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 THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Levy QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 20th February 2002

Wednesday, 20th February 2002

1. LORD JUSTICE BROOKE: There is before the court an application by the claimant, Mrs Malik Roshdi, for permission to appeal against an order of Judge Levy QC at the Central London County Court on 14th February 2000, the day fixed for the trial of the action, whereby he refused her application for an adjournment of the trial. This application was made by the claimant in person shortly after her solicitors had obtained an order from the same judge pursuant to CPR 42.3(1) declaring that they had ceased to act for her as her solicitor.
2. On 31st July 2001 Hale LJ directed that Mrs Roshdi's application for permission to appeal be adjourned to be heard on notice to the respondents with the appeal to follow if permission was granted. During the course of the hearing before us today we granted permission to appeal. This therefore is the decision on the appeal itself.
3. This action was commenced in January 1999. The claimant was claiming damages for personal injury arising from an accident at Paddington Station on 5th June 1996. She said in her particulars of claim she was engaged in a discussion with the conductor of a train who had required her to leave the train because she did not have a ticket. She complained that while she was disembarking, the train's engine was suddenly "revved up" and the train moved in such a way that she was startled and thrown off balance. She pleaded that Railtrack, the second defendants, were negligent because they allowed a horizontal gap to come into existence between the train and the platform in excess of 15 inches and a vertical gap in excess of 14 inches. The defendants denied liability and pleaded contributory negligence. The claimant had the benefit of a legal aid certificate. The trial was originally fixed to start under the Central London County Court listing arrangements on 15th December 1999.
4. The defendants sought further information about certain features of the claim. Originally the claimant said that she did not know which platform was involved in the accident, and that the best way of answering a query as to whereabouts on the platform the claimant met with her alleged accident was to produce photocopies of photographs which illustrated the very significant gap which existed both horizontally and vertically between platforms at Paddington and trains of that type. Some photographs were exhibited to that answer, which appear to have been taken on platforms 9 or 10 at Paddington, giving details of the gap.
5. The defendants persisted with their request for details as to the platform on which the accident happened, and in due course it turned out that the claimant said that the accident happened on platform 14. There was an inspection, which representatives of both sides attended, on 5th August 1999. We have been shown the attendance note taken by the defendants' solicitor on that occasion and some negatives of photographs which were taken, from which it appears that what was being said was that the accident happened on a straight stretch of platform 14. In due course further information was supplied, giving the answer that the accident happened at the same position approximately to where the inspection photographs were taken, and that the dimensions of the gap were 10 inches vertical and four inches horizontal. Mrs Roshdi supported that answer, saying that these facts were true to the best of her knowledge, information and belief.
6. On 24th August 1999, nearly three weeks after the inspection, Deputy District Judge Ostroff gave case management directions. He vacated the original trial date and set a new timetable running up to a trial on the first open date after 24th January 2000. He assessed the defendants' costs at £750 and directed that the claimant should pay them, his order not to be enforced save by way of set-off against any award of costs or damages the claimant might be awarded or by leave of the court. It appears that the claimant had been resisting the orders the defendants were seeking which related to the disclosure of her medical records.
7. On 23rd September 1999 her legal aid certificate was changed to show a new firm of solicitors acting for the claimant. Shortly before that, on 20th September, the parties were notified of the new trial date of 14th-15th February 2000, so that they now had nearly five months to complete the preparation of their evidence for trial.
8. On 3rd February 2000 District Judge Lightman gave further case management directions, only eleven days before the two-day trial was due to start. He directed that the trial should now be as to liability only, extended the time for service of the claimant's medical evidence, and once again awarded the defendants their costs of the application, assessed at over £1,200 on this occasion, on the same basis as before.
9. The claimant's legal aid certificate was originally issued on 28th October 1997, and its scope was extended on 1st December 1998. A week before the trial started its scope was still limited to "all steps up to and including mutual exchange of statements and reports and Part 35 questioning of experts and thereafter obtaining of counsel's opinion". There was also a costs limitation of £5,000, and the claimant's solicitors would have needed authority to incur further costs if they were to continue to act through a two-day trial.
10. On Thursday 10th February the claimant attended her first and only conference with counsel. At about 2 p.m. on 11th February her solicitors notified the Legal Aid Board of counsel's unfavourable opinion on the merits, while formally applying for the amendment of the certificate to cover the trial on liability and to enlarge the financial limit of the certificate. On the same afternoon the Legal Aid Board orally refused the application to amend the certificate and instructed the solicitors to do no further work under it other than to attend court with counsel on 14th February to explain the position. In formal letters dated 11th February the Board notified the solicitors of their refusal to amend the scope of the certificate, notified them of their right of appeal, and told them it was considering whether the certificate should be discharged in the light of counsel's unfavourable opinion. The Board added in its second letter that the solicitors were not covered to do any further work after receipt of that letter without specific authority from its area office.
11. The solicitors wrote to the defendant's solicitors and to the court at about 4.20 p.m. the same day. They told the former that an embargo had been placed on their client's legal aid certificate preventing them from carrying out any further work, save for attending court on 14th February to explain the position, until such time as a final decision was taken on whether or not to discharge the certificate. They said they would be attending with counsel on Monday but would not be able to present their client's case. They added that their client had indicated to them that if legal aid was removed she would at act as a litigant in person. Mr Ley has told us today that Mrs Roshdi disputes that she ever had a discussion with her solicitors about what might happen if she lost legal aid. In the solicitors' letter to the court they said that an embargo had been placed that afternoon on legal aid and that they therefore could not represent their client.
12. We have been shown correspondence passing between Mrs Roshdi and her solicitors on 10th and 11th February. In her first letter, on 10th February, she took up a point in relation to the preparation of the trial bundle. The solicitors acknowledged that letter the following morning. Later that morning Mrs Roshdi faxed to them a second letter. She raised four different points about the trial bundle and the witness statements that were to be used on her behalf at the trial the following Monday. She also told them that from inquiries she had made that morning, she had learned about a safety management information system run by the second defendants in each of their seven regions, and told them that it would be vital to get this information and "therefore an adjournment is required for the discovery of Railtrack's records".
13. It appears that her solicitor received this message while he was dictating his second letter to her that day, which was sent at 1.38 p.m. He now enclosed counsel's written opinion. This set out counsel's view, which he had expressed the previous evening in conference, that her claim against Thames Trains, the first defendants, had no hope of success, for the reasons now set out in this letter. So far as her claim against Railtrack was concerned, counsel had advised that if the width and height of the gap between the train and the platform had been what was originally stated in the Particulars of Claim (15 inches and 14 inches respectively) Mrs Roshdi would succeed. However, measurements taken by the Health and Safety Executive, who were independent of this dispute, showed that the stepping distance at the point where she boarded and got off the train were within the limits allowed under their guidelines. Even the measurements taken by her former solicitors, Mr Readings (a friend of Mrs Roshdi), and the defendants' solicitors all showed the stepping distances to be acceptable. Mrs Roshdi was told that counsel's opinion was being faxed to the Legal Aid Board and that her solicitors were awaiting their decision.
14. Finally, in a letter sent at 6.24 p.m., after Mrs Roshdi had gone away for the weekend, her solicitors faxed her a third letter. They dealt with each of the points she had raised in her letter, and told her why they thought that evidence from the safety management information system would not help. Finally they said:

"I note you request an adjournment. I suspect the court would be very unhappy about that, and may indeed refuse to grant it. We will await the decision of the Legal Aid Board as to your certificate."

15. This letter contained no reference to the embargo on further expenditure, or to the fact that the legal aid certificate did not permit the solicitors to represent her at the trial on Monday, since the extension of its scope had been refused that afternoon.
16. It was in these circumstances that the solicitors applied by counsel on the Monday morning for an order under CPR 42.3(1). In his short ruling the judge said that he had given the claimant the opportunity to consider whether she wished to oppose the order made. From what she had told him, she was not at all happy with her solicitors, and she did not want them to have the conduct of the case thereafter. The judge said he thought in those circumstances that she was willing for the order to be made. He recorded that the claimant was reserving her right as against her solicitors, insofar as she had a claim against them, to bring up in that claim anything which happened because the application under CPR 42.3 was made at that very late stage. He therefore made the order requested. There is no appeal against that order.
17. He then had to consider whether he should grant the adjournment of the trial sought by the claimant, now acting in person. The reason for seeking the adjournment, he said at the start of his judgment, was that she needed time to obtain further evidence. The judge said that it had come as a great shock to her that she was in the predicament in which she now found herself, namely that the solicitors had left her and she had to run the case herself that day. It is clear that part of her reason for seeking an adjournment was that she did not feel herself in any position to present her case on her behalf that day, having unexpectedly lost the services of her legal advisers.
18. On the application for the adjournment, the judge also allowed her former counsel to address the court as a friend of the court. The defendants opposed the application for the adjournment on three main grounds:

(1) This was a trial on liability only, five witnesses had come to court to give evidence on the defendant's behalf and the incident occurred as long ago as 1996.

(2) A joint statement by the parties' medical experts recorded that the incident exacerbated a previous injury to the claimant's right knee. The earlier clinical notes did not suggest a serious injury, and her knee had improved significantly in the first four months, such that the two surgeons expected it would have returned to its pre-injury level by then.

(3) Because this was therefore a relatively small claim for damages and personal injury, there would be nothing left for the claimant at the end of the day if the trial were adjourned now at her expense, as the cost of the adjournment would be likely to be significant.

19. The parties were in dispute as to whether there was also a claim for what the judge called psychological loss.
20. The judge refused the application for an adjournment in these terms:

"It is always desirable that a claimant who is in person should have an adjournment so that he or she can better present his or her case, but, in the circumstances of this case, where the witnesses, from whom statements have been taken, are all in court, where what I have to decide are the rights and wrongs of what took place on a day in June 1996, and where the claimant has had the advantage of professional help in preparing the case, including her witness statement and the evidence which she wishes to adduce on the events of that day, it seems to me on balance, bearing in mind the overriding principle of the new reforms, the interests of justice are for the trial continuing today after an adjournment which will enable the claimant better to prepare herself for the hearing.

Two days have been allowed for this issue, and therefore if there is a short adjournment for the claimant to prepare herself for presenting the case herself I am sure that Mr. Campbell will give her every assistance, as far as he properly can once Mr. Riverland has left the court, and the case can therefore properly proceed later on today."

21. It appears that the judge then adjourned the start of the trial until 2 o'clock. He then heard the claimant give her evidence, and we have read the later judgment that the judge gave that day after he had acceded to the submission by the defendants that there was no case to answer after he had heard the claimant give her evidence.
22. At page 9 of the transcript of his later judgment he said:

"I am sure the claimant has been trying her best to help me, but given the great difference between what she told the doctors contemporaneously and what she put in her witness statement and has told me today, I have come to the conclusion, with reluctance, that the claimant is not a reliable witness of fact. I am satisfied that her knee did not go through the gap as she alleges in her particulars of claim and as she has told me in evidence. It seems to me that the necessary evidential basis for her claim is lacking and it is therefore appropriate to dismiss it at this stage."

23. The following day Mrs Roshdi raised a question with her now former solicitors about the status of the joint experts' report to which the judge had referred when refusing an adjournment. Her solicitors sent her a letter dated 15th February to the effect that when she had been discussing the trial bundles with her opposite number she had been told that the defendants wanted to place before the court during the liability trial the reports of Mr Hay and Mr Magnussen, who were the joint two experts. As the trial bundles had already been prepared, she was told that the defendant's solicitors would just produce them at court with additional documents. She asked if they wanted to use the joint statement as well. She was told that they did not. This evidence is wholly understandable in the context of the preparation of a trial on liability when the defendants wanted to rely on matters describing what the claimant had said to the various doctors from time to time about the way the accident had happened. On the other hand, I can see nothing in any discussion between the solicitors which precluded the defendants' solicitors from relying on what was contained in the joint statement when they were resisting the application for the adjournment which was made that morning before the trial started.
24. This application for permission to appeal was lodged with the Court of Appeal before the new CPR appeals regime came into force in May 2000. Accordingly, there was no obligation under the rules for the claimant to serve the notice of appeal on the defendants. It appears that the first the defendants knew that there was an appeal pending was on 12th January 2001, when they were given notice that she had been given legal aid to pursue an application for permission to appeal and that a third firm of solicitors now acted for her. We have been told by Mr Campbell that when the defendants received this notice, nearly 11 months after the trial was all over, they found that they were unable to locate all the documents which had been in their possession at the time of the trial.
25. Nigel Ley, who appears for the claimant and who has argued her case vigorously and very clearly, submits that it was completely unfair for the judge to refuse the adjournment given that his client suddenly found herself bereft of the assistance of her solicitors and found herself in a position when she was having, as a lay person, to present her case herself, having been given no prior notice that this might happen. He said that it seemed wrong that she should have been left in this position. He said that there had been other cases in which the court had considered a situation of this kind; but he accepted that all these cases turned on their own facts. In those circumstances he did not wish the court to refer to any other specific authority.
26. Judge Levy was handling the matter under the new CPR regime. He had power under CPR 3.1(2)(b) to adjourn the hearing, and, of course, in exercising his discretion, he had to take into account the overriding objective set out in CPR 1.1. Mr Campbell, who appears for the defendants, has also drawn our attention to the Practice Direction to CPR Part 29 and in particular paragraph 7.4, which identifies the importance of keeping a trial date. He said that although this was in form a multi-track claim, in substance it was now either a fast-track claim or a claim in the small-track because of the small amount of damages Mrs Roshdi was realistically likely to receive in the light of the joint experts' report. In that context he also showed us the Practice Direction to CPR Part 28 and paragraph 5.4, which again stresses the primacy of the trial date; and he pointed out that the trial date had already been adjourned once, and that his witnesses had all turned up for the trial.
27. Mr Ley submitted that the judge failed to take sufficiently into consideration the fact that Mrs Roshdi had been suddenly left in the lurch. Mr Campbell, on the other hand, submitted that it was impossible for this court to form a clear view as to what happened. It was clear that counsel had given adverse oral advice on the Thursday - this appeared from one of the letters Mrs Roshdi had received from her solicitors the following day - and he also reminded us that in the letter written to his solicitors on the Friday Mrs Roshdi's former solicitors had told them that Mrs Roshdi was ready to act in person if her legal aid was taken away.
28. Mr Ley argued that the judge should not have been influenced to the extent that he was by costs considerations. In this context it is clear that the judge took into account that costs orders totalling £2,000 had already been made against Mrs Roshdi which she would have to have deducted from any damages she received, and that if she had to pay the costs of the adjournment any amount of damages she recovered for a comparatively small injury to her knee would be swallowed up in the adverse costs orders she would have to pay before the trial ever started.
29. Mr Ley answered that submission in two ways. He submitted that the judge ought to have formed the view that Mrs Roshdi had been let down by her solicitors to such an extent that it was likely that the court would make a wasted costs order against them, so that he should not have been overly influenced by the fact that she might have to pay the costs of the adjournment. He also argued, relying on a decision of this court in Dodd v Chief Constable of Cheshire (CAT 24th November 1998) that the judge should not have taken cost benefit considerations of this kind into account at all, or at any rate to the extent that he did.
30. Dealing with the second matter first, it is clear that in the case of Dodd the facts were quite different; and, after reading the judgment of Cazalet J, it is quite clear that towards the end of the judgment Cazalet J pointed out features of that case which meant that an order by a District Judge striking out a claim, and in effect dismissing it without permitting it to go to trial, was unjustified because there were considerations which the District Judge had overlooked. As I have said, these cases almost always turn on their own facts.
31. So far as the first matter is concerned, it was by no means evident to the judge on the Monday that the claimant's solicitors would necessarily have to pay a wasted costs order if the matter was enquired into. We do not know, and the judge did not know, the circumstances in which everything was left so late; and it may be that the solicitors, if charged with a wasted costs order, would have brought evidence before them shifting the blame onto their client. We simply do not know. In those circumstances, it appears to me it would be quite wrong to say that the judge went outside the ample ambit of his discretion in deciding whether it was fair to grant an adjournment or not in failing to take that consideration into account.
32. It is not easy, as Mr Ley appreciated in making his submissions, for this court to interfere with a decision given by an experienced judge in the county court in the exercise of his discretion when deciding whether or not to grant an adjournment when the judge has given clear reasons why he decided that justice demanded that he should continue to try the case. It may be that Sedley LJ or I might have made a different order in the judge's place. That is not the point. The point is that Parliament has given the trial judge in this case the duty to balance all the countervailing arguments and make up his mind, and this court will not interfere unless he has either misdirected himself on the law, of which there is no evidence, or unless he was clearly wrong having gone outside the ambit of the discretion given to him. I can see no sign of that in his judgment. Although I have great sympathy with Mrs Roshdi (if what she tells us is correct), we have to do justice not between her and her solicitors but between her and the defendants, and it appears to me that the judge's order cannot be properly assailed.
33. There was some discussion during the course of the hearing as to whether, in any event, the claim was so wholly hopeless that this court should not change the judge's order because it would simply be putting back on track a claim which was doomed to fail. I, for my part, would not wish to go into that argument. It is unnecessary to do so, and I would simply rely on the fact that I regard the judge's decision in the exercise of his discretion as one with which this court should not interfere.
34. I would therefore dismiss the appeal.
35. LORD JUSTICE SEDLEY: In the case of Lloyd's Bank Plc v Dix (26th October 2000) this court held that there had been no unfairness where, in a not dissimilar situation, the claimants had had adequate time following the withdrawal of their legal aid to prepare for trial as litigants in person. But in that case Laws LJ, giving the leading judgment, declined to base himself solely on this fact. He went on to consider whether an adjournment might reasonably have made a difference to the outcome since, if it would not have done so, the court would not act in vain.
36. In the present case, like my Lord and in respectful disagreement with Mr Ley's submissions, I consider that we cannot fix the county court judge with knowledge which in the nature of things he could not have had at the point in time when he had to decide whether it was right to grant the claimant, Mrs Roshdi, an adjournment.
37. Even so, if one simply goes on the material before the judge at that moment, I have been very troubled by Mr Ley's arguments. Certainly, as my Lord has indicated, the defendants could have had no legitimate complaint if the judge had exercised his discretion in favour of an adjournment. With misgivings - because I do not believe, for what it is worth, that I would have exercised my discretion in the same way - I agree with my Lord that, especially in the light of the Civil Procedure Rules, the judge was nevertheless entitled to refuse an adjournment and thereby knowingly to compel the claimant to proceed in person or abandon her claim.
38. That, in my judgment, as in my Lord's, and for the full reasons that he has given, is an end of this appeal. But both because it was treated as an ancillary issue in Lloyds Bank v Dix and because Mr Campbell has argued it as a fallback for the respondents, it is worth looking for a moment at how the judge's decision on the merits went. I do so in the awareness that it raises issues capable of mattering to the claimant's then solicitors, who have had no separate voice in this appeal and might well not accept the account of everything that is given. Much, however, is recorded on incontestable documents.
39. The judge, when he proceeded to hear the case out, stopped it without calling on the defendants on the ground that it was incapable of succeeding. He had two main reasons for doing so. One was inconsistencies between the claimant's evidence to him and the histories of her injury recorded by the doctors whom she had seen. The other was that the gap which was shown on the photographs then before him did not appear to the judge to be a dangerous gap.
40. Mr Campbell has also submitted to us that the claimant's case anyway did not add up on causation. Even if the conductor of the train had been intransigent, it had had nothing to do with her fall; nor did the gap, albeit it was some 10 inches vertically and four inches horizontally, this being apparently within the Health and safety Executive's guidelines. In these circumstances, says Mr Campbell, no advocate could have made the case winnable. I am not disposed to accept this. This was arguably (and I stress it was at that level that it was decided) a combination of unsettling behaviour by Thames Trains staff and a very awkward gap between the train and the platform. If so, it was for the judge to say whether it was this that caused the fall and then whether the defendant was at fault in having caused it.
41. As to the medical evidence, the defendants had been unsuccessful in their application to keep both liability and quantum on the table at a single trial. The District Judge had ordered a split trial. It was only liability that was supposed to be being tried. Yet without the claimant apparently appreciating that she could legitimately, though perhaps not successfully, have objected to the defendants conducting the trial in defiance of the order for a split trial, the defendants were able to put in parts of the medical reports and treat their reported accounts of the claimant's accident as accurate recitals. I make no comment on the rights and wrongs of this. I simply point out that it is at least arguable that the claimant suffered in this way.
42. Every personal injury advocate and every personal injury practitioner knows how unreliable medical histories can be; but there was no advocate to remind the judge about it or otherwise to advance the claimant's case; and the judge's decision on liability turned largely on the perceived discrepancies between the medical evidence and the testimony before him.
43. None of this can logically undermine the previous refusal of an adjournment. It was not predictable that the claimant might suffer in this way by the absence of skilled representation. Indeed, it is not established before us that she did. But it is a legitimate part of Mr Ley's case that she may have done. It may well be that this will have to be considered hereafter if any question should arise - I do not say it will - about the failure of the claimant's solicitors, with nearly five months notice of the hearing date, to appraise merits with counsel until a point too late to do anything accept withdraw on the morning of the trial, leaving the claimant effectively on her own.
44. The point does not have to do, directly at least, with the problematical legal aid position recently considered by this court in the case of Machi (20th December 2001). The solicitors in this case did not have legal aid to go to trial. The limitation on their certificate took them only to the exchange of evidence and to counsel's opinion on it. Counsel's opinion was adverse, but it was given to the claimant and her solicitors only in conference on the afternoon of the Thursday before the Monday set for trial. The consequent discharge of her certificate was still unresolved on the Monday, but, without authority to proceed, the solicitors had, in any event, to come off the record.
45. Whatever the implications of this history, it cannot, for the reasons that my Lord has given, undermine the judge's decision to refuse an adjournment. In spite of Mr Ley's argument, it was a decision within the judge's powers, arrived at on a fair-minded appraisal of the material then before him. Beyond this point it is not for this court to second-guess it.
46. Despite, therefore, the disquiet that I have expressed provisionally, I too would dismiss this appeal.
Order: Appeal dismissed with costs assessed at £2,250. Public funding assessment of Appellant's costs. Application for permission to appeal to the House of Lords refused.