England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(His Honour Judge Walton

		The Royal Courts of Justice The Strand London Thursday 17 January 2002

Thursday 17 January 2002

1. LORD JUSTICE LATHAM: In this case the applicant seeks an extension of time within which to apply for permission to appeal against an order of His Honour Judge Walton made on 29 January 2001, by which he dismissed the applicant's claim against the respondents. He also seeks similar permission in relation to two orders of the court by way of pre-trial directions, the first on 8 September 2000 and the second on 17 November 2000.
2. The claim arose out of the applicant's employment as a lecturer in psychology, which came to an end in October 1995. His claim was for psychiatric illness arising out of alleged breaches of the respondents' duties to him, as employers, in two major respects; firstly in relation to allegations by the applicant that he had been victimised, in particular during the latter period of his employment, to an extent which was a breach of the obligation of trust and confidence which they owed to him as their employee; secondly, in relation to the way in which they treated him in August and September of 1995, when there were works done to the respondents' premises which resulted in damage to his room and indeed substantial damage to his property.
3. It is clear that the judge, having heard the evidence with some care, came to the conclusion that, although impressed by the applicant in many ways, he considered that his evidence ought to be approached with some caution because, as he put it, he felt that the applicant might well have been giving an account which was really a rationalisation of events after he had suffered from the undoubted psychiatric illness, and was not truly a memory of events. He concluded that he was not satisfied that the respondents had behaved towards the applicant in any way which could be categorised as victimisation or in any other way a breach of their duties to him. As far as the unhappy events of August were concerned they had taken all necessary steps to give him appropriate warnings so that he could secure his belongings, and therefore they were not in breach of duty to him in that regard either.
4. There is no doubt that a significant element in the judge's conclusion was that on occasions he preferred the evidence of other witnesses, in particular that of a Mrs Cummings, to that of the applicant. The applicant's essential complaint before the court today is that, by reason of the way in which the matter proceeded during the autumn of 2000 and during the trial, he was put at a significant disadvantage in being able to present himself to the judge as a witness of not simply truth (because nobody doubted that he was intending to and trying to tell the truth) but of reliability.
5. His first main complaint relates to the release of records of consultations that he had had with his counsellors. They were inevitably to be considered relevant in the context of the nature of the applicant's claim, but he submits that the way the release occurred was a breach of his right to privacy - in other words, of the confidentiality of the documents; and that the documents now still remain in, as he fears, the public domain in a way which infringes his right to privacy. Also, he submits that he was deprived of the opportunity of being able to see, and therefore comment on, documents which ultimately were disclosed to the court on behalf of the respondents.
6. The position was that a significant amount of the material that the judge had to consider consisted of notes of events during the relevant period, which the applicant was seeking to assert showed systematic victimisation. The problem that he faced was that, in particular, Mrs Cummings' notes were not disclosed at all until after the order of 17 November 2000 and, even when they were disclosed, were not disclosed in full; the last four pages, it is said, being made available to the applicant and his legal advisors only during the course of the trial.
7. He submits that a combination of those matters, together with a general failure by the defence to give adequate disclosure during the course of the proceedings, meant that he was at a disadvantage. In particular, he was at a disadvantage because by the time the last notes were made available to his legal advisors he had already given evidence and the judge may well have already formed an adverse view of him which was, as a result, unlikely to be in any way shaken by the subsequent disclosure of the documents which, he says, could have thrown a different light on the judge's assessment of his evidence.
8. The applicant has made it plain to me that he wishes to have the matters about which he complains rectified by way of proceedings under the Human Rights Act 1998 because he considers that they were the result in part of the judicial orders, in particular as to the counselling records being released inappropriately and as to no proper orders being made to secure disclosure of all the respondent's material. Accordingly, he says, the judge was handicapped at the hearing in making a proper and unprejudiced assessment of his evidence.
9. For reasons which are readily understandable, he does not wish to be embroiled in a true appeal involving the respondents, with the consequential need for lengthy preparation and the clear risk of cost orders being made against him if he were to fail. However, he accepts that the only way that he can raise his arguments in relation to the breaches of the Convention on Human Rights which he alleges in these proceedings is now by way of appeal. Section 9(1) of the 1998 Act makes that plain. The question therefore which he was concerned to determine in his own mind was whether or not he should proceed with the application to appeal.
10. The position is that this court can essentially only make one type of order at this stage: either granting permission, having extended time, or dismissing the application. Having considered the matter with some care, and having sympathy with the dilemma which Mr Laidler is facing, I have to conclude that nothing in the material that I have seen could justify the conclusion that he could possibly succeed in any appeal that he might bring, were he to have wished to have continued along that route. The applicant was advised by solicitors and counsel at the time; the trial does not appear to me to have had any deficiency in it about which the applicant can properly complain; and the judgement of the judge was full, sympathetic and, it seems to me, impossible to criticise in any way which could justify this court in interfering.
11. In those circumstances, I have concluded that there is no merit in the underlying applications.
12. The question which therefore I have to consider is whether I should even grant to the applicant an extension of time within which to make his application for permission to appeal. It seems to me, however, that when dealing with an applicant in person like Mr Laidler one would be slow to seek to shut him out on the basis merely that he has failed to comply with the time limits. So I would have granted an extension of time, were it not, as I have said, for the fact that I do not consider that there is any legitimate basis for an appeal in the case.
13. Accordingly, I propose in those circumstances to dismiss the application for an extension of time. The consequence is that the application for permission to appeal falls by the way. That will leave Mr Laidler to consider what steps he would seek to take in another place, or in some other way, to raise the matters about which he complains.
ORDER: Application refused