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 CROYDON COUNTY COURT
(Mr Recorder Wood)

		Royal Courts of Justice Strand London WC2 Monday, 4th March 2002

Monday, 4th March 2002

1. LORD JUSTICE BUXTON: This is an application to set aside a grant of permission to appeal made by Dyson LJ on 19th November 2001. Mr Hamill, who moves the application for the permission to be set aside, properly recognises that such an application is an unusual one, and will not be granted by this court save in exceptional circumstances. However, the two bases upon which the application is put both raise unusual and exceptional considerations. I must say something first about the trial and the issues.
2. The claimant in the case is Mr Emmanuel Bay-Sloane, who, at the time of the incident complained of, that is to say 13th January 1997, was under the custody of the first defendant, the Home Office, whose functions in regard to him were being performed, on an agency basis, by the second defendant, Group 4 Security. Mr Bay-Sloane claims that he was injured when he was being transported by Group 4, by reason of the driver of the vehicle in which he was being carried, a Mr Donaldson, having driven carelessly and stopped too abruptly, and also by reason of the fact that he was not secured in the vehicle by way of a seat-belt. The culmination of these factors, it was Mr Bay-Sloane's case, caused him to fall off his seat in the vehicle and to be injured.
3. It is right to say that the injuries of which he complains could be said to fall into two categories. The first is the bumping or disturbance contingent upon falling on to the floor of the vehicle. The second and very extensive head of damages is that he says that, as a result of this injury, he has suffered paralysis. The defendants strongly contest the latter claim and point to evidence which they say demonstrates that it is unfounded. However, that in itself would not be a reason either for not granting permission or for setting it aside; because (as we pointed out in the course of argument) if, otherwise, Mr Bay-Sloane could establish that he had been negligently caused to fall off his seat, from which it would be assumed that some damages, albeit possibly slight, would follow, he would be entitled to assert a claim against those who were responsible. The question for the learned Recorder was, therefore, to decide whether responsibility had in fact been incurred.
4. I will say something about the issues at the trial, and then seek to explain how they impacted upon the decision of the learned Lord Justice.
5. The pleaded case at trial, which can be found in paragraph 3 of the particulars of negligence, was in the following terms. I translate sub-paragraph (i) as being effectively an allegation of res ipsa loquitur. (ii) and (iii) read as follows:

"(ii)The Second Defendant's servant or agent failed to provide any or any properly functioning seat belt. The Second Defendant's servant or agent failed to provide any alternative safety or support mechanism.

(iii)The Second Defendant's servant or agent failed to adjust his driving so as to avoid the impact of a sudden break."

6. Then it is alleged that severe personal injuries followed therefrom. It is clear, therefore, that the complaint at the trial so far as the seat-belt was concerned was that the belt in the seat where Mr Bay-Sloane was either ordered or invited to sit had not been functioning, and Mr Bay-Sloane gave evidence to that effect. He was asked this question in cross-examination:

"Q. And you told the guard that where you were sitting did not have a proper seat belt?

A. Not a proper seat belt, the seat belt was not working. Immediately he showed me where to sit I sat down, pulled the seat belt out it was not working. I turn on him, try it again, I tell him the seat belt is not working, he did not listen."

7. When Mr Kumi, who appeared the trial and appears before us today, addressed the judge in closing in respect of the seat belt he made it clear that the question was whether the seat belt had been defective. He said:

"As far as the seat belts are concerned, the issue of whether there was an efficient system, an efficient seat belt there or a defective one, you may recall the evidence of Mr Bay-Sloane is that he tried it and it did not work. The others say that the system, the seat belt worked and they did ask him to put it on."

8. The evidence of Mr Bay-Sloane, it will be seen, was exactly in line with his pleaded case that the seat belt had not functioned. The evidence of the people from Group 4, who were with him on the van, was that they had asked him to put it on. He did not do so. They tried after the incident to see whether the seat belt was functioning and they claimed that it was. This was all, therefore, in the context of the functioning of the seat belt.
9. In dealing with this at page 4 B of the judgment, the judge said this:

"According to Sharon Young" [she was the guard from Group 4 who was on the van] "and I accept this - he was told to put on his seat belt at the outset of the journey. ... I find that it was a modern inertia reel type of seat belt system.

The claimant says that from the outset he found the seat belt - I think he said seat belts in the plural -defective, and that he complained and that his complaint went unheeded. That is disputed in that the defendants' witnesses ... all say he only complained at the end of the return journey."

10. The judge said at G:

"My finding on this is that on the outward journey the claimant probably did find that the seat belt which he was attempting to use was difficult to operate, may be impossible for him, and that he made a remark about it which got no reaction from the Group 4 staff, and that on the return journey a similar thing probably happened. I find that the claimant is not a particularly assertive person in his manner and there may have been a tendency on the part of the staff not to hear or to heed what he was saying... .

In the circumstances, it does not seem to me to be right to find any positive case on anything mentioned about the seat belt - just to put it neutrally - by the claimant at an earlier stage."

11. Then the judge said at E:

"However, the fundamental issue on the seat belts, it seems to me, is whether they or any of them were defective; not whether the claim found, for one reason or another, a seat belt difficult to operate."

12. Then on the following the page, the judge said this:

"On the issue of instruction to wear a seat belt or use a seat belt, I accept the defence evidence that the claimant was instructed but in any event as a matter of law it seems to me that it was the claimant's own responsibility clearly and I reject the notion that there was anything other than a public duty on the part of Group 4 staff to supervise the claimant as a person in custody. That is a duty which clearly goes to the containment of his person rather than his health or safety..."

13. The Lord Justice in that respect - and this was the second ground upon which he granted permission - expressed concern about those findings. He said:

"The judge made no finding on the question whether the claimant told the staff that he could not operate the seat belt, and held in any event that they had no duty to supervise him. But if he did tell the staff of his problem, why should they not have been in breach of duty?"

14. It is quite clear that it was on that basis that the learned Lord Justice granted permission. He also said in respect of the argument about whether the driver, Donaldson, had been driving too fast this:

"It is true that Donaldson said that he thought that the distance was a car and a half, but he also gave evidence of distance by reference to the courtroom dimensions. The judge was entitled to accept this later evidence, and to conclude on the basis of it, the fact that he was driving at 30 mph, there were no skid marks and no impact, that Donaldson was not driving too close to the vehicle in front."

15. Having said that, the Lord Justice in granting permission said:

"I am doubtful as to issue (1), but there is a real prospect of success on issue (2). Despite my doubts as to (1), I give permission to argue both points."

16. There is no doubt, in my respectful judgement, that had it not been for ground two the learned Lord Justice would not have granted permission to appeal in this case. But Dyson LJ thought that, on the basis of his assessment of ground two - again, if I may respectfully say so, no doubt sensibly if there was going to be an appeal - the applicant ought to have the ability to pursue ground 1, doubtful though he was about it. The problem about ground two, however, which is the question before us, is that ground two was never pleaded. As we have seen, the issue was never whether the claimant complained that he was inept or incapable of operating the seat belt. The issue was whether he had told the staff that it was defective and they effectively turned him away.
17. As we have seen, it has not been possible to put before us any single word of evidence that the claimant gave to suggest that his case was that he had been inept in operating the belt. The piece of evidence that Mr Kumi took us to today, and which he reminded the learned judge of in the passage I have quoted, concerned complaints about the belt being defective. In my judgement that is not merely a pleading or technical point. If that had been the issue at the trial, the Group 4 officers could have been asked whether it was true or not. If it had ever been suggested that they simply ignored this man when he said he did not know how to operate the seat belt, they could have given evidence about it and the judge would not, in my judgement, have simply made the observations that he did about the extent of duty of care; because, despite what the judge said about that, it was properly accepted on both sides that, Mr Bay-Sloane being a prisoner in a disadvantageous position, if there was a particular difficulty about the safety arrangements, it was the duty of those controlling the van to look after them. So if it had ever been an issue as to whether he had complained about his inability operate the seat belt, it would have been the duty of the officials present to deal with it; and, with respect, it would have been entirely right for this court to consider why the learned Recorder had not dealt with the matter. But that was not the case. We are now able to see, in a way that we think was not made plain to the learned Lord Justice, that the basis that he extracted from the learned Recorder's judgment was never in issue at the trial. Therefore it follows that, if his grant of permission is to stand, this court would be giving permission for a different case to be pursued on appeal from that which was pursued at trial.
18. Unless there are very good reasons for that to happen, that is not something that this court will contemplate, and there are no good reasons, in my judgement, set forward for that course to be taken. Although it is unusual to set aside a grant of permission simply because the ground upon which permission was granted did not arise from the evidence or pleadings, in my judgement this is a case where we should take that course. I can see no justification, now that the issue is before us, for this court not facing up to its responsibilities and setting aside the grant of permission already given. I would therefore allow this application to set aside Dyson LJ's grant of permission on that basis alone.
19. There is, however, a further reason why this grant of permission is open to criticism. The judgment was given on 12th June. The application for permission was not lodged until 15th August. Nor, as it so happens, was it served on the respondent. But I do not give further weight to that, but it will be necessary for there to be an explanation of why there had been delay and for an extension of time to be sought.
20. Section 10 of the form deals with that. That read as follows:

"The appellant applies for an order ...

for extension of time for appealing

because:-

I needed to instruct new solicitors to take over the conduct of my case.

I had been unable to obtain the relevant transcripts from the court/transcribers."

21. The application says that, for that reason, the applicant would wish to rely on a witness statement. No witness statement was in fact included. The statement of truth vouching for the matters just set out were signed by Mr Peter Obidi, who gives the name of his solicitors' firm as Douglas & Co Solicitors and his "position held" as "assistant solicitor". When eventually they laid hands on that document and the absence of the supporting material, the respondent's solicitors were extremely surprised. They were surprised because they had understood Mr Obidi to have had the conduct of the matter throughout. In a witness statement by Miss Joy Loftus, who has had conduct of the matter for the defendants, she says that she understood that at the time that Mr Obidi made his statement on 15th August the case was being conducted by the same legal team as had represented the appellant at the trial and for a significant period before then. The case has apparently been taken over by a firm called Soori Ayoola & Okri, where Mr Obidi at some stage had been employed but thereafter not. The burden of this was to say that it is simply misleading to say there had been a need to instruct new solicitors. A new solicitor had been in place throughout. There is no explanation for him, that is to say Mr Obidi, not having filed the papers in due time.
22. Faced with this, Mr Obidi has made a witness statement in this court on 8th February 2002. I shall read that in full. He says that he is currently in the employment of Soori Ayoola & Okri, previously of Douglas & Co. He then says:

"1. That I was the Solicitor in charge of the case of Bay-Sloane v Home Office & Anor at Douglas & Co Solicitors from November 2000 to June 2001.

2.That following the decision of the County Court on the case, and the client's subsequent decision to appeal, I made every effort to file all documents required for the appeal as and when due.

3.That there was considerable delay occasioned by the difficulties we encountered trying to obtain the relevant transcripts from the County Court. Apparently the Recorder, Mr Wood was not available for some time to approve the transcripts. I made over 15 telephone calls to the transcribers Smith Bernal, and the County Court, Croydon trying to obtain the papers. I was also during this time in constant communication with the Court of Appeal.

4.That the firm Douglas & Co was being reorganised and I myself was leaving the firm.

5.That to protect the interest of the lay client I proceeded to lodge the papers.

6.That I was also aware that the friends of the appellant were at all material times making frantic efforts to find Solicitors who will be prepared to take on the case.

7.That I specifically dispute the allegation that I misled the Court."

23. Two questions arise. First of all, whether that explanation satisfactorily removes what otherwise is the impression of an absence of solicitors created by the original document. Second, had that explanation been before the court, would it suffice to justify an extension?
24. Reading Mr Obidi's statement as leniently as one possibly can, it seems to me that the best that he can be saying is that he was having difficulties with the firm, Douglas & Co, which he was leaving; that there was no other solicitors' firm to replace them on the record; and that eventually, in order to assist Mr Bay-Sloane, he lodged the papers with the court. It is to be noted that he did so purporting to be an assistant solicitor with the firm of Douglas & Co. None of that, of course, was made clear to the Lord Justice. The court will always view with sympathy the difficulties that clients have if they lose their solicitors or otherwise are in practical difficulty. But in this case Mr Obidi was still, no doubt entirely properly, looking after the interests of Mr Bay-Sloane, even though there was some uncertainty as to the firm from which he was operating. That is a very different position from the impression created by the grounds (which, we have to note, are drafted by a qualified lawyer), that Mr Bay-Sloane was looking around the place trying to find any solicitor at all. So, in my judgement, the explanation now given does demonstrate that what was put to the Lord Justice was far from being a complete and accurate account.
25. Secondly, would the explanation, read as leniently as it possibly can be, if it had been before the Lord Justice, have led him to grant leave? In my judgement, the situation as at present explained does not lead to that conclusion. It may be that if Mr Obidi had put in further, more detailed and more circumstantial explanations, including a chronology that addressed the question of why he felt able to file the papers on 15th August when apparently he had not felt able to file them within time, it may be that that would have provided a sufficient explanation. But that explanation is not there and the time has long since passed for it to be given. Every opportunity has been given. The explanation was not provided to the single judge, as it should have been, and such explanation as we have is only that set out in Mr Obidi's statement.
26. I would therefore set aside the leave on this ground also. I would do so separately and independently, on the basis that the statement before the learned Lord Justice was insufficient. I would also do so on the basis that, even as properly explained, no sufficient ground has been shown for extending time.
27. It is particularly important in making ex parte applications to this court on paper that punctilious care be taken in any explanation that is given for an extension of time. That is for the very good, practical reason that the Lords Justices who perform this duty, if they are otherwise persuaded that permission should be granted, tend, in the nature of things, not to look too pedantically, or critically, or at too great length at any explanation given for extensions of time. That is simply a piece of practical reality which happily this court can engage in, because in the very vast majority of cases that come before it the court is able to assume, without question, that the lawyers that have drawn up the explanations given for leave for extension have done so consciously, fairly and with full frankness.
28. I regret to have to say that none of that happened in this case. That was undoubtedly the reason why Dyson LJ was misled into granting this application. If the whole of the matter had been in front of him, I do not think he would have granted it. But whether or not that is the case, the fact that the application was obtained on what I consider to be a false basis is in itself a ground for setting it aside.
29. For my part, therefore, for all the reasons that I have given, I would set aside the permission granted by Dyson LJ. I do not agree, in the particular circumstances of this case, with Mr Kumi's main contention that these are matters that should be stood over to the hearing of the appeal. We are perfectly well seised of the complaint about the basis of the case before the judge. We are just as well able to deal with it as would be the court hearing the appeal; and in my judgement we should take that course. The application to set aside the grant of permission is therefore granted. Therefore it follows that the appeal is dismissed.
30. LORD JUSTICE LATHAM: I agree.
Order: As above. The costs of and occasioned by this application shall be the applicants.