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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE DARLOW)

		Royal Courts of Justice Strand London, WC2
		25th May 2004

1. LORD JUSTICE THOMAS: There is before the court an application by Mr Noble, the claimant in an action brought in 2002 against the Commissioner of Police for the Metropolis.
2. The action arises out of an incident that occurred in 1996. It is the claimant's case that he was stopped by two police officers whilst driving his car on 17th November 1996. He says he was informed by them that they were conducting a routine check. It is the claimant's case that as he had experienced previous problems with the police as a result of an imposter committing offences and using his details, he produced a memo given to him by another police officer which stated that caution should be exercised when stopping the claimant as the prosecution may arise out of mistaken identity. The existence of the memo was admitted by the defendant.
3. It was the defendant's case that no such memo was produced or shown to the officers at the time.
4. The claimant was taken to the police station where he was handcuffed and searched. He alleges that he was also searched for drugs and credit cards. He was there approximately two hours in the cell according to his custody record, and was bailed to appear at the City of London Magistrates' Court on 29th November 1996 in response to the warrant for failing to appear at the court on 9th February 1996.
5. On 29th November 1996 the claimant appeared at the Magistrates Court, explained the mistaken identity and the hearing was adjourned until 8th January 1997 for him to return with proof of identity. On 8th January 1997 he returned to the court with documents and the prosecution informed the magistrate that the case had been discontinued, stating that the notice of discontinuance had arrived that morning.
6. Subsequently the claimant had issued proceedings against the defendant for assault and false imprisonment arising out of the events of 17th November 1996. He also claimed in the action aggravated damages and exemplary damages in addition to such basic damages as might be awarded. The claim for assault arose out of the alleged handcuffing and search at Kensington police station. The claim for false imprisonment arises out of the allegation that there was no lawful authority to detain the claimant for the requisite period at the police station.
7. The case was defended and it was the defendant's case that the arrest was made in reliance upon the warrant which contained details similar to that of the claimant. The arrest was lawful and consequently such detention was also lawful.
8. After the proceedings were issued in 2002 there were the usual pre-trial procedures, and the matter was to come on for trial on 8th December 2002 before His Honour Judge Levy QC sitting at the Central London County Court. On that day, and prior to that day, there had been a dispute between the claimant (the appellant before this court) and his solicitors in relation to the way the case had been prepared. What then happened was that the trial which was due to start was adjourned. The claimant (the appellant before this court) sacked his solicitors and made an application that the matter be adjourned. He said he wanted it adjourned because his solicitors had failed to comply with his instructions on the state of the bundle that was to be put before the jury. He enumerated matters that needed to be dealt with.
9. Judge Levy granted the adjournment. By an order made on that day he ordered that:

"The Claimant do pay the Defendant's costs of and occasioned by the adjournment of the trial in any event, save that such costs are not to be enforced save by way of set off against any damages he might receive in these proceedings."

10. That order was made because the claimant (the appellant before this court) was an assisted person. Therefore it is important to point out, as those who have dealt with this matter have pointed out, to the appellant that he is not being asked to pay any costs at this stage. The order merely states that because he is an assisted person, if such costs are enforced they will only be enforced by way of set-off against any damages he might receive.
11. The claimant feels that he should not have to pay the costs because it was his solicitors' fault. This court, and the courts that have considered this matter, are not seised of that issue. That is a matter that has to be dealt with elsewhere. Despite the fact that this was pointed out to the appellant, the appellant sought permission to appeal. His application for permission to appeal was refused. He renewed it, but he was out of time. It came on paper before Simon J who refused the extension of time. He said no legitimate reasons for the delay had been given and in any event the decision was primarily a case management decision and there was no real prospect of successfully appealing the order.
12. From that there was an application for an oral hearing which came on in the High Court before His Honour Judge Darlow, who heard the matter on 22nd March 2004. He refused permission to appeal on the basis that is clearly set out in his judgment. He said that:

"6. If Mr Noble has any complaint it is against his solicitors... If that is so, his grievance is with his solicitors. A proposed appeal to this court against the order of His Honour Judge Levy is not the correct way. If Mr Noble feels that he is going to be liable for some expense, if only because it is taken out of any ultimate award of damages (if any is made) that would be a loss to him -- a loss, he says, that was occasioned solely by the wasted costs thrown away as a result of his solicitors' behaviour. If that is so, his correct avenue is an application in the court below to the judge for an order that would be determined on proper notice to [his former solicitors] following determination of the action as a whole."

13. Against that judgment Mr Noble seeks permission to appeal to this court. In my view, the position is quite clear. Had I considered that there was any prospect whatsoever for the success of this appeal I would certainly have extended the time. He was not that far out of time.
14. However, for the reasons given by Judge Darlow this appeal is hopeless. The judge made absolutely the correct order. As between the claimant and the defendant, the Commissioner for the Metropolitan Police, it is clear that the adjournment was not the fault of the Commissioner. He was entitled to his costs. As between Mr Noble and his former solicitors, that is an issue which may need to be determined. But that is not an issue that has yet been determined and therefore there is no avenue for an appeal to this court.
15. In short, therefore, I refuse permission to appeal. The application is completely and absolutely hopeless. All I would say to Mr Noble is that he should proceed, if he wishes to do so, with his claim against the Commissioner and to take appropriate advice how best to deal with the resolution of what is obviously a dispute between him and his former solicitors. That dispute, however, is not a matter that is before this court.
16. The application is therefore refused.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)