England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Wood QC
9LV26595

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2013

Lord Justice Briggs :

1. On 11^th December 2003, Mrs. Susan Mulcahy reached a negotiated compromise of her claim for ancillary relief from her then husband, outside court, on the first day of a planned two-day final hearing, at which she was represented by experienced counsel, Mr. Christopher Smyth. The District Judge made an order embodying the terms of the settlement on the same day.
2. Mr. Smyth had been retained on her behalf by her solicitors, Hextalls with Castles & Co ("Hextalls") but, no doubt to save costs, no representative of the firm attended the hearing, nor the conference with Mr. Smyth which Mrs. Mulcahy attended on the previous evening. Mr. Smyth had been retained in succession to Mr. Graham Campbell, who had both advised and been briefed for the hearing, due to an earlier case of his having overrun. The solicitor with primary conduct of Mrs. Mulcahy's divorce proceedings throughout was a Mrs. Valerie Boots. She began maternity leave at the beginning of December 2003, leaving a locum in her place, but only after instructing Mr. Campbell to advise at a conference on 19^th November which she and Mrs. Mulcahy attended, and providing him with a full written brief for the hearing. Following that conference, which lasted for several hours, Mr. Campbell prepared a Calderbank offer proposing a clean break settlement. The compromise ultimately negotiated on 11^th December was not substantially different from that which, with Mr. Campbell's advice, Mrs Mulcahy had been seeking.
3. Following the compromise, another locum solicitor standing in for Mrs. Boots obtained for Mrs. Mulcahy a decree absolute, in February 2004. Almost immediately thereafter Mrs. Mulcahy developed a deep and detailed level of dissatisfaction with the service which she had been provided by Hextalls and, later, by Mr. Smyth. Having instructed replacement solicitors, she issued proceedings against them (and against the firm by which Mrs. Boots had previously been employed), seeking damages for professional negligence. She settled her claim against Mr Smyth shortly before trial. Although professionally advised at the outset, Mrs. Mulcahy had become a litigant in person by the time of the issue of those proceedings. She was professionally represented for part of 2011, but acted in person at the trial before Judge Graham Wood QC in the Liverpool County Court, over four days in January 2012. It is against his dismissal of her claim, with costs, by Order made on 5^th April 2012, that Mrs. Mulcahy appeals, with very limited permission granted to her upon her renewed oral application, by Hughes LJ, on 23^rd January 2013.
4. Much the most striking of Mrs. Mulcahy's many allegations of negligence against her solicitors was that, having regard to her Roman Catholic faith, Mrs. Boots had failed to give her the advice which was requisite in view of her firmly held belief in the sanctity of marriage, either in terms of the alternative of judicial separation, or about the impossibility of pursuing divorce proceedings to a clean break settlement, without thereby inevitably bringing about the final termination of her marriage, which she wished to avoid. This lay at the heart of the substantive issues which, in paragraph 25 of his reserved judgment, Judge Wood said that he had to decide. Mrs. Mulcahy's grievance at his rejection of that central part of her case formed a major plank in her grounds of appeal which, after amendment with permission from Master Bancroft-Rimmer in August 2012, runs to some 41 paragraphs. Nonetheless, it formed no part of the matters argued before the court on this appeal, because permission to do so was refused both by the judge, by Lewison LJ on her written application, and by Hughes LJ on its oral renewal.
5. Rather, the hearing before us has been concerned with three other matters. The first, which was the only ground of appeal for which Hughes LJ gave permission, was that the judge had wrongly rejected Mrs. Mulcahy's case that her solicitors had been negligent in failing:

"…to pass on to counsel (Mr. Smyth) attending the ancillary relief hearing the information provided by the claimant that her income had fallen significantly since the completion of her Form E."

6. The second and third matters about which we heard argument consisted of grounds of appeal for which Mrs. Mulcahy had been refused permission, but which she sought nonetheless to pursue, by application notice dated 25^th November 2013. Taking them in turn, the second matter was that the judge had failed to take into account the fact that she suffered from the lifelong condition known as Asperger's Syndrome, the adverse consequences of which for a litigant in person amounted to a disability, the full effects of which had not been recognised either by the judge or by Hughes LJ, with the consequence that the conduct of both involved discrimination against her on account of a protected characteristic.
7. The third matter consisted of Mrs. Mulcahy's attempt to resurrect, as a ground of appeal, and for an adjournment of the hearing, her challenge to the order made by the judge for an interim payment on account of her costs liability to Hextalls in the sum of £35,000, payment of which had, she said, inhibited her from obtaining legal advice or representation for the conduct of this appeal.
8. It is convenient to address these three matters in reverse order, not least because that is the order in which Mrs. Mulcahy made her submissions about them.

Interim payment

9. The judge's order, made on 5^th April 2012, required Mrs. Mulcahy to pay the solicitor defendants their costs of the proceedings, subject to detailed assessment if not agreed. By paragraph 4 she was ordered by 4.00 pm on 31^st May 2012 to make an interim payment to the solicitor defendants of £35,000 on account.
10. It is evident from the transcript of the hearing about costs (which followed the handing down of the judge's reserved and slightly revised judgment) that he chose 31^st May as the date for payment because he considered it just to give Mrs. Mulcahy sufficient time to launch an appeal before payment fell due, and as part of that process to obtain a stay of paragraph 4 of his order, if permission to appeal were granted. He said:

"I am not going to require you to pay any interim costs – and of course they have to enforce those costs against you – for a period of approximately two months. Now, that will enable you to apply for permission to appeal. Obviously if you are unsuccessful on that application, then I am afraid the order has to kick in. If you are successful, then the Court of Appeal can consider granting you a stay in relation to the costs, and therefore there would be no enforcement until the appeal is eventually resolved."

11. Relying upon dicta of Jacob J in Mars UK Limited v Teknowledge Limited [1999] 2 Costs LR 44, Mrs Mulcahy submitted that the judge had failed in exercising a discretion as to costs to take all relevant matters into account, and particularly the fact that her straitened financial circumstances would make it very difficult for her to make an interim payment, while at the same time pursuing an appeal. She complained in particular that the judge had prevented her from providing a full description of her financial circumstances, on the basis of his view that, quoting again from the transcript:

"a court at this stage when dealing with an application for costs by a successful party will not make an enquiry into the means of the unsuccessful party…"

12. This is a complaint which Mrs. Mulcahy had included within her grounds of appeal (at paragraph 33) and raised before Hughes LJ. We allowed her to develop a full submission about it because, on one view of an exchange between Mrs. Mulcahy and Hughes LJ at the oral permission hearing, he did not entirely close the door upon it.
13. The judge's deferment of Mrs. Mulcahy's interim payment liability until the end of May 2012 did not have its intended effect. In her Appellant's Notice filed on 10^th May, Mrs. Mulcahy asked both for a stay and for an extension of time within which to pay the £35,000 ordered on account of costs. This request was not adjudicated upon until 8 November, when Lewison LJ ordered a stay pending any renewed oral application for permission to appeal. By that time, unknown to him, Mrs. Mulcahy had already paid the £35,000. Requests by her thereafter for repayment by the solicitor defendants were of no avail.
14. Although the judge's solution for protecting Mrs. Mulcahy from having to make an interim payment on account of costs if she sought to appeal was less than ideal, it did not in my judgment transgress the boundary of the broad discretion as to costs conferred upon him. He plainly treated Mrs. Mulcahy's wish to appeal as a relevant circumstance and must, I think, have assumed, without needing to enquire in detail as to her financial resources, that a requirement to pay £35,000 while seeking to pursue an appeal may well have been likely to make matters more difficult for her. Indeed, the desire of an unsuccessful party to pursue an appeal is not, without more, generally a good reason for a stay of a relevant costs order. In general (but without wishing to be prescriptive) a party is entitled to the fruits of success at first instance (including costs) unless enforcement would inhibit the prosecution of an appeal by the unsuccessful party, or render a successful appeal nugatory.
15. The judge's order would have been sufficient for this purpose if Mrs. Mulcahy had sought to have her application for a stay expedited or, even if she had not, if the Court of Appeal office had perceived that, for the judge's order to be fully effective for its intended purpose, that application needed to be dealt with before the end of May.
16. I do not consider that it would be fair to blame the judge for the outcome, although it would be better in future if stays of that kind were not simply time-limited, but designed so as to endure beyond an initial limited period, if an application for permission to appeal is then made, until the determination of that application.
17. I have not in any event been persuaded that, if Mrs. Mulcahy had been provided a more generous and effective stay, she would have made use of the respite from costs liability by obtaining professional advice and representation for the purposes of this appeal. Nor was that the basis of her objection to the application for an interim payment before the judge. Her submission to him was, quite simply, that the court should take financial circumstances into account when deciding to make an order for interim payment. She had conducted the whole of the trial as a litigant in person, and there was, and is, no reason to suppose that she would have acted differently, but for her payment of the interim costs liability, after it had fallen due.
18. For those reasons I would dismiss Mrs. Mulcahy's application for permission to appeal the judge's interim costs order.

Discrimination

19. Mrs. Mulcahy has been a sufferer from Asperger's Syndrome for the whole of her life. Nonetheless it had not been diagnosed at the time of her divorce, nor had it prevented her from establishing herself in business as a self-employed occupational psychologist while, at the same time, bringing up three young children.
20. Asperger's Syndrome is an autistic spectrum disorder. It is characterised by an impairment of social interaction, difficulty in functioning in social settings, significant difficulty in understanding the needs of other people, difficulty in settings which require the sufferer to cope with non-verbal cues and to understand the motives of other people. When it affects an articulate person with a high IQ, its disabling consequences are frequently invisible to those with whom the sufferer is dealing. This gives rise to particular difficulty for a litigant in person who suffers from this condition. She may present as a highly intelligent, articulate and (for a lay person) competent litigant, while suffering from what may be serious difficulties in understanding and responding to instructions, questions and observations from the bench, difficulties of which the judge may be entirely unaware.
21. Mrs. Mulcahy's condition may adversely have affected her dealings with her solicitors and counsel during her divorce proceedings in 2003 but, as she very sensibly acknowledged in her submissions to us, she could not sensibly allege that her then unsuspected and undiagnosed condition imposed any higher or different duty of care on her legal advisers, although she did suggest that it might have consequences in terms of the measure of their liability for any proven breach of that duty, under the eggshell skull principle.
22. Mrs. Mulcahy did however, at paragraphs 35 and 41 of her amended grounds of appeal, make the criticism that the trial judge failed to take her condition sufficiently seriously, or to make suitable adjustments for it so as to meet her needs, with the result that she did not receive a fair trial.
23. This was not a case in which the trial judge was unaware of Mrs. Mulcahy's condition, of its consequences in terms of her ability to conduct a trial as a litigant in person, or of the remedial measures which could usefully be applied by way of adjustments to address her particular needs. Shortly before the trial, Mrs. Mulcahy sent to the Liverpool County Court, for the trial judge's attention, a written request for adjustments, supported by a copy of a letter from her consultant psychiatrist, together with a tabular summary prepared by a qualified member of a team providing treatment for Asperger's Syndrome. That table provided a most impressive and concise summary of Mrs. Mulcahy's particular difficulties, examples of their manifestation on earlier occasions, and precise recommendations as to how they might best be addressed. Although not expressed in terms as guidance to a judge hearing a claim conducted by Mrs. Mulcahy as a litigant in person, they seem to me to have been well focussed and appropriate for that purpose. The Equal Treatment Bench Book 2013 issued by the Judicial College contains similar guidance about sufferers from Asperger's Syndrome, but in more general terms than the specific advice which Mrs. Mulcahy sensibly provided to the trial judge. It is common ground that he had it available during the trial. The judge referred to Mrs. Mulcahy's condition in paragraph 3 of his judgment, of the risk that it could be masked by her obvious intelligence and articulation, and to the need to bear it in mind when appraising her evidence and her recall of past events.
24. Hughes LJ heard Mrs. Mulcahy's submissions on this aspect of her grounds of appeal. It is common ground that he also had available her consultant's letter. He refused Mrs. Mulcahy permission to appeal on this ground, concluding, with reasons given, that:

"I do not have the slightest doubt that there is no prospect of succeeding in this court on the basis… of failure to take into account the known condition of Mrs. Mulcahy."

Where, as here, a single judge of the Court of Appeal refuses an oral application for permission to appeal on specific grounds, that is generally the end of the matter, in relation to those grounds. Nonetheless CPR Part 52.17(1) and (2) enables the Court of Appeal to reopen the final determination of an application for permission to appeal if:

a.) It is necessary to do so in order to avoid real injustice;

b.) The circumstances are exceptional and make it appropriate to reopen the appeal, and;

c.) There is no alternative effective remedy.

Those are cumulative requirements.

25. In the present case Mrs. Mulcahy sought to reopen her application for permission to appeal on this ground because she said that Hughes LJ's conduct of her oral application for permission had itself been vitiated by his failure sufficiently to take her autistic condition into account, or to make appropriate adjustments for it. In those circumstances we permitted Mrs. Mulcahy to make submissions at length on this point, reserving judgment upon whether we would reopen that refusal of permission.
26. Having considered Mrs. Mulcahy's written submissions about the conduct of the oral permission hearing (in paragraphs 5 to 7 of her document headed "Supplemental Grounds of Appeal"), and her oral submissions, I have not been persuaded that there was any failure on the part of Hughes LJ to take her autistic condition fully into account. I have, for that purpose, read the whole of the transcript of the permission hearing during which, subject to the inevitable constraints as to the time available to the court, Mrs. Mulcahy was given a full opportunity to amplify her detailed written observations by oral submissions. The transcript demonstrates that there was a full and constructive exchange between Mrs. Mulcahy and the court, and that she both followed and responded to questions about her case in a way which demonstrated that she understood what was required of her. It follows in my judgment that the very stringent conditions for the reopening of the final determination of Mrs. Mulcahy's application for permission to appeal on the ground that her autistic condition was insufficiently taken into account by the trial judge, set out in Part 52.17(1), are not made out. I would refuse Mrs. Mulcahy's application to reopen her appeal upon any of the many grounds for which permission was refused by Hughes LJ.
27. For completeness I would add that we have in hearing Mrs Mulcahy's application and appeal also taken into account both the materials about her autistic condition which she put before the judge and the current guidance in the Equal Treatment Bench Book to which I have referred. Mrs Mulcahy was indeed an intelligent and articulate presenter of her case, and we had to be on our guard to make sure that she understood questions and directions from the court, so as to have a fair opportunity to respond to them. I was satisfied that she did so and that, when necessary, she was offered sufficient time to collect her thoughts after intervention from the bench.
28. To her credit, Mrs Mulcahy took the opportunity afforded by her appeal to address the court, both orally and with written material following the hearing, about the forensic difficulties encountered by autistic litigants generally, especially when appearing in person. While grateful for her assistance, our task has of course been to address her particular difficulties, within a range of those affecting others with the same disability.

Failure to inform counsel about Mrs. Mulcahy's significant reduction in income

29. This ground of appeal may be summarised as based upon the following case, hich Mrs Mulcahy says that the judge failed to address:

1) Mrs. Mulcahy's Form E (prepared in February 2003 and delivered, once sworn by her, to Mrs. Boots and then to the court in early April) disclosed her estimated net earnings for the next 52 weeks as £20,600, based upon two years' accounts (i.e. £1,716.66 per month).

2) Mrs. Mulcahy had informed Mrs. Boots of a significant reduction in her monthly earnings between July and October 2003.

3) Nonetheless, and without any instructions from her to that effect, Mrs. Boots included within written instructions to Mr. Campbell in November a statement (backed by a Schedule of Assets) describing her earnings as being £2,200 per month, without any reference to the recent fall in her income during the previous four months.

4) Neither at the conference with Mr. Campbell on 20^th November, nor thereafter, did Mrs. Boots or anyone else from the defendant solicitors (after her departure on maternity leave) inform either Mr. Campbell or Mr. Smyth of the reduction in her earnings which she had experienced.

5) As a result, Mr. Smyth negotiated the compromise and obtained the court's approval of it on the basis of a misunderstanding as to her sustainable earnings, with the result that:

a.) She obtained a financially less advantageous clean break settlement than would otherwise have been available; and,

b.) No protection against insecurity of future earnings was provided to her by the inclusion of a provision for nominal maintenance, so as to enable her to re-apply if, in the future, her earnings failed to recover.

30. I have thus far described Mrs. Mulcahy's case about this in the form which finally emerged during the hearing of her appeal, by which time the essence of her complaint had become focussed not (as Hughes LJ thought) upon a failure properly to instruct Mr. Smyth when Mr. Campbell's brief was returned to him shortly before the trial in December 2003, but rather upon a mis-instruction of Mr. Campbell in November which, it may be supposed, he passed on to Mr. Smyth when returning the brief.
31. In the draft of his reserved judgment delivered to the parties, Judge Wood did not deal with this allegation at all. He did not include it in his summary of the issues which he had to decide (at paragraph 25) and made no relevant findings of fact about it. Upon receipt of his draft judgment, the defendants' solicitors invited him to deal with it, as one of three matters raised in a letter to the court dated 23^rd February 2012. They described it as arising from paragraph 10C of Mrs. Mulcahy's closing submissions, in which she had stated that Hextalls

"…failed to act with due care and attention in relation to her responsibility to obtain and provide financial information to instructed counsel and to the court".

32. The judge therefore prepared an addendum to his judgment, on 12^th March 2012, dealing with this and two other matters. In his view, none of those three matters raised significant issues because "of their lack of causative potency". He interpreted this complaint as aimed at an alleged failure to instruct Mr. Smyth rather than Mr. Campbell. He held that, although Mrs. Mulcahy's financial circumstances had deteriorated, and that a full briefing note on the point might have been helpful, the solicitors sufficiently discharged their duty to Mrs. Mulcahy by arranging for a conference between her and Mr. Smyth on the day before the trial, at which he could make his own enquiries of her, so as to be fully informed. He said that Mrs. Mulcahy's evidence about information given to Mr. Smyth had been "particularly vague" and that there was no evidence that Mr. Smyth had been misled in any way by her Form E. That might be thought to be a less than satisfactory response to the point, in the form in which Mrs. Mulcahy developed it on appeal but, as will appear, I consider that it was a perfectly reasonable response to the matter, to the very limited extent that it had by then been presented to the trial judge.
33. In my judgment this remaining ground of appeal fails, for four reasons. The first is that no case had been pleaded before (or during) trial by Mrs. Mulcahy to the effect that there had been a failure by Mrs. Boots properly to instruct either counsel about a reduction in her income after the delivery to the court of her Form E. All that had been pleaded (in particulars of negligence against Hextalls) was that they had been negligent:

"in failing to notify the court of significant changes in the Claimant's circumstances following the issue of her Form E in accordance with the rules of the court."

In the absence of any allegation that Mr. Campbell or Mr. Smyth had been inadequately instructed about those matters, this plea would meet with the obvious response that it was Mr. Smyth's responsibility to decide, at the trial, what the court needed to be told. The first occasion upon which Mrs. Mulcahy clearly asserted a culpable failure by the defendant solicitors to inform counsel about her reduced earnings during 2003 appeared in her written closing submissions, and even then it was aimed at a failure to instruct Mr Smyth, not Mr Campbell.

34. Mr. Holwill for the defendant solicitors was at pains to emphasise that this was not a mere pleading point, recognising that, had it been, it might have been of limited force against a litigant in person. His point was that, had the defendant solicitors had any inkling that a complaint that they had failed in this regard was to be pursued, they could have sought to meet it by calling Mr. Smyth, who had dropped out of the proceedings shortly before trial because of the settlement of Mrs. Mulcahy's claim against him.
35. Mrs. Mulcahy sought to meet this difficulty by pointing to a general allegation in paragraph 10(c) of her opening skeleton at trial, which referred in purely general terms to an alleged failure "to obtain and provide financial information to instructed counsel and to the court". In my judgment that came nowhere near putting the solicitor defendants upon notice of the point now pursued, focussed as it is upon her fall in income following the service of her Form E.
36. A litigant in person may be forgiven a deficiency in pleading if the relevant allegation is flagged up in her evidence, so that her opponents know the case they have to meet. But (and this is my second reason) the general thrust of Mrs. Mulcahy's own evidence at trial was inconsistent with this allegation. The last full paragraph of her main witness statement (dated 9^th June 2011) alleged against Mr. Smyth that the information available to him demonstrated that Mrs. Mulcahy was

"self-employed with variable income manifestly on a downward spiral",

so that her future income was speculative and she needed a provision for nominal maintenance. Since the income trend in her Form E was upwards, this plainly involved an implicit assertion that Mr. Smyth had been informed about the reduction of her income thereafter. Her evidence during the trial was that she had no reliable recollection of what had taken place during her conference with Mr. Smyth on the day before the ancillary relief hearing. Thus there was, in substance, nothing upon which the judge could have based a finding of fact that the outcome of that hearing had been disadvantageous to Mrs. Mulcahy by reason of any failure to appraise Mr. Smyth (whether directly or through a prior failure to instruct Mr. Campbell) as to her reduction in income during 2003.

37. My third reason is that there was apparently credible evidence before the judge, on what now appears to be Mrs. Mulcahy's central complaint, that it was indeed she who had provided Mrs. Boots with the £2,200 per month income figure which appeared prominently in her written instructions to Mr. Campbell, and in the Schedule of Assets appended to it. The evidence is as follows. First, Mrs. Boots originally prepared the Schedule of Assets with the income amount left blank. She then had a meeting with Mrs. Mulcahy on 7^th November. Her attendance note of that meeting makes no reference to Mrs. Mulcahy's income. A further attendance note of 10^th November records that she amended the Schedule of Assets on that day. The form attached to counsel's instructions, sent on the same day, includes the sum of £2,200 as Mrs Mulcahy's monthly income from her self-employment, to which Mrs Boots added a further £375 by including child tax credit and child benefit, leading to an aggregate monthly income of £2,575. An attendance note of the lengthy conference with Mr. Campbell on 20^th November records a discussion which assumes that, were she to receive an additional £1,200 from her husband, Mrs Mulcahy's monthly income would go up to £3,775, strongly suggesting that the analysis of her income in counsel's written instructions was discussed in Mrs. Mulcahy's presence at that conference, and without demur by her.
38. During the trial Mrs. Mulcahy cross-examined Mrs. Boots along the lines that the monthly income of £2,200 in the written instructions to Mr Campbell had been contrary to her own instructions. Mrs. Boots' oral evidence was that Mrs. Mulcahy had provided that figure to her. The judge found Mrs. Boots to be a generally reliable witness. In the event, he found it unnecessary to make any specific finding about that matter, since it related to no pleaded issue.
39. My final reason is that the judge was, in my view, correct to regard this allegation as being, in his words, of no causative potency. The most important fact about the income of an applicant for ancillary relief in divorce proceedings is her income potential for the future, rather than the specific amounts which may have been derived from self-employment during the months immediately preceding the hearing. This is apparent from the structure of the relevant part of the Form E which requires the applicant to describe self-employment or partnership income by reference to the last two accounting years, and then requires an estimate of the next fifty-two weeks' likely income. That this is what mattered is evident from Mr. Smyth's preparatory notes, in which he derived an amount to be put forward as her self-employment income of £1,871 per month, based upon the trading statements for her business with which he had been provided, and which were included in the bundle for the hearing. He did not use the figure in the Instructions to Mr Campbell, nor the figure in the Form E, although his calculation came very close to the latter. His was an independent analysis, based no doubt upon his own impression as to the most cogent evidence in the materials before the court.
40. Neither Mrs. Mulcahy nor Mr. Smyth (and nor for that matter the court, had the case not been compromised) would have had any reason to think that a recent short-term dip in Mrs. Mulcahy's earnings was the first sign of any long term fall in her earning capacity, contrary to the upward trend disclosed by her trading records, and as reflected in her Form E. Thus regardless whether Mr. Smyth was or was not told about her poor earnings during the summer of 2003 (which, from what Mrs. Mulcahy told us during the appeal, appeared at least to have begun to recover by November and December), it does not seem to me that this material would, even if deployed, had made any significant difference to the outcome of her divorce proceedings.
41. For those four reasons, I consider that this appeal should be dismissed. Each of them is, in my judgment, a sufficient separate reason for doing so. In conjunction, they represent an altogether impossible mountain for Mrs. Mulcahy to climb by way of an appeal.

Lady Justice Gloster :

42. I agree.

Lady Justice Arden :

43. I also agree.