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Case No: PTA 99/6441/2
(in MA 832464)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE TETLOW
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 16th February 2000
B e f o r e :
LORD JUSTICE HENRY
and
LORD JUSTICE POTTER
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PAULA
MAY GLADYS DOUGLAS
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Applicant
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-
and -
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CLIFFORD
COPPOCK & CARTER (a firm)
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Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Ms Douglas appeared in person
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:
Ms Douglas, the applicant, brings this application for permission to appeal
against His Honour Judge Tetlow's strike out (on 23rd February 1999) of her
claim in negligence against a firm of solicitors, who advised her in relation
to an action she was bringing against the College of Law, Chester, at which she
was seeking to qualify as a solicitor. This application is linked with, and
was originally heard with, two other actions. First, her claim against the
College of Law (Court of Appeal Reference PTA 99/6440 in MA 824653). Second,
her claim against the Law Society (Court of Appeal Reference 99/6439 in MA
828766).
Judge Tetlow struck out both of those actions by his judgment of 2nd February
1999, three weeks before he struck out this action.
Ms Douglas sought permission to appeal all three strike outs, and it was
sensibly decided that all three permissions to appeal should be dealt with
together. Ms Douglas addressed us on all three applications on 28th October
1999. At this hearing she presented the Court with certain new material,
together with detailed skeleton arguments. Accordingly, we reserved judgment
in order properly to understand the complicated history of the many legal
actions commenced by Ms Douglas in relation to essentially the same facts. On
17th December 1999 we refused Ms Douglas permission to appeal against two of
those strike-outs (MA 824653 and MA 828766). The judgment in those
applications should be filed as Appendix 1 to this judgment. I will not repeat
in this judgment what may be found there.
This application became separated from those other two because Ms Douglas
produced neither the transcript of the judge's judgment nor an approved note of
its contents. She did however produce an unapproved note of it taken by the
solicitor acting for her, together with an accompanying letter from him with
the disarming comment:
"I did take brief hand-written notes of the judge's decision but as my writing
is very bad I'll merely set out a few of the points made although he was very
meticulous in going through each and every allegation and counter-allegation by
reference to the bundle of documents filed at the court."
In those circumstances we decided that the proper disposition of this
application required a transcript of the judge's judgment, and when it turned
out that a transcript could not be speedily obtained because the court had
mislaid the tape, we gave judgment in the other two linked appeals. However,
the judge himself had full notes and sent my clerk on 20th January 2000 a fair
copy of those notes, from which we have worked. That judgment forms Appendix 2
to this judgment. We have not had before us the bundle of documents that was
before the judge and to which he referred. However at and subsequent to the
hearing Ms Douglas either handed in or sent to us various of those documents
which we have referred to as necessary and appropriate. We make that latter
qualification because of the limited utility of such material on a strike-out
application.
The original application for the strike out of Ms Douglas's claim was on the
grounds that:
(i) it disclosed no cause of action, and
(ii) it was frivolous and vexatious and an abuse of the process of the court,
and should be struck out under the inherent jurisdiction.
This is a case where both parties have put in some documents and some
evidence, and we remind ourselves that such evidence is not admissible on the
first head of strike-out, that the claim discloses no cause of action (RSC
Order 18, rule 19(1)a).
The applicant requires permission to appeal out of time. Her time for
appealing would have expired four weeks after the 23rd February. Her Notice of
Appeal is dated 14th May, and amongst her reasons for seeking an extension are
that she could not afford the transcription of the judgment. The appeal was
not set down until 17th June, so at best the application was just under two
months late, and at worst three months late. In deciding whether an appeal
should be granted, this Court must have regard to the length of the delay, the
reasons for that delay, chances of any appeal succeeding and the prejudice if
any to the prospective respondent if the appeal is allowed. The evidence filed
is admissible on the second head of strike out, and the question of obtaining
permission to appeal out of time.
The events with which we are here concerned relate to a visit that she made to
the solicitors on or about 19th August 1996. At that time the factual context
was this. Ms Douglas, having obtained a 2:2 law degree from Lancaster
University, had started her LPC at the College of Law, Store Street, London in
January 1995, and transferred from there to the College of Law's Chester Branch
in September 1995. In her first week there (on 8th September 1995) a lecturer
on the course, when referring to a difficulty in the problem he was explaining
to the class spoke of it as being "the nigger in the woodpile". That remark
was clearly potentially offensive. Ms Douglas complained to her personal
tutor, who reported it to the Course Director. Ms Douglas did not want to make
a formal complaint, but wanted the matter left on the file. The lecturer
apologised to Ms Douglas and also reported the matter to the Course Director.
There that matter rested for some eight months, during which time Ms Douglas
failed some examinations, and sought in vain for dispensation from passing
them.
On 12th January 1996 the College of Law wrote to Ms Douglas to tell her that
she had failed the first tranche of her examinations. She applied to the
College for dispensation from the requirement to re-sit her failed assessments,
on the grounds that she had been involved in a number of car accidents, and she
was suffering financial hardship. The head of her part-time course replied to
her in February 1996 saying that her proposal was unlikely to be met with
favour. In March 1996 she failed further papers; she applied again for
dispensation from the assessments, again unsuccessfully. Her grounds were the
same, namely the car accidents and financial hardship. In May of 1996 she
wrote to the Board of Management hinting that the atmosphere in the College was
not helpful to a member of an ethnic minority, and raising her complaint about
the remark made by the lecturer.
The Chairman of the Board of Management replied: he told her that he had
caused the lecturer to be severely reprimanded, and that the College of Law had
been told to ensure that no lecturer used racially offensive language in
future. He explained that he could not award her a pass, but told her of the
discretion held by the Board of Examiners to award a pass or allow extra
attempts if there had been impairment through illness or otherwise of a
candidates performance. Her application of 17th June 1996 for dispensation was
again unsuccessful, being refused on 2nd August.
In mid-August she did two things, she visited the defendant solicitors and saw
a trainee solicitor, Mr Emmett. They had acted for her in another matter, but
this was the first time they were involved in relation to the College of Law.
I will return to that visit after completing the chronology. At the same time
she enlisted the assistance of the Manchester Council for Community Relations,
Mr Vitti. He wrote on her behalf, raising the question of whether there was
racism in the College of Law.
She also applied for help to the Law Society, who wrote saying they had no
power to intervene. She repeated these requests on a number of occasions, and
they repeated their refusal.
Ms Douglas re-sat her examinations on 27th and 28th August.
In September 1996 the claimant again applied for dispensation from the
assessments, this time for the first time providing some medical evidence - a
letter from her GP saying that he understood she had been involved in six road
traffic accidents in the past year, that she had suffered from headaches and
loss of concentration during her exams, and concluding:
"I think she was suffering from stress following these accidents ...."
On 21st October 1996 she was sent a letter telling her that she had failed the
resits, but the Board had decided to allow her to re-sit again, provided that
before resitting she submitted medical evidence that she was fit to resit. She
appealed against that decision unsuccessfully. In November she complained
about the very rigid, harsh, unfair and unreasonable marking of some of the
papers. Meanwhile, at Mr Vitti's request, the College of Law had shown him the
applicant's papers. They also explained the anonymous system of marking of
those papers. As a result of what he was shown, Mr Vitti pronounced himself
satisfied with the marking process. Ms Douglas responded by writing to
the Director the Manchester Council for Community Relations to complain of Mr
Vitti.
That relatively detailed statement of the facts is derived from the judgment
of the Industrial Tribunal in proceedings instituted by Ms Douglas on 26th
March 1997. She started proceedings against the College of Law complaining of
"racial discrimination and undue pressure". The proceedings were started out
of time, and the tribunal found that there was no reason in justice or equity
to enlarge her time for presenting a complaint. They gave a detailed factual
judgment and their conclusion is at paragraph 9 in our judgment of 17th
December 1999 (Appendix 1). This was the first of three legal applications
against the College of Law relating to the same facts. The second was another
application to the Industrial Tribunal in, May 1998, and the third was the
County Court action against the College of Law in MA 824653 which stands struck
out as a result of our judgment of 17th December 1999. Here I repeat the
matters set out in that judgment (Appendix 1, paragraphs 8 to 28), in
particular the judge's finding at paragraph 17 that the claim was an abuse of
the process of the court.
In her affidavit in support of her claim against the solicitors, Ms Douglas
sets out her account of her visit to their offices in August 1996, telling them
of her complaint in relation to the lecturer and his remark and she states that
she
"made contact with the defendant to seek advice on my position in law in
relation to that incident, the failure of the College to invoke their formal
student's complaints procedure, advice also on the failure of the College to
adequately and appropriately afford me counselling and student support
facilities and advice on my failing the first sitting of my first year's exams
etc."
She says that for this she signed the Legal Aid Green Form. The solicitors
dispute this. They say all work for her in this matter was done pro bono, and
that they have neither sought nor received money for it.
Mr Emmett reported to her by letter of 29th August:
"Refer to your recent attendance to our office with our Mr Emmett, a Trainee
Solicitor, where we were consulted by you with relation to incidents of Racial
Harassment experienced by you by a lecturer at The College of Law.
We were given copies of correspondence that you had had with The College of
Law, and upon reviewing this correspondence, we advise that we felt you may
well have a meritorious case to pursue for racial harassment. However, we
advise that we will not be able to represent you in a tribunal in this matter
as we will be unable to obtain Legal Aid for you. We therefore advise that you
contact your local Citizen's Advice Bureau who may be able to assist you will
the matter.
In the circumstances, unless we hear from you to the contrary within the 14
days, we will assume that there is nothing further that we can do for you and
we will close our file and papers.
While writing, we inclose our Proforma notes in relation to green form and
Client Care & Conduct."
In my judgment, that letter shows clearly what happened. Ms Douglas sought to
instruct the defendants in her racial harassment claim against the College of
Law. They refused on the grounds that legal aid was not available in the
Industrial Tribunal, and they knew Ms Douglas had not the means to instruct
them privately. So they declined the instructions, and indicated that they
would close their file after 14 days. They did not hear from Ms Douglas again
until March 1997, when on 19th March she wrote a letter to the solicitors
instructing them to apply for legal aid to bring "... a contract and negligence
action against the College of Law". That application for legal aid was made
and was refused, initially and on appeal.
I get two things from that letter. First, that instructions to act in
relation to the offensive remark were declined, for a good reason. Second,
that no wider instructions as to the breach of contract matters were given or
accepted. There is no mention of them in Mr Emmett's letter, noting was ever
done on either side which suggests that such instructions had been given. They
were not given until March 1997. When they were given they were promptly
implemented, but legal aid was refused.
I read that letter as declining instructions rather than positively advising
either that the Industrial Tribunal was the recommended remedy, or that the
County Court was not. In fact it seems to me arguable that both courts had
jurisdiction.
Dealing with the Industrial Tribunal first. Here the complaint would be of
discrimination under Section 1(1)(a) by a qualified body, the College of Law,
under Section 12, and such a complaint can be presented to the Industrial
Tribunal under Section 54 with the Section 55 remedies available. That is the
route Ms Douglas in fact took, but she was out of time. The case of
Bohun-Mitchell -v- Common Professional Examination Board and Council of
Legal Education [1978] IRLR 525, while being a very different case, is
illustrative of this route.
The route to a claim before the County Court is not so clear. It depends on
Section 20 treating the College of Law as a provider of services, and the
argument (exiguous as it may be) would be that making a racially offensive
remark in a lecture when a black person is present is a deliberate omission to
provide her with a lecture of the like quality as is normal for other (white)
people. That, by Section 57(1)(a) would be actionable only in a designated
County Court.
But whichever of those routes were taken, in either the case the complainant
would be faced with difficulties arising from delay - action in an Industrial
Tribunal must be taken within three months, and in the County Court within six
months. And that delay had been comprehensively covered first in the
Industrial Tribunal, and then before the Employment Appeal Tribunal. I refer
to the judgment striking out the College of Law action, Appendix 1. To allow
that action to proceed would have been an abuse of process. There could never
have been a winning case against the College of Law, and so even if Mr Emmett
had been negligent (and in my judgment the clear terms of his letter of 29th
August shows he was not) no damage would flow. And legal aid would never have
been obtained against this background.
Ms Douglas takes another. As his letter makes clear, Mr Emmett was a trainee
solicitor. Ms Douglas relies on Section 25 of the Solicitor's Act:
"No costs in respect of anything done by an unqualified person acting as a
solicitor shall be recoverable by him ... in any action suit or matter."
Declining instructions on behalf of his principal is not "... acting as a
solicitor ..." within the meaning of that section.
In any event, no payment was sought or expected for the work, and the costs
orders made by the judge were not for anything done as a solicitor by Mr
Emmett; they were costs incurred in resisting Ms Douglas's unsuccessful
action.
One final point. Ms Douglas pleads a third claim, headed:
"3) Breach of Law Society's Guide on the Conduct of Solicitors in Private
Practice Code and Anti-Discrimination Code."
Judge Tetlow dealt with this matter at the beginning of his judgment, pages 1
and 2. Ms Douglas's advocate conceded that the judge would have no
jurisdiction in any event. On this head of claim, I need only say that the
judge was right for the reasons he gave.
Accordingly, I would refuse permission to extend time for appealing, and
dismiss this appeal.
LORD JUSTICE POTTER:
I also agree.
Order: Appeal dismissed.
APPENDIX 1
APPENDIX 2
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