England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday, 15th March 2002

1. LORD JUSTICE KENNEDY: Mr and Mrs Hunt were in business as builders and did work on the home of Mr and Mrs Acres. Unfortunately, there arose a dispute over payment. Subsequently, Mr Hunt was injured in a road traffic accident. He was given legal aid in order to pursue his claim against the Acres, he claiming he had not been paid in accordance with the work he had done.
2. On 14th June 1995 a statement of claim was served in which he sought to recover £46,124.99. The response of the Acres was to say that nothing was due and the problem was that the work he had done was defective.
3. Initially, he instructed a firm of solicitors called Challoners Lyon and subsequently another firm called Heaton, Moreton & Ryder. He told me today that the claim was due for hearing before Judge Allardice in 1996, but unfortunately Judge Allardice became unwell and was unable to deal with it. It was transferred to Judge Alton. It was due for hearing before Judge Alton on 11th May 1998. On 30th April 1998 the defendants paid £10,500 into court. On 1st May 1998 Mr Hunt sought an adjournment of the hearing which was then due to take place on 11th May. That was refused, and he appealed to this court. His application for permission to appeal was dismissed by this court. While hearing that application the court referred to a matter which again has been referred to this morning by Mr Hunt, namely his unhappiness about the connection which his expert had with the expert advising the defendants.
4. The case was shifted from 11th May to 15th June. On 8th June the Hunts' legal aid certificate was discharged. Of course, the entitlement of the legal aid authorities to recover their statutory charge remained. On 15th June the matter came before Judge Alton. On that day a compromise was reached embodied in what is called a Tomlin order. The effect of the order was that the action was stayed and the claimants were permitted to take out the money in court. It also recorded that each party agreed to bear its own costs. The defendants were represented by a member of the Bar, Mr Dillon. Mr and Mrs Hunt were not represented save that Mr Johnson acted as their litigation friend. It was later alleged that Mr Dillon had given some assurance that there would be no claw back by the legal aid authorities from the £10,500 it was agreed should be paid out to the claimants. In September 1998 the legal aid certificate was reinstated, this time in favour of a firm of solicitors called Frisby & Co, to whom some reference has been made this morning.
5. On 8th July 1998 however the Legal Services Commission applied to be substituted for the plaintiffs so it could exercise its charge over the money in court. It made that application pursuant to Section 16 (6) of the Legal Aid Act 1988. On 13th July Judge Boggis QC ordered that the Legal Services application be heard together with the application made by Mr and Mrs Hunt to set aside the Tomlin order.
6. In October 1998 over a period of three days Judge Fletcher heard both applications and reserved judgment.
7. So far as the application to set aside the Tomlin order was concerned, it was founded on the alleged behaviour of Mr Dillon, to which I have already referred, on 15th June. In effect, it was being said he had acted in such a way as to induce Mr and Mrs Hunt to enter into the Tomlin order when they would not otherwise have done so and had so acted improperly. On 1st December 1998 Judge Fletcher gave judgment in favour of the defendants. He refused to set aside the Tomlin order and found that Mr Dillon had not behaved in the way alleged. He adjourned the application by the Legal Services Commission pending appeal. On 27th May 1999 this court, differently constituted, refused permission to appeal against the decision of 1st December 1998. Judge Fletcher then, in October 1999, refused a further application to set aside the Tomlyn order and ordered that costs be summarily assessed in the sum of £450. On 7th November 2000 Lord Justice Waller refused permission to appeal against Judge Fletcher's decision of 5th October 1999. On 19th December 2000 Judge Fletcher heard the adjourned Legal Services Commission's application to be substituted as claimants, and he granted it. In that decision he dealt expressly with the provisions of Section 16 (6) of the Act, to which I have already referred. He also dealt with Regulations 85 and 87 which were relevant to the application before him. The effect of that was that the £10,500 had to be paid out to the Legal Services Commission. The order made as a result of that decision was made on 2nd January 2001. It is against that order that Mr Hunt nowseeks permission to appeal.
8. The matter first came before this court in December 2001 when Lord Justice Rix adjourned the matter for further consideration of the question of permission to appeal on the ground raised in reliance on Article 6 of the European Convention of Human Rights, but refused permission to appeal on other grounds. It is possible to formulate the Article 6 point in this way. It could be a breach of Article 6.1 for the Legal Services Commission to refuse to provide a litigant with legal assistance in certain circumstances. Here, the Legal Services Commission withdrew funding before 15th June 1998 when the Hunts were faced with a complex piece of litigation in respect of which it could be said they were entitled to legal assistance. Subsequently, they entered into a compromise to which - Mr Hunt has contended ever since - they would not, if properly advised, have agreed.
9. The difficulty of that submission in relation to the facts of this case is this. First, the Human Rights Act on which it is dependent was not in force in June 1998 and neither the court nor the Legal Services Commission can be subjected to duties under that Act retrospectively. There is a very limited exception arising out of Section 22 (4) of that Act in relation to certain types of case, but that exception does not extend to this case.
10. In any event, the obligation to provide legal assistance is a narrow one. It only arises, as the authorities show, in exceptional circumstances where the absence of legal assistance would make pursuit of the claim practically impossible. That situation, on the facts, does not arise here. In fact, in 1998 Mr and Mrs Hunt did not respond to the invitation to show cause why their legal aid certificate, which then existed, should not be withdrawn, and they have already appealed unsuccessfully against a compromise order. This is therefore in effect an attempt to re-open that compromise order which has been fully litigated.
11. Judge Fletcher had no option but to make the decision which he did make which is now the subject of this application for permission to appeal. As he had no option but to make that decision it follows, in my judgment, that the applicant has no real prospect of success on appeal. Although I, like others, have sympathy with him, I cannot therefore allow this application.
Order: Application refused