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 KNOWLES)

		Royal Courts of Justice Strand London, WC2A 2LL
		9 March 2016

1. LORD JUSTICE McFARLANE: This is an application for permission to have a second appeal brought by Mr Crutchley who has been the Claimant in personal injury proceedings which have been of long standing.

1. The case arises from an appalling incident in June 2006 when Mr Crutchley and I think members of his family were in their car. Without any fault whatsoever by them, they were struck as a result of two young men racing on the road. Both of those men were subsequently convicted, as I understand it, and sentenced to terms of imprisonment. Mr Crutchley was seriously injured. In due time, he issued civil proceedings for compensation against the Defendants, effectively against their motoring insurers.
2. The matter came on for trial before Her Honour Judge Hampton QC in 2010 and the only issue at trial was the amount of compensation to which Mr Crutchley was to be entitled. Much of the level of quantum and compensation related to his loss of earnings since the accident and his potential loss of future earnings. So his ability to function and be mobile was important.
3. As it happens, on the second morning of the trial on the way to court, counsel for the Defendants and Mr Crutchley passed through Birmingham New Street railway station. As a result of what he thought he saw, counsel reported to the court that he considered Mr Crutchley was more mobile than the Claimant's evidence suggested. Counsel withdrew from acting in the case because he perceived, as was the case, that he might well then become a witness for the defence. The trial, therefore, had to be aborted.
4. Since then, it has been mired in a series of interlocutory hearings and procedural orders which, in the event, led to the whole action being struck out by an order of Master Eyre made in August 2012. It is against that outcome, the striking out of the action as a result of his default from an earlier costs order, that Mr Crutchley now seeks to appeal.
5. Having set the scene, it is necessary to explain that his appeal has taken time to come on. He indicated in procedural terms a desire to challenge the order by issuing an application on 21 August 2012. Permission to appeal was given shortly thereafter at a hearing before Rabinder Singh J on 19 September 2012, but the appeal did not spring into full procedural life until 2014, by which time Mr Crutchley once again achieved the services of solicitors and counsel on his behalf. The appeal was heard in February 2015 by Knowles J and it was dismissed.
6. The application to this court is, therefore, for a second appeal. Permission for the second appeal was refused by a decision by Tomlinson LJ on 13 August 2015. He refused permission, firstly, because he considered on the ordinary basis that the appeal had no reasonable prospect of success. But secondly, on the enhanced basis required for second appeals, Tomlinson LJ considered that no point of principle or practice was raised in the proposed appeal and there was no other compelling reason for the Court of Appeal to entertain it. Thus, this morning has been the oral renewal hearing before me.
7. How is it that a man who should be entitled to full compensation for the appalling circumstances that he experienced as an innocent victim has reached the state of affairs that I have described? Well, the answer in short terms is that it arises out of a dispute over the disclosure of documents.
8. The position had been, in the lead up to the aborted 2010 trial, that there had been disclosure of documents, albeit, it seems, on occasions only as a result of orders for disclosure being made by the court. Indeed, there had been a further disclosure of documents by the submission of a list from the Claimant's solicitors on 28 March 2011. That list included some 105 individual documents.
9. However, by 2012 the Defendants' solicitors were seeking further updating disclosure. They contacted Mr Crutchley to seek disclosure. He by that stage was acting as a litigant in person.
10. The reason for parting company with his legal representatives was that in consequence of the information that defence counsel had given to the court on the morning of the second day of the hearing, the insurers that had been providing legal cover for Mr Crutchley considered that he had been guilty of "fraud". They therefore discontinued cover under the policy. He challenged that and took his challenge up through the Legal Ombudsman process. In the event, as I have indicated, by 2014 he achieved the reinstatement of his cover, it being accepted that he had not been guilty of any fraudulent behaviour. But at the time period that the matters that concern court occurred, he was in that limbo period as a litigant in person for a period of some 18 months or so.
11. The other side asked for disclosure. Apparently, in a witness statement dated 13 February 2012, Mr Crutchley "declined the application for a further list and asked the court to award him costs." That quotation is taken from paragraph 6 of the judgment of Knowles J. Neither Mr Crutchley nor I unfortunately have a copy of the witness statement of 13 February 2012 available today.
12. But he confirms to me his general position at that time, which was that he had already given substantial disclosure. Even after his solicitors came off the record, he had co-operated with the Defendants by giving them authority to deal directly with his employers in Australia where he was living and working at that time and that they had received information from that source.
13. He simply as a litigant in person was wanting to deal with matters in an ordered way and did not wish to deal further with disclosure before succeeding in achieving the reinstatement of legal representation. He said in terms in his statement that "once I have got legal representation, then full disclosure will happen and I have always followed the advice and guidance of my legal advisers in this matter." So at that time, February/March 2012, his stated position was not to agree a requirement for further disclosure.
14. The defence had put in an application for disclosure. They therefore pursued that application to a hearing. The hearing took place before Deputy Master Eyre on 21 February 2012. Although the Master made other case management directions at the end of that hearing, having read the transcript, the principal issue that dominated the hearing was the question of disclosure.
15. On that topic, the transcript shows that Mr Crutchley was not actually objecting to disclosure. He told the Master of his past co-operation with disclosure. He accepted the benefit to him of making disclosure because it could do nothing but enhance his ability to persuade the court of the real value of his claim at the end of the day.
16. A notable feature of the hearing before Master Eyre in February 2012 is that the Defendants' case was mounted at a high level by their counsel, Mr Paul Evans. He told the Master, and indeed this was a theme throughout his oral submissions to the court, that Mr Crutchley was a serial perpetrator of failed disclosure in that on more than one occasion Mr Crutchley had failed to give proper disclosure.
17. Moreover, Mr Evans seemingly brandished a single piece of paper and said that there had been only one document disclosed since the trial in 2010. That was wholly incorrect. Mr Evans should have known and his solicitors should have known that they had taken delivery of the list of documents sent to them on 28 March 2011, reciting some 100 documents, that being 11 months before the hearing.
18. It is accepted now, after that hearing has passed, by the defence that what they said will have misled the court. However, counsel for Mr Crutchley at the hearing before Knowles J, and indeed Knowles J, accepted that that was an innocent misleading of the court and not a deliberate tactic by the defence.
19. Be that as it may, the conclusion of Deputy Master Eyre at the end of that process was to make an order for further disclosure. It provided for Mr Crutchley to file an updated list of documents within 28 days. The second feature of the order is in paragraph 12. It provided that Mr Crutchley should pay the costs of the application that day and that he should immediately within 28 days pay interim costs to the Defendants assessed in a total sum of £4,000.
20. So far as disclosure is concerned, Mr Crutchley gave the required disclosure in time by 16 March 2012; indeed, ten days or so before the Master's order was in fact actually drawn up and issued.
21. He also indicated to the court on 6 March, I think it was, that he wished to challenge the order for costs. The court told him, and he confirmed this to me this morning, on 18 April 2012 that he could not apply back to a master to vary the order for costs, but that he had to appeal. No appeal was issued at that time.
22. Matters moved on. He did not pay anything towards the outstanding costs order. The matter came back before Master Eyre on 17 August 2012 and the Defendants' application for there to be an unless order was granted. The terms of that order were that Mr Crutchley had to comply with the costs order within seven days after the service of the August order upon him. In default, the action would be struck out and dismissed with costs.
23. Mr Crutchley was given two days after the service of the 17 August 2012 order to apply to vary or set it aside. That is what he did on 21 August where he issued an application in the appropriate form for setting aside of the costs order. However, it seems that the paperwork may not have caught up with the substantive action. An order was made on 4 September 2012 by Deputy Master Eyre giving effect to his earlier unless order and striking the action out through non-payment.
24. The next and last significant step was that fortuitously, I think it must have been, the case came before Singh J on 19 September 2012 to consider the listing of the trial for November. Part of the frustration in reading these papers is that the case was so close to coming on for trial when all these events happened. In the course of that hearing, Mr Crutchley, still as a litigant in person, explained to the judge that he wanted to appeal against the costs order made against him. Permission to appeal was given by Singh J. As I have explained, albeit after a long delay, that is the appeal that was heard.
25. After that long introduction, what follows is relatively short. The grounds of appeal that are raised by counsel on behalf of Mr Crutchley in front of Knowles J relate to the two components of disclosure and costs that I have explained. Knowles J dismissed each of those grounds. He does so at paragraph 17 of his judgment:

" 17. My reasons are as follows. These traverse the areas covered by the five grounds of appeal but do so in an adjusted order and, on occasion, taking points in combination. I have had close regard to the overriding objective and to the considerable periods of time when Mr Crutchley has had to deal with the litigation as a litigant in person and without the professional assistance available throughout to the defendants.

(i) By the date of the issue of the application for disclosure that came before Master Eyre, Mr Crutchley was in arrears in relation to his continuing duty of disclosure.

(ii) Mr Crutchley was given the opportunity in advance of the application heard by Master Eyre to agree to provide further disclosure voluntarily but Mr Crutchley declined that and, indeed, opposed the order sought.

(iii) Although Master Eyre was given a misleading account by the legal representatives for the defendants of the disclosure history, there was still disclosure that had not been given by Mr Crutchley.

(iv) The order made by Master Eyre on disclosure was the correct order in the circumstances, notwithstanding the misleading account he had been given. The key question was whether disclosure was outstanding and the answer was yes, even if less disclosure was outstanding than would have appeared to Master Eyre. I do not overlook that the date for the disclosure period would, had matters been fully and correctly disclosed to Master Eyre, have had a commencement point of 2011 rather than 2010, but still material disclosure was outstanding.

(v) Making all proper allowance for the fact that the claimant proceeded as a litigant in person, I am satisfied that he fully appreciated that he had a duty to provide disclosure, that it was a continuing duty, that he was given adequate time to provide that disclosure and that he delayed that provision at his risk of an order being invited to compel him to do so.

(vi) Mr Crutchley was entitled to a proper opportunity to argue costs before Master Eyre. However, having heard myself the points that he would have argued had he been given that opportunity, in my judgment the Master made the proper order in the result. In fact, in my view, the omission on the part of the Master to give Mr Crutchley a proper opportunity to argue costs arose because Master Eyre saw in his experience that the order that would be made in relation to costs was almost obvious. "

It is against that outcome that permission to appeal is sought.

26. The grounds of appeal, again drawn by counsel representing Mr Crutchley, are fourfold. Firstly, that having found that Deputy Master Eyre was seriously misled by the Defendants' counsel and solicitors on an issue material to the exercise of discretion, the judge was plainly wrong in finding that the appropriate costs order would still have been that the Claimant pay the Defendants' costs of the application.
27. Secondly, in exercising his discretion afresh, the judge failed to give any or sufficient weight to the fact that the Claimant had made considerable disclosure already in the case and that this was an updating exercise.
28. Thirdly, the judge failed to give any or any sufficient weight to the fact that the hearing before the Deputy Master was a case management hearing or should have been treated as such for costs purposes.
29. Fourthly, he failed to give due weight to the fact that the Claimant was a litigant in person.
30. Although he is now once again acting in person, Mr Crutchley adheres to those grounds of appeal. He has, in my view, helpfully set out in clear terms his account of the case and his account of the merits of his application in a witness statement submitted last week to this court dated 25 February. I have read that document and I have heard him very clearly and eloquently today explain his position.
31. I have no difficulty in understanding what I have referred to as "the big picture". This is a man who on all accounts and without any doubt has suffered a life changing event through no fault of his own as a result of the incident in 2006. The law ordinarily would hold that he is entitled to be fully compensated for his loss and the court proceedings should just be, as Her Honour Judge Hampton correctly said, a fair process of evaluating just what that loss should be. Yet now today he sits before this court having totally lost the chance to pursue those matters and receiving not one penny in compensation for the injuries that the criminals, as he rightly describes them, the Defendants, have caused him to suffer.
32. He no doubt considers that there has been a wholesale injustice in what has happened, compounded, in his view, by the fact that the tactics of the defence solicitors have caused the situation that I have described. Principal amongst those tactics I think he would list the misleading of Master Eyre as to his apparent "failure" to give disclosure, but he has told me about other events during the course of time when he has felt vulnerable and bullied, to use my word when I listened to him but I do not think he would disagree with that, by the interventions of the solicitor for the defence.
33. I have all that loud and clear. It makes the job I have today difficult because I have to approach this as a lawyer looking at the process that has gone on before Master Eyre and then pursued before Knowles J within the context of the civil procedure scheme and the Civil Procedure Rules. I have to decide whether there is a reasonable prospect of this appeal succeeding, but moreover, whether it raises an important matter of practice or principle or there is some other compelling reason.
34. Having looked at it with care and looked at it with eyes I can assure him which are favourable to his position given what I have described as the big picture, I am afraid I cannot see how permission to appeal can be granted in this case. I will give my reasons shortly.
35. It is plain, and he accepts, that he was not actually agreeing to give further disclosure in the early months of 2012. It was, therefore, justified and necessary and an ordinary part of procedure for the Defendants to apply for an order of disclosure which came on before Master Eyre. The result of that inevitably was an order for disclosure.
36. The hearing took place because he was refusing to agree to disclosure. He lost on that point. The ordinary consequence of losing at an interlocutory stage in a case such as this is an order for costs. That is the order that was made, albeit without hearing from Mr Crutchley, but as both Knowles J and Tomlinson LJ have said, nothing a litigant could say in those circumstances would alter the outcome in relation to costs.
37. A further and, in the context of it leading to the striking out of the action, obviously crucial element was the order for an immediate interim payment of £4,000. Again, in the climate of the Civil Procedure Rules as they have been since they came in in early 2000, it is that these interim costs orders are backed up by an immediate requirement to pay. A "pay as you go" approach is normally deployed.
38. Only if there are particular circumstances, such as an inability to pay at that time, will the court not make an immediate interim payment. Ability to pay is not raised as one of the grounds of appeal before Knowles J or before this court and was not raised, it seems to me, before Master Eyre. So the order for interim payment was an ordinary order.
39. The case put forward by counsel, first of all before Knowles J and again understandably before me today by Mr Crutchley, is that Master Eyre would not have made the costs order and would not have made an order for immediate interim payment for costs if he had known the true position, which was that this is a man who was freely giving disclosure in the past, was opening up direct contact with his Australian employers and was not a culprit, to use a pejorative word, in relation to disclosure at all.
40. I do not accept that. Those are correct descriptions of Mr Crutchley's position, namely that he was not a culprit in relation to disclosure. He told Master Eyre that in detail in the course of his submissions to the court. He explained about the Australian employers, for example. He was not being penalised because of the unwarranted negative view that the Defendants sought to portray. This was simply an ordinary order.
41. In relation to costs, judges have a wide discretion in any event. To succeed on appeal, he would have to show that the judge had gone outside the margin of discretion. The circumstances of the case, I am afraid, wholly fail to achieve that. The judgment of Knowles J to which I have already made reference shows the clear view that that highly experienced judge took to this issue. It is also the view of Tomlinson LJ.
42. Sympathetic though I am to Mr Crutchley's overall position, I would not be doing him a favour if I granted permission to appeal. The proposed appeal has no prospects of success. If I granted permission, there simply would be another day in court at which he would not succeed on these points and he would be yet more vulnerable to a further application for costs made by the defence. So with a clear but heavy heart, I refuse permission to appeal.