England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE EDWARDS-STUART

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2012

Lord Justice Richards :

1. This is an appeal by Miss Pine against an order made by Edwards-Stuart J dated 9 January 2012 giving directions in respect of an appeal and a renewed application for permission to appeal to the High Court against an order made by Master Leslie. The judge's directions relate to the procedure to be adopted for determining an appeal or application in the case of a litigant who says that she cannot afford legal representation and is unable, by reason of disability, to attend a hearing either in person or by video link or telephone, and who therefore applies for the appeal or application to be determined without a hearing and on the papers alone.
2. The background is as follows. Miss Pine brought proceedings against her employer in the Employment Tribunal on grounds of disability discrimination and unfair dismissal. She had only a partial success on liability. Prior to the remedies hearing her solicitors in those proceedings, Royds LLP, brought a claim against her for legal fees in the sum of about £126,000. She counterclaimed in negligence against Royds and brought Part 20 claims against the barristers who had advised and represented her in the proceedings.
3. By an order dated 4 July 2011 Master Leslie gave summary judgment in favour of Royds on the claim and also gave summary judgment against Miss Pine on her counterclaim and additional claims, which he struck out on grounds of abuse of process and failure to comply with previous orders. He ordered Miss Pine to pay the costs of the action. She was represented at that hearing by a barrister on a direct access basis.
4. Any appeal against that order lay of course to the High Court. Miss Pine filed an appellant's notice raising nine grounds of appeal, which were broadly as follows. Ground 1 was that Master Leslie erred in striking out her case for failing to comply with previous orders. Ground 2 alleged a breach of natural justice and of article 6 ECHR in that she had been unrepresented at some of the hearings before the Master and had been unable to attend in person, so that the Master had heard only from the other parties. Ground 3 was that the Master had discriminated against her inter alia by refusing to place a stay on proceedings, failing to make reasonable adjustments to accommodate her disability and failing to appreciate the effect of her disability on her. Ground 4 was an attack on the Master's finding of abuse of process. Ground 5 challenged the Master's decision on costs. Ground 6 raised other alleged errors of law. Ground 7 was a perversity challenge in relation to the Master's alleged refusal to make or to consider making reasonable adjustments, with the result that she was unable to put her case properly. Ground 8 invited the court to make an application or reference to the ECtHR on the issue of the alleged failure to make reasonable adjustments (Miss Pine does not seem to appreciate that no such application or reference procedure exists). Ground 9 was that the Master's order was tainted by bias.
5. On 12 December 2011 Lang J, on consideration of the papers, granted permission to appeal to the High Court on grounds 1, 4 and 6 but refused permission on the remaining grounds. She also ordered the respondents to set out their views on an application by Miss Pine that her appeal be determined on the papers by reason of her disability. That application had been supported by medical evidence, namely a letter from Dr Bodmer dated 12 October 2010, an extract from a report by Dr Weir dated 1 June 2010, based on his examination of Miss Pine in March 2010, and an extract from a certificate completed by Dr Bodmer on 15 March 2011 as to her capacity to conduct proceedings. The certificate stated that since September 2006 Miss Pine had suffered from "Chronic Fatigue Syndrome post Glandular Fever". It said that as a result:

"Julie Pine is operating at less than 10% of usual capacity. She cannot reliably keep appointments or attend Court Proceedings because of this disability and its unpredictability. Even if she did attend she cannot process information in real time (as would happen live in court) and give considered responses at the time. The condition does fluctuate, however, so if given sufficient time Ms Pine can be capable of understanding matters and making decisions. The timescale for fluctuations is weeks rather than hours or days."

6. The respondents lodged strong objections to the appeal to the High Court being determined on the papers. A letter dated 22 December 2011 on behalf of the barrister respondents, adopted on behalf of Royds, set out the basis of the objections. First, as to Miss Pine's disability, it was contended that the medical evidence could not be said to record her current state of health; that Dr Bodmer was not suitably qualified to opine on the effects of her Chronic Fatigue Syndrome; in March 2011 she had been able to attend and give evidence at the trial of her separate claim against her legal expenses insurer (a claim brought to establish her right to an indemnity for legal costs if she instructed a barrister by direct access); and on 4 July 2011 she attended court for the hearing of the strike-out application before Master Leslie, albeit she was represented by counsel on that occasion. Secondly, the respondents considered that it would be less fair and efficient for the appeal to be determined on the papers, and they pointed to the various benefits of an oral hearing. Thirdly, they addressed various other matters, including the giving of an indication that if Miss Pine was unable to instruct counsel for the hearing of the appeal they would not object to her being represented by her fiancé, who trained as a barrister and had assisted her with her claim from the outset.
7. Miss Pine took issue with the points made by the respondents, contending that they were seeking to continue to conduct proceedings so as actively to prevent her from having a fair trial. In the meantime, by letter of 21 December 2011, she also indicated her wish to renew the application for permission to appeal on grounds 2, 3, 8 and 9 (four of the six grounds on which permission had been refused by Lang J). In that letter she stated that owing to her disability she would be unable to attend and represent herself at a hearing, and she invited the court to deal with the issue on the papers.
8. This was how matters stood when Edwards-Stuart J came to give the directions dated 9 January 2012 that are now under challenge. His order included the following provisions:

"1. The Defendant's letter of 21 December 2011 is to stand as a request (treated as made in time) to make a renewed application for permission to appeal in respect of Grounds 2, 3, 8 and 9.

2. The Defendant may make such a renewed application for permission to appeal orally by counsel. That application will be heard before a High Court Judge at the Royal Courts of Justice Strand London WC2A 2LL at 10.30 a.m. on a date to be fixed, subject to the following directions:

(a) If on or before receipt of notification of the date for the hearing, the Defendant does not wish to proceed with that hearing, she is to notify the court and the other parties 7 days before the hearing or within 48 hours of receipt of the notification, whichever is later.

(b) The Defendant is to file and serve on all other parties a skeleton argument in respect of the renewed application on Grounds 2, 3, 8 and 9 at least 7 days before the hearing.

(c) The other parties may if they so wish, file and serve on the court and the Defendant written submissions in response to the Defendant's skeleton argument not less than 48 hours before the hearing but are not expected to attend the hearing (and cannot expect to be heard or to recover costs if they do).

NOTE: This is not the hearing of the appeal. It is an application only for permission to appeal. If permission to appeal is granted, directions may be given for the hearing of the appeal.

3. If the Defendant does not make an oral renewal application pursuant to paragraph 2 above, the renewed application for permission to appeal in respect of Grounds 2, 3, 8 and 9 is to be treated (without further order) as refused.

4. If the Defendant makes a renewed oral application pursuant to paragraph 2 above, the application for permission to have the appeal in respect of Grounds 1, 4 and 6 (and any of the Grounds 2, 3, 8 and 9 for which permission is granted) dealt with on paper is to be determined at the same time in the light of the submissions already served by the other parties.

5. If the Defendant does not make an oral renewal application pursuant to paragraph 2 above, the application for permission to have the appeal in respect of Grounds 1, 4 and 6 dealt with on paper is to be determined following receipt of the notification referred to in paragraph 2(a) above and in the light of the submissions already served by the other parties.

6. When determining whether any appeal is to be dealt with on paper under paragraph 4 or 5 above, the court will at the same time give such directions as may be appropriate for the disposal of that appeal, including the time for service of skeleton arguments by the Respondents (which, in the meantime, is extended generally).

7. If the Defendant wishes to rely on any up to date medical evidence at the hearing or in relation to the application to have the appeal dealt with on paper, such evidence is to be filed and served on all other parties by the later of the two dates referred to in paragraph 2(a) above."

9. The judge gave written reasons, including these:

"1. A renewed application for permission to appeal is by way of an oral hearing: see PD 52, paragraph 4.13. There is no entitlement to further reasons from the judge who refused the application on paper.

2. No useful purpose would be served by simply requiring another High Court Judge to consider the same material on paper all over again (even if the rules permitted it): the purpose of an oral hearing is to enable the appellant (or his/her counsel) to focus on the relevant issues and to direct or mould his or her arguments to the response of the tribunal being addressed.

3. I can see no reason why such an application cannot be made on behalf of the Defendant by counsel.

4. The Defendant's proposals for the disposal of the appeal on paper are not satisfactory, but I am not prepared to decide the matter at this stage prior to the outcome of the renewed application for permission. However, the Defendant must understand that in the absence of up to date medical evidence the application to have the appeal dealt with on paper may well not succeed."

10. Miss Pine's grounds of appeal and skeleton argument advance a number of closely related points of criticism of the judge's order. She contends that it has the effect of denying her a fair hearing by reason of her disability; that it is in breach of article 6 ECHR and of the anti-discrimination provisions of the ECHR (article 14 and protocol 12); and that it is in breach of natural justice. She points out that a disabled litigant has the same rights and protection as other parties to the litigation, and submits that the court must give reasonable consideration to making reasonable adjustments to enable a disabled litigant to pursue her case properly. She submits that the court should not entertain submissions from other parties at a hearing that the disabled litigant is unable to attend.
11. She also relies on the fact that in separate appellate proceedings relating to the original Employment Tribunal claim Elias LJ agreed to determine various applications on the papers. That appears to be a reference to the procedure set out in paragraph 3 of a letter dated 22 March 2012 from the Civil Appeals Office to Miss Pine:

"Elias LJ will consider all the applications together on the papers. However if you wish to have a video-hearing instead, please confirm by 19^th April 2012. The applicant should make any submissions or further submissions which she wishes to advance within 28 days of the date of this letter. Elias LJ will then, within 14 days or as soon as practicable thereafter, notify the applicant of any observations or clarifications, if any, which might be necessary to assist him in reaching his conclusion, being the kind of observation and/or clarification which he would make if hearing the case orally. The applicant will have a further 21 days to respond, if she wishes, to any such comment."

12. Sir Scott Baker, on consideration of the papers, refused permission to appeal against Edwards-Stuart J's order, pointing to the reluctance of this court to interfere with case management decisions.
13. The matter then came before Toulson LJ, notionally (as I understand it) on an oral renewal but in practice by way of renewed consideration on the papers and without a hearing. By his order dated 17 August 2012 he granted permission to appeal. His reasons were as follows:

"On first impression my opinion was the same as that of Sir Scott Baker, i.e. that the order was a case management order against which there was no good reason for permissing an appeal.

On reflection, I think that it is reasonably arguable that the form of direction was too rigid in view of the defendant's disability.

In order to progress the matter without further delay, I would have wished to vary the order so as to provide as follows:

1. The defendant's renewed application for permission to appeal from the order of Master Leslie dated 4 July 2011 will be heard by a High Court Judge on a date of which the defendant is to be notified.

2. The defendant should be offered the opportunity to make her renewed application by video link or by telephone, if she is unable to attend in person or arrange representation.

3. The defendant should file with the court within 7 days any further material which she wishes the Judge to consider at the hearing.

4. If the defendant does not wish or is unable to make her renewed application in person, by video link, by telephone or through representation, it will be determined at the hearing on the material before court.

However, I am doubtful whether it is within my power as a single judge to make such an order. I therefore direct that the matter be listed before a court of 2LJJ at the earliest practical opportunity, on notice to the defendant and the respondent (with no obligation on the part of either to attend), with an estimated hearing time of 30 minutes."

14. Miss Pine was therefore given permission to bring the appeal which is before us today. She then objected to an oral hearing of the appeal, on the ground that she remained unfit to attend a hearing. I directed that Toulson LJ's order was to stand. Miss Pine repeated and expanded on her objections to a hearing, again making clear her position that she could not participate in such a hearing in any way, whether by attendance in person or by video link or telephone. In order to check on the need for a hearing I asked the Civil Appeals Office to enquire of the respondents whether her appeal to this court was opposed and, if so, whether they would be content for it to be determined on the papers. A lengthy email response dated 22 October 2012 on behalf of Royds, with which those acting on behalf of the other respondents expressed agreement, exhibited a degree of confusion about the effect of Toulson LJ's order granting permission to appeal and, whilst suggesting that the respondents would not attend a hearing (and even that they would not have locus standi to do so), did not indicate their consent to an order or agree to a hearing being dispensed with. The response also requested certain modifications to the disposal proposed by Toulson LJ if the court were otherwise minded to make an order in those terms. Having established that the matter could not be dealt with by agreement, I directed that the case be listed for hearing in accordance with Toulson LJ's order, but on an expedited basis in view of the delay to date and the nature of the case (it being an appeal against case management directions made almost a year ago).
15. Miss Pine made further written submissions, by emails of 6 December and 11 December 2012, objecting once more to this course and requesting a stay in order to enable her to challenge in the Supreme Court the decision to hold a hearing of this appeal. By an email dated 17 December 2012 she advised the court that she had actually lodged with the Supreme Court an application for permission to appeal. By a further email dated 18 December 2012 she reiterated her request for a stay of this appeal. I have taken into account the contents of those emails, together with all her earlier submissions.
16. By letter dated 14 December 2012, the solicitors for Royds confirmed that neither they nor their client would be attending the hearing of the appeal before us and that they regarded the issue in the appeal to be solely a matter between Miss Pine and the court. The letter adds nothing material to the email of 22 October 2012 referred to above.
17. I take the view that in the absence of agreement between the parties the listing of a hearing of this appeal was unavoidable and that Miss Pine's application for a stay was misconceived and should be refused. All parties to the appeal are entitled to a hearing. I am prepared to proceed on the basis that Miss Pine, in line with her repeated submissions, is unable to avail herself of that entitlement because she cannot afford legal representation, is unable to obtain pro bono representation and, by reason of her disability, is unable to represent herself at the hearing (whether by attendance in court or by video link or telephone). That does not, however, affect the respondents' entitlement to a hearing. They did not agree to the appeal being determined on the papers; and despite the indication given in the email of 22 October 2012 it remained possible until a late stage that they would exercise their right to attend the hearing that they evidently envisaged would still take place. Only by their letter of 14 December 2012 did the solicitors for Royds confirm that neither they not their client would attend the hearing.
18. In the event, however, since none of the parties have attended the hearing, we have ended up in practice in exactly the position for which Miss Pine was contending: the appeal falls to be decided on the papers before the court, without any additional oral submissions. Miss Pine's procedural complaints about the appeal to this court therefore fall away. But that still leaves the important question whether there is a valid basis of complaint about the order of Edwards-Stuart J that is the subject of the appeal.
19. As to that, I agree with the view of Toulson LJ, in his order of 17 August 2012 quoted above, that the judge's form of direction was too rigid in relation to the procedure laid down for determining the renewed application for permission to appeal against the Master's order on additional grounds. The judge directed in effect that unless the application was made orally through counsel at a hearing it was to be refused. This was evidently because he considered that an oral hearing was required by the practice direction (to which he referred at paragraph 1 of his reasons) and that the only way an effective hearing could take place was if Miss Pine was represented by counsel, since she had made clear her position that she could not attend a hearing in person. He also said at paragraph 2 of his reasons that no useful purpose would be served by requiring the same material to be considered by another High Court Judge on the papers. On that point, however, I respectfully disagree with him. Provided that an application of this kind is not one that has been certified to be totally without merit, I do not think that it will necessarily be without useful purpose for a different judge to consider the application on the papers (including any further material that may been lodged since the papers were first considered). In the situation here under consideration, where a litigant is entitled to a hearing of a renewed application but for good reason is unable to attend the hearing, it seems to me to be a proper course to adopt. It is true that a hearing is envisaged by the practice direction (currently paragraph 7.2 of Practice Direction 52B in relation to appeals in the High Court). But the court has power in an appropriate case to dispense with a hearing and to deal with the matter by way of a written decision, or to proceed with a hearing and to give a judgment in open court in the absence of the applicant. In either case, after consideration of the papers the court can seek any clarifications that are necessary for the purpose of reaching a decision on the application, in the same way as was provided for by Elias LJ in the directions in other proceedings set out at paragraph 11 above.
20. For those reasons I take the view that Edwards-Stuart J's order should be varied along the lines proposed by Toulson LJ, so as to allow for a determination of the renewed application on the papers before the court if Miss Pine is unable to secure representation or to attend the hearing in person. In their email of 22 October 2012 the respondents requested a modification to that proposal, by way of an additional provision that if Miss Pine files any further material with the court for consideration at the hearing, the respondents be permitted to file a response. Although the application for permission to appeal is essentially an ex parte procedure, I note that Edwards-Stuart J made provision for responsive submissions at paragraph 2(c) of his order and I would not interfere with that aspect of his decision: to deal with the point, I would allow the respondents 7 days in which to respond to any further material that Miss Pine lodges with the court in support of her application for permission to appeal on additional grounds.
21. It will be necessary to make a number of minor consequential amendments to paragraphs 4-7 of the judge's order so as reflect the changes indicated above: in particular, the separate application for the appeal to the High Court to be dealt with on paper should be determined at the same time as the renewed application for permission to appeal on additional grounds. I see no reason to interfere substantively, however, with any of those provisions. I note that paragraph 7 makes provision for the filing and service of any up to date medical evidence on which Miss Pine wishes to rely in relation to the application for the High Court appeal to be dealt with on paper. Although the respondents have suggested that the court should require Miss Pine to adduce further evidence to substantiate her claim even before a decision is taken as to how her renewed application for permission is progressed, it seems to me that the renewed application can properly be dealt with in the way set out above without the elaboration of additional medical evidence, but that Miss Pine may wish to submit further medical evidence in support of her application for the appeal itself to be dealt with on paper, given the respondents' strong resistance to dispensing with a hearing and their strongly expressed scepticism as to her claim to be unfit to attend a hearing.
22. I would add, though it is not a point falling for decision today, that I cannot myself see how the judge deciding Miss Pine's application for the appeal to the High Court to be dealt with on paper could properly decide on a procedure that denied the respondents the hearing to which they are entitled and on which they are insisting, even if the judge is satisfied on the evidence before him that Miss Pine could not obtain legal representation for the hearing and, by reason of her disability, would be unable to represent herself. But the judge will wish to assess the true extent of Miss Pine's difficulties and to consider in the light of them how best to ensure that she is fairly treated in relation to the hearing of the appeal. By way of example, one possibility to consider would be to allow her to be represented by her fiancé, as suggested in the respondents' letter of 22 December 2011 (paragraph 6 above). In any event I do not accept that there would be any inherent procedural unfairness in a hearing of the appeal proceeding without representation or attendance by or on behalf of Miss Pine. The judge would be able to take into account all the written material submitted by Miss Pine and to ensure that any oral submissions on behalf of the respondents did not raise new points on which Miss Pine had not had an opportunity to make representations (or, if appropriate, the judge could adjourn the hearing to give her such an opportunity). The judge would be able to ensure generally that Miss Pine was not unfairly prejudiced by her absence.
23. In conclusion, I would allow the appeal to the extent set out in this judgment and would make an order in the terms of the draft attached.
24. I would also refuse Miss Pine's application for permission to appeal to the Supreme Court against the decision to proceed with the hearing of the appeal and against the order made on the appeal.

Master of the Rolls :

25. I agree.