot realistically expect to succeed.
9. I have dealt with this point in a little detail since it seems to me that this court should make it clear that what it said in Khreino still applies to applications for reconsideration under the new regime.
10. I turn to the substance of the application. The applicant claimed damages for personal injuries against her employers, Air Canada, resulting from two accidents at work in April 1993. Her trade union, the Transport and General Workers Union, instructed solicitors, Iliffes Booth Bennett ("IBB"), to act for her in the proceedings. However, in March 1999 they successfully applied to come off the record because of a breakdown of the relationship between solicitor and client. From 19 May 1999 Mr Rezvi has acted for her. On 24 August 2000 her claim was settled by consent for £65,000 and costs to be paid by the defendants on a standard basis to be subject to detailed assessment if not agreed.
11. On 22 January 2001 Mr Rezvi applied for detailed assessment of his costs against the defendants. His bill claims about £60,000. There can be no doubt that it will be vigorously contested. However IBB had also said that they wished to claim their costs for the period in which they were acting. Such a claim could only be made if the applicant had a liability for their costs as would normally be the case where solicitors were acting for a member on the instructions of her Union. Such a liability had been asserted by IBB in a letter to the applicant in November 2000. Mr Rezvi disputes that liability saying that IBB were only ever acting for the Union and so his mother had no liability for IBB's costs.
12. In these circumstances, as well as applying for a detailed assessment of his own costs, Mr Rezvi sensibly applied at the same time (22 January 2001) for an extension of time to apply for a detailed assessment of IBB's costs against the defendants. He asked for an extension of three months from the date on which the applicant was found liable (if she was) for IBB's costs.
13. The order which has given rise to these appeals, was made by District Judge Banks on 30 April 2001 in the absence of the parties. That is standard procedure by district judges who have heavy case management responsibilities. District Judge Banks ordered that the detailed assessment of Mr Rezvi's bill was to be listed for a directions hearing with a time estimate of 30 minutes before him. The second paragraph of his order which has given rise to all the controversy said that:

"The claimant's current solicitors, S Zafar A Rezvi and former solicitors, Iliffes Booth Bennett are to attend the said directions hearing along with the Defendant's Solicitors Berrymans Lace Mawer."

14. Mr Rezvi objected, and continues to object, to this order on a plethora of grounds. The papers are full of letters and skeletons arguments. Yesterday he faxed a 29-page skeleton argument, running to 127 paragraphs, which I have read. Essentially he says that the district judge had no right or jurisdiction to order IBB to attend the directions hearing and that he acted unfairly in doing so; that is to say without giving the applicant any opportunity to object to the course he proposed. The court, he says, was only concerned with the detailed assessment of his bill and the application for an extension of time and IBB had no locus to be heard on either of these applications. If they were involved in the assessment proceedings, this might result in privileged information being provided to them. They had no locus on the assessment of Mr Rezvi's bill and no locus in relation to their own costs unless and until the court had determined that the applicant had some liability for them. Furthermore, Mr Rezvi submits that they had a conflict of interest in the sense that they were obviously the Union's solicitors and could not be expected to be acting in the best interests of the applicant.
15. I have summarised Mr Rezvi's arguments which he supports by reference to the Human Rights Convention the detailed provisions of the CPR and a certain amount of authority. But, at the end of the day, try as I have, I cannot see what possible harm this order can have caused the applicant. I am left with the clear impression that Mr Rezvi is pursuing this point simply for its own sake. Much of the material which has been produced by Mr Rezvi shows a very good grasp of the law and his submissions to me have been presented clearly and courteously. But, as I have pointed out, he has a total inability to see the wood from the trees.
16. The district judge obviously did have jurisdiction to take make the order he did. He was faced with the prospect that at some time in the future he might have to embark upon a second detailed assessment of costs in this case where the applicant had said that she had no liability for IBB's costs. He was surely entitled to discover what IBB's position was at a directions hearing where the applicant would be represented and there to hear it, and where, if IBB were claiming costs, he could sort out how liability was to be determined for them and how any subsequent detailed assessment should proceed. At such a directions hearing, there was no prospect of the applicant's privilege being invaded. If there was objection to the assessments being heard together, the district judge could have dealt with them consecutively.
17. In my judgment, the district judge was perfectly entitled to make the sensible order he did under the wide case management powers which he had.
18. By the time this appeal came before the judge in August, IBB had made their position clear. In a letter to Mr Rezvi of 15 August 2001, they said:

"In an effort to bring this matter to a close, the Transport & General Workers' Union have instructed us that they do not intend to pursue their costs in relation to the conduct of the action prior to the termination of our retainer.

The decision has been made on a purely commercial basis ...

The above being the case, assuming you have already filed your Bill of Costs, it is our view that it is unnecessary for you to seek an extension of time for service of our Bill of Costs."

19. There was, therefore, from that moment no question of IBB being involved in any detailed assessment of their costs and no need for them to attend any directions hearing. The judge was apprised of this new situation by Mr Rezvi and listened fairly and patiently, it seems to me, to the points which Mr Rezvi made, which did not include many of the points which are now set out in the skeleton to which I have referred. He concluded the hearing by saying:

"I do not see anything wrong with the order the district judge made on 27 April. And I suggest that you send in to him the letter of 15 August from IBB to you, and ask him to consider whether .... he still wishes IBB to attend the directions hearing."

20. That was an eminently sensible suggestion. If Mr Rezvi had taken it up, I have no doubt that the district judge would not have required IBB to attend before him. However, Mr Rezvi did not take it up. In refusing permission I said:

"As a matter of common sense the district judge should be invited to make further directions in the light of IBB's letter of 15 August which can probably be done in writing and will avoid further entirely unnecessary correspondence, court attendance and consequent costs for the applicant."

21. That suggestion has not been taken up either and I am now faced with this mountainous submission.
22. Mr Rezvi urges me not to look at the matter from the point of view of commonsense, but to look at it from a strictly legal and analytical point of view. He says that there is some practical purpose in this appeal because the judge ought to have ordered the defendants to pay the costs of the appeal to the judge, because they could, and should, have consented at the earliest stage to his application for an extension of time.
23. Quite apart from the fact that it does not appear from the transcript that Mr Rezvi actually asked the judge to order the defendants to pay the costs, I can see no conceivable basis upon which he could have done so. They did not attend. Their attitude had throughout been that set out in their letter of 26 January 2001 when the matter was first raised with them where they said:

"May we respectfully suggest that you liaise directly with [IBB] with regard to their own claim for costs in this matter. It would appear from your letter ... that there is some form of dispute between your client and her previous solicitors. We have no wish to become involved in any such dispute which is essentially a matter between your client and her previous solicitors."

24. That seem to me a perfectly reasonable line to take. The judge could not have ordered them to pay the costs of the applicant's appeal from the district judge's order requiring IBB to attend before him. Nor can I see any other grounds for criticising the judge's order. He dismissed the appeal because he said that the district judge was entitled to make the order which he did. I have already expressed my view that he was entitled to do so.
25. This is a second appeal to this court. Despite his efforts, Mr Rezvi has not persuaded me that the case raises any important point of principle or practice. It follows that permission to appeal must be refused.
Order: Permission to appeal refused.