England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE PENRY-DAVEY)

		Royal Courts of Justice Strand London WC2 Wednesday, 22nd May 2002

Wednesday, 22nd May 2002

1. LORD JUSTICE MAY: This is an application by Miss James (who presents her own case) for permission to appeal against a decision of Penry-Davey J in the High Court of 14th February 2002. The matter that he had to decide came about in the following way. As long ago as April 1989 Miss James sustained injuries in an accident during the course of her employment as a secretary for the National Foundation for Educational Research ("NFER"). She started an action for personal injury damages in respect of her loss and there was a medical report at the time which stated a likely diagnosis as including a condition which was coccydynia. She started those proceedings against NFER in April 1992.
2. She consulted the defendants in the present action, Bailey Gibson & Co, a firm of solicitors, in relation to those proceedings. Those proceedings came to grief because they were struck out under the old Order 17 Rule 11(9) of the County Court Rules because the solicitors failed to set the matter down for trial, and Miss James was subsequently ordered to pay NFER's costs. The solicitors refunded to her the costs which she had already paid to them. So her personal injury action against NFER was lost.
3. On 1st September 2000 she started an action for negligence against the solicitors. In their defence the solicitors admitted that they had been negligent and that as a result of this she had lost her chance to pursue her claim for damages. However, no admission was made as to the value of that lost chance or as to whether or not she would have been able to establish negligence on the part of NFER. At a later stage by amendment the solicitors contended that Miss James had herself caused or contributed to the injury that she had suffered. She denies this.
4. These 2000 proceedings had a number of case management hearings and decisions which dealt with, among other things, the question of expert evidence. Most of those hearings were conducted by Master Leslie except the last one which was before Penry-Davey J. The original idea seems to have been that experts in rheumatology and orthopaedics would be necessary, and it was on 12th March 2000 that Master Leslie gave permission to the parties to rely on evidence of that kind. This obviously was directed towards assessing the value of Miss James' lost chance claim and, I suspect she would say, her claim for damages against the solicitors.
5. On 18th June 2000 those representing the solicitor defendants applied to the court for permission to rely on expert evidence in the field of psychiatry. This was because the evidence of their orthopaedic expert indicated that Miss James' psychological condition was a significant factor in her complaints of ongoing symptoms relating to her accident in April 1989. It appears to have been a diagnosis that she was suffering from chronic pain syndrome.
6. In response to this application Miss James applied for an order that the permission asked should be refused. That was not necessary because that was exactly what the Master was going to have to decide. On 28th June 2001 Master Leslie ordered the parties' experts to discuss and attempt to agree issues, in particular the question whether Miss James had had or still had psychological symptoms or problems that were relevant to her claim, and it was ordered that these experts produced a joint statement under CPR 35.12. At some stage later a trial date was set for 13th March 2002.
7. The experts did indeed meet. They produced a joint statement which included the following (at paragraph 12):

"Her over-riding symptoms are due to her chronic pain syndrome. We believe that all pain has a psychological element and in this case the psychological part of her pain is probably significant. We would recommend a psychological or psychiatric opinion for further information regarding this."

8. In the light of that Master Leslie made a further order on 10th October 2001 in which he gave permission for the parties to rely on expert evidence in the field of psychology or psychiatry. Miss James sought permission to appeal against this order, but this was refused. The idea then was that she should attend an appointment with a proposed psychiatrist. But she has consistently not done so. She did not attend an appointment on 21st November. She did not attend another one which was rearranged for 17th January 2002, and she wrote to the psychiatrist indicating that she was not proposing to attend. The first of those may well have been at a time when she was seeking permission to appeal against Master Leslie's order, but that had been disposed of by January 2002.
9. So it was that on 29th January 2002 the solicitor defendants applied for an order that her claim should be stayed unless she attended their consultant psychiatrist on 18th April 2002. Penry-Davey J heard that application and was persuaded to grant it. It is against that order that Miss James seeks permission to appeal. Penry-Davey J was persuaded that it was clearly in the interests of justice that, if she continued to decline medical examination which in his judgment was clearly necessary if the claim was to be disposed of fairly and justly, it was right that he should make the order that the defendants sought; and so he did. So the position in the action is, pursuant to Penry-Davey J's order, that unless Miss James attended an appointment with the psychiatrist on 18th April, which she did not do, her action is stayed.
10. She has a number of grounds of appeal which I will refer to in detail in a moment. But the essential thing which she seeks is permission to appeal against the order staying her action.
11. Brooke LJ refused permission on the papers, and in doing so he gave these reasons:

"1. The amount of damages which the claimant would have received if her original claim had not been struck out is a central issue in this litigation.

2. The joint experts' report makes it clear that this claim cannot be fairly tried unless the court has the benefit of the opinion of a psychologist or a psychiatrist. They say (p 113) that the claimant's overriding symptoms are due to her chronic pain syndrome.

3. Master Leslie made an order in October 2001 that both parties should have permission to rely on the evidence of a psychiatrist, and that order is no longer susceptible to challenge.

4. In these circumstances Penry-Davey J was clearly right to dismiss the appeal to him, and a further appeal has no real prospect of success. It is certainly does not satisfy the tougher criteria required for a second appeal.

5. This report is essential if the case is to be fairly tried. If the claimant does not wish to submit herself to psychiatric examination, she cannot be compelled to do so, but she will not be able to pursue her claim. No arguable ECHR point arises."

12. The grounds of appeal include in paragraphs 8, 9 and 10 grounds which in my judgment for various reasons including those given by Brooke LJ have no real prospect of success. Paragraph 8, as I think Miss James accepts, does not concern any order judicially made and is therefore not an appropriate subject for appeal. In paragraph 9 of the grounds of appeal she seeks to say that the case management conferences were not conducted impartially because statements to the applicant and actions by the Master at these case management conferences displayed his prejudice to litigants in person, violating her rights to an impartial tribunal as required by Article 6.1, and discriminated against her as a litigant in person violating her rights under Article 14.
13. Miss James has addressed me on that this afternoon. Indeed she says that the main point in addition to others (which I will come to in a minute) was that in her submission Master Leslie showed bias in saying such things as "He who acts for himself has a fool for a lawyer". She says that he offered the defendants the opportunity of amending their defence to include a plea of contributory negligence and, having made that offer, ordered her to reply to it. She says that she asked for the proceedings to be taped but that in October 2001 for part of the hearing the tape was turned off. He did, she submits, show bias, and the order should not be allowed to stand.
14. For two reasons, it seems to me that that ground of appeal has no prospect of success. The first is that it seems to me that Master Leslie was unquestionably right in the circumstances to make the order he did in relation to psychiatric evidence, when the experts acting for both sides had in effect said that it was necessary. Secondly, as Brooke LJ has pointed out, there is no remaining possibility of appealing against Master Leslie's order. That is because permission to appeal against it was refused and the Access to Justice Act bars further appeals against such a refusal. In addition, as Brooke LJ pointed out, this would be a second appeal and the grounds do not begin to measure up to the tough requirements of a second appeal contained in Rule 52.13. In any event I have read the transcripts that are available of Master Leslie's hearings and it seems to me that a case of bias really is not made out at all.
15. The tenth ground of appeal says that Miss James was not given adequate time and facilities to prepare her case. Without going one way or the other into the merits of that, it seems to me that no resulting difficulty has arisen because the orders that have been made were, I think, correctly made (subject to one point that I am going to make in a moment), and it does not seem to me that her case has suffered as a result.
16. The first seven grounds of appeal all rely on various aspects of the Human Rights Act and the European Convention on Human Rights. Miss James has produced a skeleton argument which she has supplemented today orally. It has been very well put together, as has the rest of the bundle, and she has appended to it a number of authorities in support of the skeleton. I have read the skeleton in full and I have also referred to all the passages in the cases that she has gathered together. Putting the matter compendiously the grounds of appeal here seek to say that Penry-Davey J's order of 14th February 2002 was wrong because it was contrary to a variety of articles of the ECHR. This seems to me to have no merit, subject to one point, and in that respect I agree both with the judge and with Brooke LJ.
17. The court has power in an appropriate case and when it is reasonable, just and proportionate to stay proceedings if the claimant refuses to cooperate in a medical examination which the justice of the case reasonably requires. Miss James submits that case law in support of that relates to personal injury cases, but this is a professional negligence case. She has referred me to a passage in the decision of this court in a case called Pinnock v Wilkins where in the penultimate paragraph of the judgment of Ralph Gibson LJ, he says this:

"Counsel for the defendants told us that in personal injuries cases the use of short term investment account rate is 'hallowed'. Whether this is so or not, this is not a personal injuries case. It is a case of professional negligence in the conduct of a client's personal injuries claim, and the interest under consideration is interest payable after the amount of the damages which would have been recoverable in March 1983 for personal injuries had first been calculated in the usual way."

18. That is clearly, I think, a statement relating to the appropriate rate of interest in a professional negligence case and does not go anywhere to suggest that what is appropriate in relation to the calculation of damages in a professional negligence case where that calculation has a large personal injury element should not be conducted on the normal lines. Proceedings must be conducted fairly as between the parties. A claimant cannot, in my judgment, bring proceedings, but unilaterally decide not to cooperate in complying with an order of the court reasonably and justly made to enable the other party properly to present their case. It seems to me that that is a principle which has no violation of any ECHR principle in it at all. It is simply a matter of the fair conduct of proceedings.
19. On the other hand, I think that there may possibly be a basis on which Penry-Davey J's order might be successfully appealed. Its effect is to prevent Miss James having her trial if she continues to refuse to cooperate, which she is entitled to do as Brooke LJ pointed out. On one view all she has to do is to cooperate. But, absent cooperation, the position would be that the defendants admit negligence and Miss James will succeed on liability if she establishes a viable lost chance. That issue is unaffected by the psychiatric evidence. The defendants' schedule of damages, which I have looked at, denies much of the quantum of the claim but admits some of it. Thus, if she succeeds on the lost chance issue she should recover something (not perhaps anything like as much as she is claiming) irrespective of psychiatric evidence. Penry-Davey J's order denies her even that, unless she cooperates. Given that she did not raise the psychiatric issue and her case is that it is not relevant, that might be seen as disproportionate. It might further be seen as possible, proportionate and just that the stay should be removed to enable the action to proceed on the basis that, if Miss James continues not to cooperate, her case would suffer any proper evidential disadvantage resulting from that. That is, to put it bluntly, the relevant psychiatric issues (if there are any) which should have been covered by the psychiatric evidence would or might be taken against her. I do not say that is what would happen, but the court would be faced with having to decide what to do in those circumstances.
20. I emphasise that this is no more than an indication of a possibly viable ground of appeal, not a prediction of the outcome of the appeal. I do not encourage Miss James to suppose that she will necessarily succeed, but I do give her limited permission to appeal on that basis and on that basis alone. It seems to me that the basis which I have described can be brought within her seventh ground of appeal which relates to the subsequent loss of a trial date which she would contend constitutes her right to a fair hearing within a reasonable time within the meaning of Article 6(1) of the ECHR.
21. For those reasons I give her permission to appeal, but it is a limited permission to appeal. I refuse permission to appeal on her grounds one to six inclusive, and eight to ten inclusive. I limit the permission to ground seven on the basis which I have attempted to describe.
(Application allowed in part; no order for costs).