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
MR JUSTICE PENRY-DAVEY)

		Royal Courts of Justice Strand London, WC2
		11th November 2005

1. LORD JUSTICE LLOYD:  I will ask Lord JusticeMoore-Bick to give a judgment, possibly as much for the benefit of the Legal Services Commission as of the parties.
2. LORD JUSTICE MOORE-BICK:  This matter comes before the court by way of an application for permission to appeal against an order made by Penry-Davey J on 13th October 2005 dismissing the defendant's application to adjourn the trial which is due to begin on 14th November.  The trial is listed to last for five days.
3. The application came before me on 8th November 2005 for consideration on the papers, and in view of the proximity of the trial I directed that it be adjourned to be heard on notice to the respondent, with appeal to follow if permission were granted.
4. The claim in this case is very unusual and arises out of events that occurred in July and August 2000.  The claimant, Mr Rezaul Islam, is aged 28 and is the son of the defendant, Mr Moklis Meah.  In his points of claim he alleges that in June 2000 he visited his father's house in Orpington intending to stay for a few days, having just returned from travelling in Morocco.  He says that on 14thJuly he was physically prevented by his parents, his four brothers and other members of the family from leaving the premises.  Thereafter, between 5th and 9th July he says that he was allowed out of the house on only two occasions and then under escort.  From 10th July to 14th August he says he was not allowed out of the house at all.  He was not allowed to use the telephone or any other means of communication with the outside world.  He alleges that he managed to escape from the house on one occasion but was recaptured and that after that additional locks were placed on the doors and bars on the windows.  He says that different members of the family took turns to guard him at night.  On 14th August he says that he asked to see a doctor and that when the doctor came to examine him he asked him to call the police.  Later that day the police came to the house and he obtained his release.  Those allegations form the basis of a claim for damages for false imprisonment.
5. The claimant says that after that his father tried to have him compulsorily detained under the Mental Health Act.  He says that his father told the police and the doctors that he had been in Morocco training for jihad and made other false statements to suggest that he was mentally ill and dangerous. That was done in an effort to have him detained.  Those allegations originally formed the basis of a claim for damages for defamation but that has since been dismissed because it was time-barred.
6. The defendant denies all those allegations.  He agrees that the claimant resided at his house during the period in question, but says that he was free to come and go as he wished, that he was allowed to use the telephone and the e-mail, and that he had a mobile telephone of his own.
7. One can see, therefore, that the claim turns entirely on the accounts to be given by those who were present of events that occurred over a period of six or seven weeks in the summer of 2000.
8. There has been a certain amount of delay in bringing this case to trial, but it is sufficient to say that on 28th February 2005 MasterFoster ordered that the trial should be fixed for a hearing between 1st July and 31st October.  In fact it was originally fixed for 18th July.
9. The claimant has been conducting these proceedings on his own behalf.  The defendant managed to obtain the services of a solicitor which he had been funding privately, but we have been told that his funds were exhausted by April 2005 and that in June his solicitor came off the record.  Since then he has had no legal representation of any kind.
10. In those circumstances an application was made to the court on 5th July to adjourn the trial then fixed for 18th July.  An order for an adjournment was made by Davis J, who ordered that a new date be fixed for the trial not before 3rd October.  In the event, as I have already indicated, the trial has been relisted for 14th November.
11. On 13th October the matter came before Penry-Davey J on the defendant's application for a further adjournment.  The primary ground of the application was that the defendant needed legal representation if he was to be in a position to defend the case against him adequately.
12. The defendant is a man of 64 years of age of Bengali origin and of modest education.  He cannot, we are told, speak, read or write English other than at a very basic level and has a very limited understanding of the legal system.  He depends heavily on others to explain matters to him and indeed has relied heavily on one of his sons, Mr Joynul Islam, to assist him with the proceedings since he ceased to be legally represented.
13. Attempts were made to find a solicitor who will act for him on a publicly-funded basis.  It appears that initially that proved difficult, but in August he was successful and an application has been made to the Legal Services Commission on his behalf.  The solicitor handling the matter has indicated that he is willing to act for the defendant if public funding is available.  We understand that that application has been referred to the Special Cases Unit and is still under consideration, the defendant having provided all the information required of him to enable a decision to be made.  Unfortunately, we are not aware when a decision is likely to be forthcoming.
14. As I have already indicated, the claimant is representing himself in these proceedings, but he has the advantage of having been educated to university level in this country and, if I may say so, is clearly a man of some intellectual ability.  He certainly has a good grasp of English.
15. The judge was understandably concerned by the fact that the events giving rise to this dispute occurred over fiveyears ago and that the dispute is likely to turn almost entirely on oral evidence.  One can understand, therefore, why in those circumstances he thought that it was very important to bring the matter to trial as soon as possible.  He recognised that legal representation was desirable, but did not think that it was the overriding consideration.
16. We have had the benefit of hearing this morning from both Mr Joynul Islam, acting as his father's McKenzie friend, and from Mr Rezaul Islam.  I am pleased to say that Mr Rezaul Islam has agreed that the application should be granted and the appeal allowed to enable his father to pursue his present application for the funding required to enable him to obtain legal representation.  I am pleased about that because this seems to me to be a case in which it is highly desirable for the defendant to have legal representation if at all possible.  The trial is likely to run for several days; there are likely to be about ten oral witnesses whose credibility in each case will no doubt be in dispute.  Emotions may well run high, given the fact that this is a dispute within a family.  It is just the type of case in which the assistance of solicitors and counsel would be extremely valuable, not only to the parties themselves but also to the court.
17. In those circumstances the appeal will be allowed and it will be for the court to consider what directions should be given for the trial to be relisted.  Mr Rezaul Islam has made the point, entirely properly, that the matter does need to come on as soon as is reasonably practicable.  We will hear him and his brother in relation to the directions that we should now give.
18. SIR PAUL KENNEDY:  I agree.  The only point that I would wish to emphasise is that Mr Joynul Islam, who has been of great assistance to his father in court today, cannot realistically be expected to act as a McKenzie friend if this matter goes to trial without legal representation.  His father will therefore be without any McKenzie friend suitably qualified to present his case.  In those circumstances, it seems to me that justice simply cannot be done unless the father is properly represented.
19. LORD JUSTICE LLOYD:  I agree.

(Further submissions as to directions)

20. LORD JUSTICE LLOYD:  We are most grateful for the helpful submissions we have had.  The order that we propose to make is this.  First of all, the application for permission to appeal is granted and the appeal is allowed.  The date currently fixed for trial, which is Monday 14th November, is vacated and we will direct that the case be relisted for trial in a trial window starting on Monday 13th February and running to Monday 20th March.
21. It seems to us that it would be a good idea for there to be a case management conference, some couple of weeks or so before the trial, before a judge so as to make sure that the case is in an appropriate state of preparation.  We will direct that such a hearing take place at a convenient date in the week of Monday 23rd January before Eady J (who is the judge in charge of the Queen's Bench list) or it may be that more conveniently it can come before another judge.  But in principle it will be before Eady J, rather than going back to a Master. 

(Further submissions as to costs)

22. LORD JUSTICE LLOYD:  So far as costs are concerned, we will make two different orders.  The costs of the application for permission to appeal and of the appeal, principally of today's hearing, will be costs in the case, so that whoever wins at the end of the day will get those costs and whoever loses will have to pay them, but we think that the claimant is justified in saying that if and to the extent that any costs turn out to have been wasted as a result of the adjournment, he should be entitled to those costs at the end of the day in any event.  So we will, as I have indicated, adjourn the trial, but we will do so on terms that the defendant pays the claimant's costs thrown away by the adjournment.  Those will have to be assessed in due course, once it is known what those costs are.

ORDER:  Application for permission to appeal granted; appeal allowed; the date currently fixed for trial, Monday 14th November, is vacated; it is directed that the case be relisted for trial in a trial window starting on Monday 13th February and running to Monday 20th March; the costs of the application for permission to appeal and of the appeal (principally of today's hearing) will be costs in the case; if and to the extent that any costs turn out to have been wasted as a result of the adjournment, the defendant should pay the claimant's costs in any event, to be assessed in due course once it is known what those costs are.

(Order not part of approved judgment)

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