Michaelmas Term
[2017] UKPC 33
Privy Council Appeal
No 0037 of 2016
JUDGMENT
Hurnam (Appellant) v The Attorney General and
others (Respondents) (Mauritius)
From the Supreme Court of
Mauritius
before
Lord Mance
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
30 October 2017
Heard on 27 June 2017
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Appellant
Dev Hurnam
(In person)
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Respondent (The
Attorney General)
Aidan Casey QC
(Instructed by
Royds Withy King)
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Amici Curiae
Aileen McColgan
Kirsten Sjøvoll
(Advocates to the
Board )
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The following jUDgment of the board was drafted by lord
wilson:
1.
Mr Hurnam, the appellant, appeals against the order of the Supreme Court
of Mauritius (Domah and Teelock JJ) dated 24 February 2014, by which it set
aside his motion dated 30 May 2011.
2.
There were eight respondents to the appellant’s motion dated 30 May
2011, namely the Attorney General, the State of Mauritius and six of the judges
of its Supreme Court. According to the appellant himself, he has been bringing
various proceedings against judges ever since 1995; but he has never been
declared a vexatious litigant.
3.
When granting permission for the appeal to proceed, the Board invited
the Attorney General to appear, or be represented, at the hearing of it. The
Attorney General duly instructed Mr Casey QC to appear before it; and at the
hearing on 27 June 2017 he made valuable and conspicuously fair submissions to
it. At the same time the Board indicated that it did not expect any of the
other respondents to appear before it; and they did not do so.
4.
The basis of the Supreme Court’s decision to set aside the motion was
that it had not been endorsed by an attorney and was therefore invalid; instead
the appellant had signed it as an applicant in person.
5.
There is no doubt that, before the Board, litigants are permitted to
institute appeals in person and otherwise to appear in person. But appearances
in person are rare; and the Board is well aware that some litigants in person,
however self-confident, lack the ability to present their arguments to their
best advantage. Thus it was that, having noted that the appellant had, as on
his motion, signed the Notice of Appeal as a litigant in person, the Board,
when granting permission, informed him by letter that, in case he were to find
it helpful, it had located experienced London counsel who had offered to
represent him free of charge. The appellant, however, rejected the offer and
appeared in person at the hearing before the Board.
6.
Shortly before the hearing, concerned that as a result of the
appellant’s rejection of counsel’s offer, all the issues raised by the appeal,
in particular the arguments in support of it, might not properly be presented,
the Board appointed Ms McColgan and Ms Sjøvoll, of counsel, to appear as
advocates to the Board pursuant to Rule 36(1) of the Judicial Committee
(Appellate Jurisdiction) Rules 2009. At short notice they produced extremely
helpful written submissions, upon which Ms McColgan enlarged briefly at the
hearing. The Board is indebted to them both.
7.
The Board is constrained to say that the appellant’s presentation of his
case both in his Notice of Appeal with its 62-page annexe, in his 67-page case,
in his case by way of reply and in his oral submissions at the hearing has been
confused, repetitious and discursive; and it has strayed improperly from the
issues raised by the appeal. The appellant, who over 40 years ago was called to
the Bar by Lincoln’s Inn, is, with all due respect to him, unwise to consider
that, at any rate in relation to claims brought by himself, he is a better
exponent than a dispassionate professional advocate. In the event, however, his
decision to continue to represent himself before the Board has not prejudiced
his appeal. For, as a result, in significant part, of the contribution of Ms
McColgan and Ms Sjøvoll, the Board is satisfied that it is now able to
determine the appeal correctly.
8.
In 2003 the appellant, who, following his call to the Bar of England and
Wales, had been called to the Bar of Mauritius, was convicted of conspiring to
do an unlawful act, namely to hinder the police by fabricating a false alibi
for one of his clients. He was sentenced to a term of imprisonment of six
months. The Supreme Court upheld his appeal against the conviction but in 2007,
by a judgment reported at [2007] 1 WLR 1582, the Board restored it; and the
appellant became constrained to serve the term of imprisonment. In 2008
consequential disciplinary proceedings against him resulted in his being struck
off the Roll of Law Practitioners.
9.
In February 2011 the appellant filed in the Supreme Court a motion for
an order for the re-opening of the criminal proceedings which had resulted in
his conviction. No attorney endorsed his motion: the appellant signed it for
himself and he sought leave to conduct his case in person.
10.
By the motion filed by him, again as a litigant in person, in the
present proceedings, namely that dated 30 May 2011, the appellant sought an
order for the re-opening of the disciplinary proceedings which had resulted in
his being struck off the Roll of Law Practitioners. At the first hearing of the
motion, which took place on 20 June 2011, the court decided to adjourn it
pending the decision of a five-judge court in relation to the motion which had
been filed in February 2011, namely whether the appellant was entitled to
institute it in the absence of endorsement of it by an attorney.
11.
On 1 July 2011, by a judgment delivered by Balancy J on behalf of all
five members of the court and reported as Hurnam v The Director of Public
Prosecutions and others [2011] SCJ 219, the Supreme Court set aside the
motion which the appellant had filed in February 2011. The court held that,
under the Supreme Court Rules 2000 (“the 2000 Rules”), a motion, like a plaint
with summons, had to be endorsed by an attorney before it could validly be
filed in the Supreme Court and that, although the court had a residual
discretion in exceptional circumstances to allow a litigant to institute such
proceedings in person, the appellant had failed to show such circumstances. The
court held that, since the proceedings brought by the appellant had not
properly been instituted, it had no need to proceed to consider a second issue,
namely whether, presumably under section 12(a) of the Courts Act, to grant
leave to the appellant to “conduct his case in person”, ie to address the court
on his own behalf. On 15 December 2011 the Board refused to grant the appellant
leave to appeal against the order dated 1 July 2011; but its refusal would in
no way preclude the Board today from holding, if it thought fit, that the
decision of that date was wrong.
12.
Meanwhile on 14 July 2011, in express response to the decision dated 1
July, an attorney, namely Maître Moutia, filed a “Notice of Appointment” in the
proceedings now before the Board. By the notice, the attorney stated:
“I am henceforth instructed to
appear for Applicant in the above and he will not retain services of Counsel
but will move for leave to appear in person … I have now certified the Motion
paper, the Notice of Motion and the affidavit attached thereto as being true
copies of all the originals.”
13.
On 13 January 2012, in the proceedings now before the Board, the Supreme
Court heard argument on the preliminary issue referable to the validity of the
appellant’s motion. As his attorney had anticipated, the appellant presented
his case in person. The official transcript of the proceedings in court that
day seems to the Board to indicate another confusing presentation of his argument.
Towards the end of it, however, the court helpfully sought to encapsulate it
within four points, which the Board reorders and explains as follows.
14.
The conclusion of the court on 1 July 2011 had been that the requirement
for proceedings in the Supreme Court to be instituted through an attorney save
in exceptional circumstances had been introduced by the 2000 Rules. The court
had proceeded to observe that since 2000 the new requirement had not always
been observed but that it should “henceforth” be applied with due rigour. The
appellant’s first argument was that the new requirement did not therefore apply
to proceedings instituted prior to 1 July 2011.
15.
His second argument was that, if the new requirement applied to his
motion, the appointment of Me Moutia had validated it.
16.
His third argument was that, if the attorney’s appointment had not
validated it, there were exceptional circumstances of which he would wish to
give evidence, namely that (in his own words) “no Attorney is willing to sign
my documents because of the averments … against the Judge[s]”.
17.
His fourth argument was constructed upon a draft of new rules proposed
to be made by the Chief Justice under section 198 of the Courts Act. The draft
does not appear to have been before the court which had delivered judgment on 1
July 2011. The draft rules, to be entitled “Legal Fees and Costs Rules 2011”
and intended to replace similarly entitled rules made in 2000, provided, in
Rule 2, that specified fees for litigating in the Supreme Court should be paid
“by the attorney of the party concerned or by the defending litigant as the
case may be”. The Board will make no further reference to draft Rule 2 because
rules in accordance with the draft have apparently never been made.
18.
Although it had heard the argument on 13 January 2012, the court
delivered judgment on the preliminary issue only on 24 February 2014.
Meanwhile, in August 2012, Me Moutia had died; and it is clear that, by one
means or another, the court had become acquainted with that fact. It did not
refer to his death in its judgment. But on the date of its delivery the senior
of the two judges, namely Domah J (who, so the appellant says, retired from the
Bench on that very day) delivered judgment in two other actions brought by the
appellant, namely Hurnam v Hurrangee [2014] SCJ 66 and Hurnam v
Ramgoolam and another [2014] SCJ 67; and in both those judgments
Domah J noted that Me Moutia had died. Indeed his death was the basis of the
judge’s conclusions in those two actions. In the former Me Moutia had replaced
another attorney who had endorsed the appellant’s plaint with summons and in
the latter he had himself endorsed it; following his death, however, the
appellant had declined to appoint another attorney to replace him. Domah J set
aside both actions on the basis that the attorney was “not a mere ignition key
designed to merely kick-start the process from its cold position and,
thereafter, slip into hibernation” (para 5 of the Ramgoolam case) and
that the appellant’s refusal, in the absence of exceptional circumstances, to
appoint another attorney to replace Me Moutia rendered it unlawful for him to
continue the actions.
19.
The Board must however focus on the court’s judgment of 24 February 2014
in the present proceedings. It comprised nine short paragraphs spread over one
and a half pages. In effect it said no more than that the facts were identical
to those in the action determined on 1 July 2011, namely that the appellant had
signed the motion on his own behalf and that there were no exceptional circumstances
which had justified his failure to have caused it to be endorsed by an
attorney.
20.
It follows that there was no reference in the judgment in the present
proceedings to any of the four arguments which the court had identified at the
hearing two years earlier. Irrespective of the validity of the arguments, the
Board finds it impossible to defend the court’s omission to refer to them. The
Board must make allowance for the long systemic delays which, despite massive
efforts, continue to becalm the justice system on the island. Nevertheless the
unexplained delay in this case, when coupled with the poverty of the judgment
which ultimately eventuated, is unacceptable, even though (as will become
clear) it cannot be said either to have vitiated the decision or to have
prejudiced the appellant.
21.
In all the appellant’s various submissions to it, the Board discerns five
main lines of argument. It does not, with respect to him, propose to address
any of his other points in the light of its conclusion that they are either
irrelevant or not within the grounds of appeal or otherwise hopelessly
insubstantial.
22.
First, the appellant makes a submission which he could not have
made to the court below, namely that its earlier determination dated 1 July
2011 was wrong.
23.
The court’s determination dated 1 July 2011 was reached by reference to
two main features of the 2000 Rules. The first is Rule 3(3) which provides:
“Every plaint with summons shall
be endorsed with the full name, office address and stamp of the plaintiff’s attorney
which shall be the elected domicile of the plaintiff.”
The second is the omission from the 2000 Rules of any
provision analogous to Rule 60 of the Rules of the Supreme Court 1903, which
the 2000 Rules replaced. Rule 60 had provided:
“Any party may make application to
the Court …, praying leave to prosecute, or defend, a suit in his own proper
person; and the Court … may, on sufficient cause shown …, make order that such
party may sue, or defend, as the case may be, in such Court, in person, without
the assistance of an attorney, subject to such conditions as the said Court …
may think fit … to impose on such party.”
The court concluded from the conjunction of Rule 3(3)
with the omission of a provision analogous to the former Rule 60 that no
action, whether brought by plaint with summons (under Rule 2(1) of the 2000
Rules) or by motion (under Rule 2(2) thereof), could normally be instituted
otherwise than through an attorney. It added, however, that the court retained
a residual discretion to allow departure in exceptional circumstances from that
normal requirement.
24.
The appellant contends that on 1 July 2011 the court placed the wrong
construction on the omission of a provision analogous to the former Rule 60.
The effect of the omission, so he contends, was to make it easier, not more
difficult, for a litigant to institute an action otherwise than through an
attorney. From 2000 onwards, so his argument proceeds, a litigant had a right
to do so and no longer needed to seek permission to do so, still less to show
sufficient cause in order to secure it. The appellant contends that his
construction is supported by two rules. Rule 3 of the Legal Fees and Costs
Rules 2000 provides:
“There shall be paid into the
Consolidated Fund, by the attorney of the party concerned or, where no attorney
is employed, by the party, the fees specified in Part A of the Schedule …”
Rule 2 of the Supreme Court (Preparation of Briefs) Rules
2009 provides:
“In any action entered before the
Supreme Court …, the attorney of the party initiating the action shall be
responsible for providing to the Court and to the attorney of any other party
to the action and, in the case of any other party not legally represented, to
the party himself, a duly indexed copy of all documents and records of proceedings
contained in the Court file.”
25.
The difficulty for this part of the appellant’s argument is that Rule 2
of the 2009 Rules envisages that defendants/respondents, to whom different
considerations may apply, rather than plaintiffs/applicants, may be acting in
person; and that Rule 3 of the 2000 (Fees) Rules is not inconsistent with the
additional conclusion of the court on 1 July 2011 that there remained a
residual discretion to permit the institution of an action otherwise than
through an attorney. In order to escape this latter difficulty, the appellant
suggests that the court had no right to infer any such residual discretion. But
the appellant has himself referred the Board to the ancient decision of the
Supreme Court in Quesnel v Dorelle (1867) MR 61 that in exceptional
circumstances, namely when required so as not to defeat the ends of substantial
justice nor to cause “irremediable injury” to a party, the island’s procedural
rules may not necessarily be enforced against him.
26.
The appellant proceeds to contend that, even if the court’s
determination dated 1 July 2011 lawfully analysed the requirements of the
institution of an action by plaint with summons, there was no ground for the
extension of its reasoning to institution by motion. He points out, obviously,
that Rule 3(3) of the 2000 Rules refers only to a plaint with summons. On the
other hand, Rule 5(2) of the 2000 Rules provides that “any process” shall be
drawn up and signed by the party’s attorney; and, analogously, Rule 5(4)
provides that any answer to the process may be addressed “to the attorney who
has caused the process to be issued”. But the validity of the court’s decision
to extend its reasoning to motions is, in the Board’s view, put beyond doubt by
Rule 22, which provides that:
“These rules shall apply to any
proceedings initiated before the Court by way of motion …”
In Piganiol v Smegh (Île Maurice) Ltee [2014] UKPC 1, at para 16, the Board relied on Rule 22 to support a conclusion that the
affidavit in support of a motion had to refer to the matters to which the rules
required reference in any plaint with summons and its accompanying notice.
27.
The Board therefore has no doubt but that the Supreme Court’s
determination dated 1 July 2011 was correct.
28.
Second, on that basis, the appellant nevertheless asks the Board
to construe that determination as being in his favour. He relies, as he did in
the Supreme Court, on the passage in which the court observed that, on several
occasions since the change in the rules in 2000, actions instituted by
litigants in person had wrongly been allowed to proceed in the absence of
exceptional circumstances; and in which it then added:
“This is probably the result of an
oversight but, in our view, the new regime … should henceforth be applied with
due rigour.”
The word “henceforth”, says the appellant, shows that the
new regime was not to be applied to actions instituted prior to the date of the
judgment. But it would be contrary to principle for a court’s interpretation of
long-existing law not to be applied across the board from then onwards,
irrespective of the date of an action’s institution. Indeed, as Lord Mance
observed in the course of the argument, the appellant’s construction of what
the court meant is inconsistent with its setting aside of the motion in the
proceedings before it; and so the construction cannot stand.
29.
Third, the appellant argues, as he did in the Supreme Court, that
the notice signed by Me Moutia on 14 July 2011 validated the motion. It is
particularly unfortunate that the Board should find itself unable to consider
any treatment by the Supreme Court of this part of the appellant’s argument. In
principle two questions might arise. Can any late arrival of an attorney cure
the original defect in the motion? And is it relevant that, since the death of
Me Moutia, the appellant has taken no step to replace him with another
attorney, in particular since the action has never reached the stage of being en
état (in shape to be heard)? The Board considers, however, that it has no
need to answer those questions. For there is an over-arching difficulty about
Me Moutia’s notice: it is that he did no more than to certify that three
documents referable to the motion were true copies of the originals. The
purpose of such a certificate is not obvious to the Board. In any event,
however, what Me Moutia did not do, and may well have been careful not to do,
was to associate himself with the motion by anything equivalent to the
endorsement required by Rule 3(3) of the 2000 Rules.
30.
Fourth, the appellant argues, as he did in the Supreme
Court, that there are exceptional circumstances of which he would wish to give
evidence and which should lead the court to declare the action to be valid
notwithstanding any institution of it otherwise than through an attorney. He
continues to suggest that the circumstances relate to his inability to locate
an attorney prepared to associate himself with the motion. The suggestion again
raises an issue which the Board does not need to resolve. Why, if it be the
case, would no attorney be prepared to associate himself with the motion? The
most likely answer may lie in para 20(a) of the Code of Ethics for Attorneys,
which requires an attorney to withdraw from a retainer “where the client
insists upon his presenting a claim or defence that he cannot conscientiously
advance”. Were such to be the answer, the issue would become: can circumstances
which consist of the appellant’s wish to bring an action which no attorney
could conscientiously advance amount to such circumstances as should lead the
court, exceptionally, to permit its institution otherwise than through an
attorney? The issue, however, does not need to be resolved because, as the
appellant recognises, he has never filed evidence relating to these - or other
- allegedly exceptional circumstances. There were six months between issue of
the judgment on 1 July 2011 and the hearing in the present proceedings: this
was the period in which, most obviously, the appellant could have filed
evidence of exceptional circumstances. No doubt, however, he might even have
sought leave to do so during the two years which then elapsed prior to
judgment. It is too late for him to complain to the Board that he has a good
case in relation to exceptional circumstances; for he has not taken the
opportunity to lay the ground for the argument in any evidence.
31.
Fifth and finally, the appellant argues that the setting aside of
his motion for want of its institution through an attorney infringed his
constitutional rights, in particular his right under section 10(8) of the
Constitution for his case to be “given a fair hearing”. He did not argue before
the Supreme Court that an order to set it aside would infringe his
constitutional rights; and it is both with reluctance and with concern about
the lack of local analysis of it, but in the light of some encouragement on the
part of the advocates to the Board, that it briefly addresses the argument.
There are good grounds for considering that, although alien to the common law
tradition, a requirement for actions to be instituted (and indeed thereafter
conducted) through an attorney serves the ends of justice. At a conference in
Astana in October 2016 Dr Kilian, of the University of Cologne, delivered a
paper entitled “Representation in Court Proceedings - Comparative Aspects and
Empirical Findings”.
He explained that “jurisdictions built on the Roman Law System consider a
mandatory legal representation in court as a prerequisite for effective court
proceedings, the individual’s success in litigation and thus ultimately, for
justice”; that “court proceedings can be slowed down and stalled by parties who
are not familiar with procedural rules”; and, as one of his examples highly
relevant for present purposes, that in actions brought in a French Regional
Court the parties must generally be represented by an advocate. Indeed (the
Board adds) they are also generally required to be represented before the
Conseil d’Etat and the requirement does not infringe their right to a fair
trial: see the decision of the European Court of Human Rights in GL and SL v
France Reports of Judgments and Decisions 2003-III, p 325. Dr Kilian concluded
as follows:
“Although mandatory representation
in court proceedings is restricting one’s self-determination, positive effects
of representation by lawyers as proven by empirical research outweigh those
restrictions.
Empirical research from across the
globe shows that representation in court …
–
has a positive impact on case outcomes
–
guarantees a better quality of adjuration
–
allows the courts to operate more effectively by speeding up case
disposal …”
32.
The decision under appeal relates only to the institution of
proceedings; and Rule 3(3) of the 2000 Rules, on which it was principally
based, addresses only that initial stage in the life of an action. In its
judgment dated 1 July 2011 the Supreme Court declined to consider whether, if
his motion had been validly instituted through an attorney, the appellant might
have secured leave to address the court on his own behalf. So the scope of the
decision under appeal is limited; and its effect is substantially softened by
the court’s recognition, following its decision on 1 July 2011, of a power to
depart in exceptional circumstances from the general requirement of institution
through an attorney. Obviously, however, that requirement does not apply to
defendants/respondents; and the Supreme Court had no need to consider whether
any step which they might wish to take in an action is required to be taken
through an attorney. If the law does not make any such requirement of them,
then, submits the appellant, there is no equality of arms between
plaintiffs/applicants on the one hand and defendants/respondents on the other
and thus, again, no “fair hearing”. The Board has no need to address this
hypothetical submission but observes that, in relation to the need for the
discipline of an attorney, there may well be a valid distinction between the
position of the party who opts to bring a claim before the court and that of
the party who has no option but to address it.
33.
So the Board dismisses the appeal. The Supreme Court was right to set
aside the appellant’s motion and correctly saw no need to address its merits,
including whether it amounted to an abuse of the process of the court for the
purposes of Rule 15(3)(b) of the 2000 Rules.
