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 DERBY COUNTY COURT
(HIS HONOUR JUDGE ORRELL)

		Royal Courts of Justice Strand London, WC2
		8 October 2004

1. LORD JUSTICE POTTER: Lord Justice Buxton will give the first judgment.
2. LORD JUSTICE BUXTON: In the proceedings out of which this appeal emerges Mr Kohanzad, who has throughout represented himself, sues the Derbyshire Police Authority in respect of an alleged assault committed upon him by officers of that force on 6th May 2002.
3. He has also sought to bring criminal proceedings in respect of those alleged assaults, those proceedings having been taken over and discontinued by the DPP.
4. Arising out of that incident, Mr Kohanzad was in fact himself convicted of a criminal offence, a matter of which he complains, and also a matter in respect of which he says that there have been a number of unsatisfactory procedural aspects handicapping his attempts to appeal against his criminal conviction.
5. He made an application in this appeal to seek to introduce into the appeal -- which is concerned solely with matters relating to his civil action -- complaints of the nature that I have just indicated, with regard to the criminal proceedings, and he has also indicated that there are apparently problems about finding judges in Derbyshire who consider themselves able to deal with that part of Mr Kohanzad's complaints.
6. The court explained to Mr Kohanzad that it had no jurisdiction in this appeal to deal with anything that he wished to ventilate with regard to the criminal proceedings, or to deal with any of the other orders that he mentioned in an amended notice of appeal. When Lord Justice Potter had explained that to Mr Kohanzad, he very properly acknowledged that he could not pursue further an application to amend his notice of appeal that he had put before this court.
7. We therefore return to the state of the appeal as it was when Mr Kohanzad originally entered it.
8. Mr Kohanzad is the subject of a vexatious litigant order under s 42 of the Supreme Court Act of 1981, so he needed permission of the High Court to start the proceedings that he brings against the Derbyshire Police Authority. That permission was granted by Moses J on 3rd October 2002. As I have said, the claim as formulated alleges assault by two police officers on the date of 6th May 2002 and it indicates that the amount of damages claimed is in the order of £5 million.
9. It is necessary to say something of the history of these proceedings. On 16th August 2003 there was a procedural order made by HHJ Orrell, sitting in the Derby District Register, giving directions for the trial of this matter. HHJ Orrell ordered an exchange of witness statements and other standard steps to be taken, including exchange of medical evidence, and ordered that the trial should be listed for an estimate of two days within the period from 1st December 2003 to 19th December 2003. Granted that the proceedings had only commenced at the end of 2002, that was a reasonably prompt trial date for the parties.
10. That hearing was attended by Mr Kohanzad in person and by counsel representing Derbyshire Police Authority. Various applications were thereafter made in the proceedings and there was a hearing before HHJ Styler on 15th October 2003.
11. The defendant applied for the claim to be struck out. The claimant, Mr Kohanzad, applied for a split trial, for summary judgment, and for transfer to the Royal Courts of Justice.
12. The judge refused all of those applications and ordered proceedings to be stayed to a case management conference on 26th November 2003. He also ordered that the claimant pay the defendant's costs in the sum of £412.50 by 29th November 2003, in default of which the claim was to be struck out.
13. Not in his notice of appeal, as far as I can determine, but in certain other documents, Mr Kohanzad has complained about that costs order saying, as he put it in one place, that the proceedings had, in effect, been a "score draw", and it was therefore wrong that he should have to pay the defendant's costs.
14. He has not sought before us to renew or amend that application to include before us a complaint about that costs order. He was right not to do so because, although we have no note of the judge's grounds for making the order, it was, on the face of the papers, clearly one that was within the ambit of his discretion to determine where the balance of reasonableness lay between the parties, and to decide who had effectively been the winning or predominant party in the application before him.
15. The court will not interfere with such order except on good grounds. No grounds have been demonstrated. As I say, in fact the potential appeal against that order has not been pursued.
16. The appeal itself concerns what happened at the case management conference that had been ordered by HHJ Styler to take place on 26th November 2003. That hearing took place before HHJ Orrell, again in the Derby District Registry. The solicitor for the defendant was present and a letter was before the court from the claimant, having been received on 25th November 2003.
17. We now know that, on that date, Mr Kohanzad was in fact in prison; he was serving part of his sentence in respect of the criminal proceedings against him that had resulted from the encounter with the police officers on 6th May 2002.
18. The letter was headed with the name of the complainant and read as follows:

"Take notice that Appellant is seeking the hearing of 26th November to be vacated to the next available date after 2nd February 2004 with proviso that the appellant be at liberty to bring forward the aforesaid date upon regaining his liberty which the defendant have denied of.

"Under these circumstances the Respondent pay the cost of this application on the grounds that since 10/11/03 the Defendant had been aware that the Appellant could not attend the aforesaid hearing.

"It is further noted that the Appellant did appeal the 15/10/03 costs order at the RCJ in Judicial Review which was a wrong venue and the Appellant has not to date ... received the appeal papers in that matter with costs order appeal of £412.50."

19. That sum of £412.50 is the sum ordered by HHJ Styler on 15th October 2003, to which I have already made extensive reference.
20. What happened at that hearing is the subject of a statement from Ms Jane Mary Price, who is the solicitor in the firm of solicitors acting for the police authority, who then had the conduct of this matter. She says this in paragraph 5:

"5. My recollection is that by the time I appeared in front of HHJ Orrell, [she is speaking of 26th November 2003] a letter had been placed upon the Court file from Mr Kohanzad asking for an adjournment of the Case Management Conference until February 2004 and further requesting an Order that the Defendant bear his costs of the hearing. My brief file note prepared at the time suggests that the basis of the application for costs against my Clients was that I or they were aware that the Claimant was in prison and therefore unable to attend the Case Management Conference. I certainly had no information about that issue.

"6. I have checked my file and can find no correspondence at all from the Claimant during the progression of the substantive proceedings (or indeed the Appeal), save for two faxes. One fax purports to be a List of Documents dated August 2003 and the other served some witness evidence, most of which is illegible and some of which related to the charges brought against the Claimant arising out [of] the incident forming the basis of the criminal charges which the Claimant faced in the Chesterfield Magistrates Court. I believe that these statements were served to expand upon the allegations within the Claimant's Particulars of Claim.

"7. The Claimant has provided disclosure but no other steps in preparing this matter for a Trial have or had been undertaken as at the 26th November 2003. A Trial date was received following an Order made on 10th November listing the matter for Trial on 15th and 16th December 2003. Bearing in mind the fact that the Claimant appeared to be in prison on 26th November 2003 and was requesting an adjournment until February 2004, I asked HHJ Orrell to vacate the Trial date which he duly did. Clearly the parties were not in a position to proceed to Trial due to the lack of complains with the Court Directions."

21. After those exchanges, the judge made the following order, reciting that he had heard Ms Price and had read a letter from Mr Kohanzad:

"1) The matter be transferred to Derby County Court.

"2) The trial listed at Nottingham District Registry on 15th and 16th December 2003 be vacated.

"3) The Claimant to pay Defendant's costs of the hearing, summarily assessed at £450.00, by 4 pm on 19th December 2003."

22. In this appeal, Mr Kohanzad complains of two things. The first is the transfer to the Derby County Court and the fact that that was done in his absence. The second is the costs of the hearing ordered against him for £450. I take those two matters in turn.
23. First of all, so far as the transfer to the County Court is concerned, Mr Kohanzad says that it was entirely inappropriate, in the light of the size of this claim, which we have seen is stated by him to be £5 million; and in any event the order should not have been made in his absence. If he had been present he would have been able to make submissions to the judge which would or might have caused the judge to take a different view.
24. I cannot agree with any of those contentions. The issues facing HHJ Orrell were perfectly routine questions of case management with which in any event this court is most unlikely to interfere. But in any event, the order for transfer to the County Court was, in all the circumstances of the case, an extremely sensible and prudent order.
25. Mr Kohanzad has exhibited a certain amount of medical material that apparently he intends to rely on in the trial and, although we have heard no submissions even a cursory reading of the material indicates that the value of this claim falls very far short of the sum that Mr Kohanzad would wish to place upon it.
26. Further, Mr Kohanzad is mistaken in thinking that the transfer to the County Court either will or may limit the amount of damages that eventually he receives should he be successful. The County Court has ample jurisdiction to deal with this matter and is by far the most convenient forum for this dispute to be litigated in.
27. As I have said, I would not interfere with HHJ Orrell's discretion in any event, but his order was plainly right, and he did not need Mr Kohanzad's presence to assist him towards that conclusion.
28. Secondly, so far as costs are concerned, Mr Kohanzad says that not only should he not have had to pay the costs, it was in fact the defendants who should have paid his costs, such as they were, because they knew that he was in prison. They had put him there, and it was therefore their fault, not his, that the matter had to be vacated and that the trial, listed for 15th and 16th December, could not take place.
29. There are a number of misconceptions so far as that argument is concerned. First of all, it was not the Derbyshire Police Authority who put Mr Kohanzad in prison, it was the Magistrates. To represent that as an aspect of the present civil dispute is entirely misconceived.
30. Secondly, although no doubt (because they were present as the prosecuting authority, or rather present as witnesses in the trial) officers of the Derbyshire Police Authority would have known about Mr Kohanzad's imprisonment, there was no reason why anybody should have thought it necessary to pass that information to the external firm of solicitors representing the police authority in connection with Mr Kohanzad's civil dispute. When in her witness statement Ms Price said that she did not know about this, that is not only unsurprising but also no indication of culpability on the part of her or those instructing her.
31. Thirdly, and in any event, it is quite unclear what the police authority were supposed to do, even if they knew Mr Kohanzad was in prison. It could not possibly be at their initiative to vacate the hearing before HHJ Orrell. It was for Mr Kohanzad to take that step if he wished the hearing to be vacated. As we have seen he did do so, but by writing a very belated letter which only inferentially indicated what his particular problem was. It was Ms Price, the solicitor, who intervened in order to explain to HHJ Orrell, what otherwise on the face of the letter he might well have found difficult, what seemed to be Mr Kohanzad's problem was in attending.
32. We do not know the detailed reasons why the judge made the costs order that he did. But nothing is demonstrated in this appeal to indicate that he so far departed from his general discretion as to costs as to make that order one that was not within his powers. He was faced with a case where the fixture for the hearing before him had been known to both parties ever since 15th October when it was ordered by HHJ Styler. He had only received the day before an application for the fixture to be vacated; no indication of that had been given to the other side, and the application had been made only in obscure terms.
33. Thirdly, he no doubt had in mind that the progress of the trial had in any event been impeded, not merely by Mr Kohanzad's incarceration, but also by a lack of progress earlier. These were all reasons why it was clearly within the judge's discretion to make a costs order against Mr Kohanzad.
34. As my Lord has pointed out to Mr Kohanzad, if he had reason to object to an order made in his absence, he could have applied for a further hearing in front of the judge once he was released from prison. Mr Kohanzad was certainly able to institute this appeal with full knowledge of what had occurred in front of HHJ Orrell on 4th January 2004. He could alternatively have taken the step of reapplying to the County Court if his only complaint was that the order was made in his absence.
35. However, he objects not only to that but also to the substance of the order, which is why he is in this court. I can see no ground on which he can successfully complain before this court of the order made by HHJ Orrell. I would dismiss this appeal.
36. LORD JUSTICE POTTER: I agree. I too would dismiss the appeal and it will therefore be dismissed.

Order: Appeal dismissed. Leave to appeal to the House of Lords refused. Transcript to be supplied at public expense. Applicant to pay the Respondent's costs.