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
QUEEN'S BENCH DIVISION
(MR JUSTICE PITCHERS)

		Royal Courts of Justice Strand London, WC2
		2 November 2005

1. LORD JUSTICE WILSON: Today is the day fixed for the hearing, first of all, of an application by Mr Daleman and then, were the application to succeed, for the hearing of his appeal. The proposed appeal is against an order of committal made by Pitchers J in the Queen's Bench Division of the High Court, Nottingham District Registry, on 15 June 2004 on the application of Northamptonshire County Council. The order of committal was based upon an interim injunction granted in the proceedings on 21 November 2003, and upon the judge's finding that in seven respects Mr Daleman had broken that injunction, which, if I may summarise, was an injunction that he should not further import or spread waste materials upon land which he owns in Crick, Northamptonshire.
2. The preliminary application listed before the court today is an application by Mr Daleman for an extension of the time for appealing. Of course, inasmuch as he is appealing against a committal order, albeit a committal order which was suspended, he does not need substantive permission to appeal. But, for reasons which it is unnecessary to consider, his appeal was lodged out of time and so he needs an extension of time.
3. At the outset of this hearing today, the court has taken a point not raised either in Mr Daleman's representations, he appearing in person before us today just as he did before Pitchers J nor (I would think) considered by the respondent's counsel, Mr Bhose. The point relates to the fact that, as I have indicated, Mr Daleman was not represented before Pitchers J. An application for committal to prison is a quasi-criminal proceeding and thus there are strong prima facie grounds to consider that Mr Daleman's rights under Article 6(3) of the European Convention were engaged. If they were engaged, the question is whether they were infringed. That has led the court to attempt to make certain enquiries about the circumstances in which Mr Daleman came to be unrepresented and specifically whether his lack of representation was based upon adequate knowledge as to what his rights were in relation to publicly funded representation, whether entirely free to him or otherwise. Indeed at present we are ourselves not entirely clear of the circumstances in which publicly funded advice and representation are available to defendants for applications for committal in civil proceedings.
4. We have been told that there was a discussion at an earlier hearing of the application to commit on 15 March 2004 before Judge Bray, sitting as a High Court Judge, as to whether Mr Daleman should be legally represented at the substantive hearing for which the judge was then providing. It certainly seems that that judge encouraged Mr Daleman to secure legal representation for the substantive hearing. There has also been an attempt at some enquiry into Mr Daleman's representation in the weeks and months between 15 March 2004 and 15 June 2004; and it is clear that, although no firm was officially on the record as acting for him, Mr Daleman was getting unofficial legal advice at times in that period of three months. Nevertheless this court today is quite unable to discern whether Mr Daleman's lack of representation was a lack of representation which arises out of a failure to apprise Mr Daleman of what might have been, or indeed what under the Convention have been, on offer to him in terms of representation, entirely free or otherwise, or whether it was as a result of his own choice.
5. The court has concluded that this enquiry cannot be taken forward without, apart of course from argument on this seemingly important point, a study of remarks relating to Mr Daleman's lack of representation, which either were made or were not made at the hearing on 14 and 15 June, being probably (one would expect) remarks made at the outset of that hearing. In the period of over a year which has elapsed between 15 June 2004 and today, Mr Daleman has been writing to the court indicating that he aspired to have a transcript not only of the judgment delivered by Pitchers J -- that we all have -- but a transcript of the evidence given. No doubt he was not concentrating upon the point which currently exercises the court. But we have decided that, if only for the reason which I have sought to identify and in order for this court to become clearer as to whether Mr Daleman's rights under Article 6(3) were infringed by the proceeding on 14 and 15 June, we need that transcript; and on balance we consider that there should be a transcript of the entire proceedings, excluding judgment.
6. Accordingly, we direct that a transcript of the hearing on 14 and 15 June 2004 be prepared urgently at public expense, and copies disseminated first to Mr Daleman, second to the Council, and third of course to the court.
7. I would add, in the light of what I have said about comments apparently made by Judge Bray, that the Council may decide, it would be a matter for them, to bespeak a transcript or, if they have a note, make a full copy of that note, of what he said in respect of legal representation for Mr Daleman.
8. The court's decision today of course necessitates an adjournment both of application and of appeal. That is particularly unfortunate for this reason: the Council alleges that since 15 June 2004 there has been a further breach, or have been further breaches, of the injunction dated 21 November 2003. Let me hasten to say that Mr Daleman entirely refutes the allegation of any further breach or indeed any further questionable activity of any sort upon the land at Crick. At all events the Council has issued an application for Mr Daleman's committal to prison for this or these alleged further breach or breaches, and that application is, so Mr Bhose tells us, returnable here in the Royal Courts on 25 November. In that application the Council is not only contending that further breach of the order dated 21 November 2003 should result in a further committal order but also, and in particular, is contending that the further alleged breach or breaches should add to the activation of the committal order made by Pitchers J on 15 June 2004 in that it (or they) is (or are) a breach (or breaches) of the terms upon which the judge saw fit to suspend his order for committal. Thus the hearing due to take place on 25 November is linked to, and in part dependent upon, the order dated 15 June 2004.
9. It will thus be apparent that, as Mr Bhose readily concedes, it is really not practicable for that hearing to proceed while this application and linked appeal remain unresolved. Mr Bhose has realistically accepted that, in those circumstances, that hearing on 25 November cannot take place for the purpose for which it was initially intended but should take place for another purpose. That other purpose is for the court to give directions for the efficient assembly of the entire proceeding.
10. I have to say, speaking for myself, that Mr Bhose has not been able to give the court an entirely satisfactory explanation for why in the 17 months since June 2004 the Council has not progressed the main action and sought to bring it to substantive hearing so that the interim injunction, upon which everything presently hangs, is either replaced by a permanent injunction or of course is replaced by no injunction at all. At all events, whatever the possible criticism of the Council in that regard, Mr Bhose is now more than content for the hearing on 25 November to be used not for the hearing of the application for committal but for the giving of directions for trial.
11. This court proposes to adjourn this application and appeal to be heard on a date in January 2006 to be fixed. Although the preliminary enquiry of the court then will be, with inter alia the advantage of the directed transcript, to consider Mr Daleman's Article 6(3) rights in June 2004, and thus the question of his representation before Pitchers J, it seems to the court highly desirable that Mr Daleman should with solicitors reconsider whether he should be represented, and if so, can get representation, whether on a private basis or on a publicly funded basis, first of all for the directions that are going to be given on 25 November; second for the application and appeal which are going to be further considered by this court in January 2006; and then obviously for the substantive hearing of the action.
12. It seems to the court also convenient that these reasons why today's hearing is to be adjourned should themselves be readily accessible by provision at public expense of the transcript of this judgment which I have just sought to deliver.
13. LADY JUSTICE SMITH: I agree with what my Lord, Wilson LJ, has just said. However, I would add a rider, which is that, for my part, I consider that it would be appropriate that the application for an extension of time made by Mr Daleman should be granted at this stage. It appears to me that there are serious issues which should be considered at the substantive hearing of the appeal in January, and that it would be convenient for the preliminary issue of an extension of time to be, as it were, out of the way before that hearing begins.
14. The application for an extension was to some extent based upon technical failures, and I for my part consider that it should be granted now.
15. LORD JUSTICE CHADWICK: I agree that we should grant the extension of time and that we should adjourn the appeal.

Order: extension of time granted. Appeal adjourned and to be re-listed for hearing as soon as convenient in January 2006. Time estimate four hours. To be heard before three Lord Justices or two Lord Justices and one High Court Judge. Transcripts of proceedings and sentencing remarks before Pitchers J on 14 and 15 June to be provided at public expense to the parties and put on the court file. This transcript to be provided to parties at public expense. Costs reserved.