England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE, CHANCERY DIVISION
(MR JOHN JARVIS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd January 2009

Lord Justice Lloyd:

1. This is an application by Miss Marcela Frolikova to reopen and reinstate an appeal which she brought against an order of Mr John Jarvis QC, sitting as a deputy judge of the Chancery Division, and which came on for hearing on 14 July last year before a court including myself and which this court then dismissed, but in the absence of either herself or any representative on her behalf.
2. The court's order allowed her to apply to set aside that order because of it having been made in her absence, so long as that was done by 21 August last year, and the judgment made it clear that she ought to support the application by evidence addressing issues which had been raised in a letter from the Treasury Solicitor acting for the respondent, addressed to her and dated 3 June 2008.
3. The history of the matter up to 14 July, so far as the court then knew it, is set out in my judgment, available under the neutral citation [2008] EWCA Civ 872. I need not repeat that history. I will, however, refer to a few of the most salient features.
4. The appellant, now applicant, had been represented at first instance by solicitors called Chuas for some time up to 10 October 2007. Those solicitors came off the record by a notice signed by Miss Frolikova on 10 October, but of which notice was not given to the court or to the other side until 16 October. The hearing was due on 23 October. She had had plenty of notice of that hearing. She attended the hearing in person and asked for an adjournment. She was given an adjournment, but only one of two days, which she says was wholly inadequate to get legal representation. There was a point in the adjournment being for two days because there was a related hearing, not involving her directly, on the 25th, which came on before the same deputy judge and was dealt with, and the deputy judge then proceeded to deal with the adjourned hearing of the application concerning the applicant. She again attended in person, but an order was made against her and she complains of the shortness of the adjournment that she had been given two days before. She put in an appellant's notice which is stamped on 14 November, and in March 2008 Rimer LJ granted permission to appeal. On that footing I proceed on the basis that the appeal is reasonably arguable on its merits.
5. Once permission to appeal had been granted, a date for the appeal was set. Because perhaps of the nature of the issue on the appeal, and because Rimer LJ, when granting permission, indicated that the matter was to be expedited, for understandable reasons, a date for the appeal was set, originally, for 18 April. At the beginning of April, Miss Frolikova, having had notice of this date, asked for an adjournment. There were two reasons for this. One was that she had not yet obtained all the transcripts that she wished and would not have time to obtain them and to deal with the matter by 18 April, and the other, which was not, I think, advanced immediately but was advanced soon thereafter, was that she was due for medical treatment in Prague in May and was expected to need the month of June for convalescence. The court was made aware of those considerations and a new date of 14 July was fixed for the hearing of the appeal to accommodate both of those problems.
6. In the middle of May, however, she wrote again to the court asking for an adjournment of the hearing until after August on the basis that she needed longer for medical reasons, additional complications having been encountered or foreseen. At that stage the Treasury Solicitor wrote to her the letter of 3 June 2008 to which I have referred. The letter refers to her request for an adjournment and it asks for a response to five questions:

"1. Please let us know what attempts you have made to instruct Solicitors to act on your behalf since October 2007.

2. Please let us have copies of any correspondence you have had with potential solicitors that you have approached.

3. Confirmation as to whether you have now instructed Solicitors and if not why have you not instructed Solicitors since October 2008 [that is clearly a mistake for 2007].

4. In the event that you have not instructed Solicitors an explanation as to why can you not do so now so that they are ready to represent you on the hearing of the appeal on 14 July 2008.

5. Please let me have an explanation of –

a. the nature of your illness,

b. why you need treatment at this time and,

c. why it is not possible to obtain treatment in the UK and why you have to attend for treatment in the Czech Republic"

They asked for an answer as quickly as possible.

7. On 4 June the court wrote to her refusing the adjournment that she requested, but on 24 June she wrote again to the court saying that she was due to have a second operation on 11 July under general anaesthetic, and accordingly would not be able to cope with an appeal hearing on 14 July. The court addressed to her a number of questions in response to her request. She reiterated her request on 7 July but did not answer the questions put to her by the court.
8. All these communications, as I understand it, had been by email. On 10 July the court sent to her an email stating that her application for an adjournment was refused. She replied to that email in an email of her own, which is timed as having been sent at nine minutes past midnight on 11 July. She did not really address in that the issues that had been raised with her. On 13 July, late at night and just after 11.00 in the evening, she sent a further email to the court, again complaining about the difficulties of coping with a hearing date the following day. At the end of that email she said:

"Re CHUA'S, Solicitors said [the] way for them/solicitors to come off record/ said the 'only' quick and simple way is must sign paper so that they can send court. Please agree to adjourn."

The hearing took place on the following morning here in the Court of Appeal.

Of that particular sequence of events, I said in my judgment on 14 July at paragraph 11 that:

"That was followed up by an email sent late last night [that is the 13^th] from which it is unclear, because she does not say, whether she had the second operation on Friday [11^th]; but perhaps the answer is that she did not because otherwise if she was due to undergo an operation on Friday under general anaesthetic, it seems relatively unlikely that she would be sending an email at midnight the previous night or at a late hour on Sunday evening."

When she applied on 21 August to set aside the order, she said of that paragraph:

"It is not justified for the assumption to be made in Para 11 that I could not send the two emails referred to by Lord Justice Lloyd. The email before my treatment was prepared in sufficient enough time before my subsequent further treatment and the email afterwards was sent after I recovered."

9. As to that, I would simply note that the earlier email -- the one sent at nine minutes past midnight on the 11^th -- cannot have been prepared much before that precise moment because it was a reply to an email sent during the previous day. However, she asserts that that was what she did. I had also commented in paragraph 13 of my judgment on her lack of explanation as to the circumstances in which Chuas ceased to act and her lack of any explanation of any efforts to instruct solicitors. As to that, in her witness statement she said at paragraph 4:

"I refer to Para 13 of the judgment and say am not required by law to give reasons why I agree to CHUA'S coming off the record and the assumptions or speculations are unfair as there are many possible reasons for example:

A client's failure to give instructions

A client's failure to follow instructions

A client's misconduct

A conflict of interest

The illness of the solicitors.

It is therefore not correct or fair to draw such or any particular or seemingly prejudicial assumption."

10. It is of course true that she is not obliged to waive privilege; she is not obliged to say anything as to what passed between her and any solicitors whom she may have instructed at any given moment, but if she does not it is open to the court to draw inferences as to what the explanation may have been and she would be free to waive privilege and to disclose the true position. Most of the possible explanations to which she refers in that paragraph would not have advanced her case at all.
11. On the same date as she put that witness statement in, she wrote to the Treasury Solicitor purporting to respond to the letter of 3 June. As to the first four questions, she says:

"I answered by referring to the enclosed letter from Chuas dated 21 August 2008"

12. That letter, which was enclosed, says:

"We write to confirm that we have at all times been your preferred solicitors as referred to in the judgment in the Court of Appeal"

13. It states that they are not presently on the record on behalf of her or the companies. It states that on 26 October they advised her only on a particular issue about an amendment to the order made the previous day. It does refer to a request towards the end of October on her part that:

"…we resumed acting for you in your intended appeal to the order of [25 October]"

It says that they stipulated that they would require full transcripts, including approved judgments of the October hearings. Those did not materialise until May "hence we could not resume acting".

14. They say that since she left for Prague it had been impracticable to take instructions. "The nature of the case requires us to have a face-to-face meeting to discuss and refer to the many documents involved." It also says:

"We requested that you sign a notice of acting in person in the form used as this was the quickest and simplest method in the time available. The alternative method involved an application to the court."

That letter barely begins to answer the questions posed in 3 June letter. It certainly does not provide an adequate response.

15. In her own letter she dealt with question 5 by referring to the medical notes which she said were self-explanatory. She says that she did not foresee the necessary longer treatment that occurred, and she explains that she needed attention and treatment from her long-standing doctor in Prague. I would say immediately that I have no difficulty in understanding why she preferred to attend for treatment in the Czech Republic and I have no difficulty in accepting that the condition that required the treatment may very well have been thoroughly disagreeable, and that it was highly desirable that she should be treated, but it is reasonably clear that it was what is sometimes called an elective operation, as to which there was a degree of flexibility and choice as to where and when she should have the operation, subject to medical requirements for a proper period for recovery from the operation, and, as it turned out, the need for a second operation.
16. As it seems to me, the highest that the matter can be put on her behalf, as Mr Khan in his able submissions, both in writing and orally this afternoon, has put it, is that she did not seek to instruct solicitors until she had permission to appeal, because it might not have been necessary and therefore the expense might not have been justified. She did not obtain permission until March and then she had made a request from the transcripts and, when she was given the appeal hearing date 4 April, she asked for it to be adjourned to allow for (a) obtaining the transcripts and, somewhat later, also (b) to avoid the time during which she was going to undergo her operation and convalescence in Prague. She went to Prague in late April or early May, by which time the transcripts had not become available, and she remained there unexpectedly long because of the need for the second operation and she was unable to cope with the appeal because of the medical history. In fact, that does not tie in adequately with what she says in her evidence because we know that she approached Chuas late in October with a view to their representing her on the appeal, and they said that she had to get transcripts before they could help her; and we also know that the partner in question was away early in April at a time when she sought to get his assistance.
17. She does not, however, address in any detail, and certainly not in adequate detail, the question of why she did not renew her efforts to get representation once the solicitor had returned from his absence on holiday, and why, when she knew that the appeal was going to be coming on in July, she did not instruct either Chuas or some other firm of solicitors to represent her, even though the transcripts were not yet available. The fact is, even putting it as high as I have indicated might be the highest possible, she went to Prague at some point in April or May for medical attention, hoping, but not being certain, that she would be able to return in July in time for the hearing, but with no arrangements of any kind in place to see that her interests were looked after in relation to the pending appeal in the meantime, let alone a contingency plan in case she was unable to be there for the hearing on 14 July.
18. As I say, she failed entirely to respond to the Treasury Solicitor's 3 June 2008 letter at the time, and has not even now provided an adequate response. She has put forward inconsistent explanations for Chuas ceasing to act; now she says that they ceased to act because of a perceived conflict of interest which required immediate investigation. That is a very puzzling statement to be made for the first time in her witness statement dated yesterday, when it is not mentioned at any previous stage and it is not mentioned by Chuas in their letter of 21 August. Consistently with what seems to have happened since the launch of her appeal, she showed no sense of urgency in trying to get solicitors to act for her before 23 October hearing. The case, as it seems to me, carries a strong indication that there is a history of procrastination and attempts to defer the moment of decision.
19. However, leaving that aside and not holding that against her on the basis that that would be a strong thing to decide, I propose to refuse this application on the footing that she has provided a wholly inadequate explanation for her failure to obtain legal representation well in advance of the hearing date of 14 July. She could have instructed solicitors in April before going away to Prague for her medical attention and she should have done. Not to do so left her in an extremely precarious state in relation to a case which she was, up to then, on the face of it, trying to cope with in person. She had taken some appropriate steps to bespeak transcripts and she had got permission to appeal, and she had obtained, through the court's indulgence, an adjournment to a date which was said to be one that would suit her convenience. It was quite unreasonable, as it seems to me, to expect that the case would be able to be adjourned still further; and accordingly it was, to say the least, extremely foolish and imprudent not to have made arrangements for legal representation and assistance before she went off to Prague for her operations.
20. In those circumstances, it seems to me, that her failure to be represented at the hearing on 14 July was her own fault, and in those circumstances it seems to me that there is no good case shown for reopening the appeal so that the matter can be reconsidered as long after the time has now elapsed.
21. In those circumstances, the only order I propose to make is to dismiss this application.

Order: Application refused