England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2009] EWCA Civ 192

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		Neutral Citation Number: [2009] EWCA Civ 192
		Case No: B5/2008/1533

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(HIS HONOUR JUDGE METCALFE)

Royal Courts of Justice
Strand, London, WC2A 2LL

19th February 2009

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE LAWRENCE COLLINS
and
LORD JUSTICE RIMER
____________________

Between:

	AB	Appellant
	- and -
	LEICESTER CITY COUNCIL	Respondent

____________________

(DAR Transcript of
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____________________

Mr C Buttler (instructed by Messrs Bennett Wilkins) appeared on behalf of the Appellant.
Mr D Carter (instructed by Leicester City Council Legal Services) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Mummery:

This is an appeal from the order made by HHJ Metcalfe on 9 June 2008 dismissing an appeal by the person who has become known in these proceedings as AB, against a review decision of 16 January 2008 to the effect that AB was not eligible for homeless assistance from the respondent, Leicester City Council. That review decision was taken in respect of the application that had been made by AB for homelessness assistance.

The facts of the case, as set out in the judgment of the lower court and in the related papers that have been submitted on the appeal, reveal a very unusual state of affairs, which has given this court considerable concern. The position is that AB arrived in Leicester in 2006. When she came to make an application for homelessness assistance she gave none of the information that was needed by the council to determine her application, and she would not authorise enquires. It appears from medical reports of her GP, Dr Ian Cross, that she may have been the victim of domestic violence or abuse and suffered from post-traumatic stress disorder. Whatever the reason, the position is that her true name and age are not known and nothing is known about her detailed history, such as where she comes from and other details that are needed, such as her national insurance number, for the purposes of processing the application made in this case. She speaks English, we are told, with a West Country regional accent and there is no reason to believe that she is other than English.

On reading the papers, the court became concerned about what useful purpose would be served by this appeal proceeding today in the following circumstances. It appeared from enquiries that her solicitor, Ms Joanne Bennett, who is from a firm in the Law Courts area, has spoken to AB on the phone and taken instruction from her, but has never met her; nor has Mr Buttler, her counsel.

It seems to the court that she has been giving instructions and is behaving in a way which is not in her own best interests. The concern that the court had was whether she might need a litigation friend in order to take litigation decisions for her. When the position was appreciated, I made a request through my clerk that Ms Bennett attends today in order to explain the position about the client. We are grateful to her for attending. It is clear from what we have been told during the hearing that she is having difficulties in acting as solicitor for AB. Shortly before I started to give this judgment the court was informed that she may cease to act as solicitor, having taken advice, I think, from the Law Society about her position on termination of the retainer.

The position as explained by Mr Buttler today was that he did have instructions from his client to seek an adjournment. Mr Carter for the council does not oppose the grant of an adjournment. The reason why AB wants an adjournment is not quite the same as the reason why the court considers that an adjournment in this case would be in everybody's interests. AB wants an adjournment because, as she has previously notified to the court, she wishes to attend the hearing and she does not feel well enough to be here today. The reason why the court favours an adjournment is that this is a litigant who is not behaving in the most rational way about her case; that, as it is presently constituted, we are not convinced that the case, which is being financed by legal aid on her side and involves the expenditure of public money on the council's side, is actually going to serve any useful purpose. We are not satisfied at present that, if AB won the appeal, it would solve her housing problems with Leicester City Council. Mr Buttler says that it would benefit her. Mr Carter for the council says no, there would be further problems for the council in processing her application.

If she lost the appeal that would not be the end of her application for homelessness. It might be the end of the present application, but we have ascertained that under the legislation there is nothing to stop her reapplying to the council. If she reapplied giving information that she was able to give, more than she has given so far, then she might make some progress with that application. In these very unsatisfactory circumstances, an appeal that does not seem to serving any useful purpose, an appeal that involves spending public money, an appeal where there are concerns about whether the client really has fully understood what the position is, we take the view that the hearing should be adjourned for two months. We would express the wish that Ms Bennett continues to act as AB's solicitor for long enough to explain to her personally, not just over the telephone but at a meeting, what the position is with her appeal, and to explain to her the court's suggestion that this may be a case where a litigation friend was appropriate. We would hope that Ms Bennett could report to the court as soon as possible after she has had the meeting with AB what the instructions of AB are. We would also make it clear that, if and when this matter comes back to the court, the court reserves the right itself, of its own initiative, to invite the Official Solicitor to consider whether it is possible for the Official Solicitor to act as a litigation friend. We are very concerned about the situation generally, for the reasons that I have mentioned.

The order that I would make, and which is not opposed, is that this matter is adjourned for two months. It is to be restored as soon as possible after the expiration of the two months, with an explanation to the court of what has happened in the meantime. I make it clear that the report to the court about AB's instructions is to be made as soon as possible, and should not wait until the expiration of the two months.

Lord Justice Lawrence Collins:

I agree.

Lord Justice Rimer:

I also agree.

Order: Application adjourned