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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bates v London Borough Of Croydon [2001] EWCA Civ 134 (23 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/134.html Cite as: [2001] CP Rep 70, [2001] EWCA Civ 134, (2001) 33 HLR 70

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HIS HONOUR JUDGE CRUSH)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd January 2001

1. THE VICE-CHANCELLOR: Lord Justice Mance will give the first judgment.
2. LORD JUSTICE MANCE: On 14th February 2000 at Croydon County Court District Judge Parker ordered the appellant to give up possession of her home at 26 Croydon Grove, Croydon. The order was unconditional. The appellant appealed against that order on 28th February 2000 by lodging an application notice at the Croydon County Court.
3. The matter came before His Honour Judge Crush on 3rd July 2000 when he formed the view that, before he could entertain any appeal, permission to appeal was required under Part 52 of the Civil Procedure Rules and section 54 of the Access to Justice Act 1999. He considered the matter in that light, and in a judgment of the same date came to the conclusion that the appeal had no real prospect of success so that permission to appeal should be refused.
4. Before us it is common ground that that was an incorrect approach on the part of the circuit judge. The provisions of section 54 of the 1999 Act and of Part 52 of the Civil Procedure Rules were not in force. This was an appeal lodged prior to 2nd May 2000. Accordingly, it ought to have been viewed under the previous provisions of the County Court Rules particularly the rules governing interlocutory appeals in order 13 and 37(6) of the County Court Rules 1981. It is also common ground that those provisions meant that, insofar as the appellant's appeal from the district judge related to interlocutory matters, it was incumbent upon the circuit judge to hear the matter de novo and make such decision as he considered just, whilst of course giving due weight to the exercise of discretion by the Court below. If, on the other hand, the matter was an appeal from a final judgment order, it was incumbent on the circuit judge to treat the appeal in the same way as an appeal from a judge to the Court of Appeal would have been treated; in other words, the ambit of review would have been considerably narrower.
5. Before us it is in effect common ground that the district judge's decision which related to matters of adjournment was effectively of an interlocutory nature. The question now arises how we should approach this appeal, bearing in mind that the circuit judge, applying principles of the CPR which were not applicable, did not ever embark on the substantive hearing of the appeal. His conclusion that there was no real prospect of success did not necessarily mean that there was no possibility of hearing an appeal under the old rules. It was again effectively common ground before us that "no real prospect of success" is a test intended to prevent, or capable of preventing, certain appeals that could previously have been pursued without restriction. Under the old procedure appeals could be pursued unless they were hopeless or abusive.
6. It was also common ground between counsel that, rather than consider a remission of the matter to another circuit judge, we should embark upon the hearing of the appeal as if we stood in the position in which the circuit judge stood. We were referred in that connection to the provisions of the Supreme Court Act, section 15 which give this Court all the powers of the Court below. That being accepted on both sides, we therefore heard argument on the merits of the appeal which the appellant sought to pursue from the district judge's decision. That appeal, as I have indicated, was really based on only one point, namely that the district judge refused an adjournment both prior to the hearing and when an application for adjournment was renewed at the hearing before him. The adjournment was sought in order to enable the appellant to be legally represented. She had been served with a notice seeking possession of her flat (a Council flat) on 3rd September 1999. The notice refers to events taking place over a period stretching back to the first half of 1998.
7. On 15th December 1999 a summons was issued for possession of the property, and she was, on an unknown date, served with that summons which had a return date of 1st February. She made an attempt to contact the respondent to discuss it but little resulted from that. She made arrangements to see a solicitor and attended at solicitors on 14th January. She then filled in appropriate legal aid forms with proof of benefits which were sent to the Legal Aid Board on 18th January with information that the first available hearing date was scheduled for 1st February.
8. For reasons relating to the proof of benefits supplied which have not further been explained at any stage, the Legal Aid Board at that point did not grant legal aid. A fresh application was made to it with proof of incapacity benefit, but legal aid was still not forthcoming in time for the first hearing on 1st February. It was then that the unrepresented appellant sought an adjournment of the hearing to secure legal aid and to secure representation.
9. On 1st February, the district judge refused any adjournment. Initially he gave directions to the effect that the respondent's evidence should be filed and served within 14 days, that reply evidence should be filed 14 days thereafter and that the case be listed after 28 days at the first available date. He also granted an injunction against the appellant that she should not interfere with two other tenants in neighbouring flats, namely Mrs King and Mrs Evans. At some unknown date very shortly thereafter that order for directions was altered so as considerably to shorten the time limits. The respondent had to file and serve its witness statements by 8th February 2000 and the appellant had to file and serve her statements in response within three days -- by 11th February 2000.
10. The hearing was set down for 14th February. The respondents produced, on 8th February, four statements of exhibits which comprised some 65 pages of evidence in total. It is right that some of the pages are easy to digest but others, in particular the alleged nuisances, were more complex. In the ordinary course if lawyers had been involved they would have had to be gone through in some detail and (one would hope) in an orderly fashion. The appellant produced in response her handwritten statement and another from her brother. These, as counsel for the respondent rightly accepted before us, are difficult to view as a coherent statement of the appellant's position. However, it is clear that they take fundamental issue with a number of the respondent's allegations. They raise major issues of credibility in relation to the claims of Mrs King and Mrs Evans. They also raise a number of assertions relating to Mrs King and Mrs Evans which, if accepted, would have assisted the appellant's case that she was not responsible for nuisances or nuisances to the extent suggested in support of the application to have her vacate her flat.
11. The full hearing took place before District Judge Parker on 14th February. Witnesses were called on each side. It is apparent from his judgment that he gave the matter most careful consideration and that he did all that he could, in the circumstances, to form a view on the serious issues of credibility which arose before him. Nonetheless, his judgment, which was emphatically in favour of the respondent and against the appellant, was one which in her appeal she suggests was not the product of a fair hearing. She says that she did not know how to defend herself. She needed legal advice and appealed on that basis. Legal aid was finally granted, although even in relation to the appeal before His Honour Judge Crush late in the day, namely on 23rd June 2000. The matter came before His Honour Judge Crush and was disposed of, as I have indicated, on 3rd July 2000.
12. The appellant's challenge is to the district judge's two decisions: firstly, to refuse the adjournment on 1st February and, secondly, to refuse to adjourn on the hearing date itself. That is, as I have said, a challenge to decisions of an interlocutory nature. We have to review the decisions standing in the position in which a circuit judge would have been under the old procedure on an appeal, giving appropriate weight to the fact that the actual decision-maker was the district judge and that he made his decision in a situation where he was as well-informed as one can ever be about the background and the personalities of the parties before him and their capabilities. Nonetheless, we must reach our own decision as to whether he was right to refuse the adjournment.
13. We were referred to the decision of the European Court in Airey v Ireland [1979] 2 EHRR 305. That was a matrimonial case in the Irish High Court where the plaintiff, a litigant in person, was effectively denied a fair trial in circumstances where no legal aid was available and she was faced on the other side with a legally-represented party. The Court did not attempt to lay down any rule that legal aid must be available in all conceivable circumstances. That would be an impossible proposition, particularly bearing in mind the differences in the provisions of the Convention relating to criminal and civil trials. On the other hand, the Court did indicate that in certain circumstances legal aid might be required in a civil context where necessary to preserve or pursue rights in a practical or effective way. The headnote of that case says this:

"(a) The Convention was intended to guarantee rights that were practical and effective, particularly in respect of the right of access to the courts, in view of its prominent place in a democratic society.

(b) Judicial separation was available only in the High Court [that is the Irish High Court], where the procedure for instituting proceedings was complex.

(c) Litigation of this kind not only involved complicated points of law, but required proof to establish the facts, which might require expert witnesses.

(d) Marital disputes often entailed an emotional involvement scarcely compatible with the objectivity required by forensic advocacy.

(e) It was not realistic to suppose that, in such litigation, the applicant could effectively conduct her own case, despite assistance afforded by the trial judge.

(f) The possibility of appearing in person before the Irish High Court did not provide an effective right of access, nor did it constitute a domestic remedy whose use was required by Article 26."

14. It is right, as pointed out by Mr Beglan for the respondent before us, that that authority relates to complex High Court procedures. The present case relates to informal procedures before a district judge. That case also involved, at least potentially, expert witnesses whereas this case does not. This case is however one which clearly entailed emotional involvement. Reading the statements and the district judge's assessment of some of the complainants' evidence, it is quite clear that this was an emotional situation on both sides -- quite apart from the emotions induced by any immediate threat to one's home. Further, it seems to me that this case was one where, in the ordinary course, representation by an advocate would be of considerable benefit. It was a case where there was limited documentation, although there was some which in itself might require careful treatment. It was a case turning essentially on credibility where the services of an advocate in marshalling a response to the allegations and cross-examining the complainants would normally be regarded as very valuable. That of course is to some extent recognised by the fact that (a) legal aid was in principle available, (b) there was simply the unexplained hitch in providing it that ultimately was resolved in the appellant's favour and (c) legal aid is still available in housing cases. This was not a case in which legal aid was in principle not available; it is a case where the state recognised the appropriateness and continues to recognise the appropriateness of legal aid. In all those circumstances we have, as I have said, to form a view ourselves as to whether the decisions reached relating to adjournment were correct.
15. There was one other authority to which we were referred which carries the matter little further. It is Lloyds Bank Public Limited Company v Dix and Another given in this Court on 26th October 2000 where, at paragraphs 31 and 32, Laws LJ referred to the decision of Airey v Ireland and said:

"If I considered that an adjournment on 1 November 1999 would or reasonably might have made a material difference to the outcome of the litigation, I should for my part be prepared to order a new trial."

16. That was in the context where there had been a very late withdrawal of legal aid.
17. Standing back and looking at the position overall, I would fully accept the general desirability in conducting litigation as briskly as possible in the interests of justice. I would also be reluctant to reach any conclusion which would suggest that decisions on adjournment by district judges were readily susceptible of review. However it does seem to me that, on the facts of this particular case, the decisions reached on adjournment were wrong and that there should have been an adjournment to enable Mrs Bates' legal aid certificate to be finalised and to enable her to be represented. This was a case of considerable difficulty and delicacy for her where an advocate would undoubtedly have been of value. She was on very short notice required to respond in writing to lengthy detailed material, and then on almost equally short notice required to conduct a case in person in relation to the same subject matter. The background is one which had extended over some two years. In one sense the speed with which proceedings were pursued was a virtue but, taken in combination with the fact that her legal aid application had not been finalised and that the proceedings sought immediate and unconditional possession of her home, it seems to me that it involved a substantial potential injustice.
18. In the circumstances of this case I, for my part, therefore conclude that the district judge's decisions to refuse to adjourn were incorrect. It follows that his decision on the substance of the matter should be set aside and that a retrial should be ordered.
19. THE VICE-CHANCELLOR: I agree. District judges have a difficult task to perform in cases such at this. Our law does not confer on parties an absolute right to representation and in cases where they are not professionally represented, then the district judge has to enter the arena to some extent on their behalf. As Judge Crush put it in this case:

"It is not an unusual event that one party in civil proceedings, particularly at district judge level, is represented and the others are not, and it is the duty of judges, who are well used to discharging that duty, to extract the necessary evidence, facts and case from the unrepresented party. I do not believe from the judgment I have read and from the notes of the proceedings which I have read that that did not happen on this occasion."

20. But I think it must follow that there are certain cases in which the assistance of the district judge is not adequate and full representation is in fact required. In my view this was such a case. Mrs Bates had had no representation. The notice of intention to bring possession proceedings against her was based on the allegation that:

"You have, together with your family and visitors, caused nuisance and annoyance by playing loud music at a level which has interfered with your neighbours quiet enjoyment of their home and by behaving in an antisocial manner. In particular:"

21. And then there is set out, on my count, 53 separate occasions on which it was alleged that such conduct was committed by Mrs Bates or her visitors.
22. In those circumstances it seems to me that the three days which Mrs Bates was allowed for answering the written evidence submitted by the Borough Council was inadequate. We were told by counsel appearing on her behalf that she was overawed by the proceedings before the district judge. She was loud and incoherent and incapable of putting her case to the witnesses for the other side. It is evident from the district judge's judgment that feelings were running high and the lack of representation certainly did not help him to reach the appropriate conclusion. I can well understand the problems Mrs Bates found herself in.
23. We are entitled under Supreme Court Act section 15(3) to exercise the powers and jurisdiction that were available to the circuit judge on the appeal to him in the summer of last year. For the reasons given by My Lord the judge reached the wrong conclusion because he was not applying the correct provisions in dealing with appeals. He was entitled to reach his own decision on the same questions, namely whether adequate time had been given to Mrs Bates and whether the proceedings should be adjourned to enable her legal aid to come through or be refused (as the case may be) and to deal with the substance of the allegations made against her by calling further and additional witnesses if she was so advised.
24. In my view, in agreement with Lord Justice Mance, the district judge came to the wrong conclusion. In my view he should have allowed the adjournment for basically three reasons: first, that three days was not enough to deal with the allegations of the 53 separate occasions on which the conduct was alleged to have taken place; second, that some representation was required in order to deal coherently with the allegations which had been put forward; and, thirdly, the order sought was of a somewhat draconian nature because it was not in the event merely an order for possession which normally would be suspended but was in the event an order for possession to take effect immediately; that much more important, therefore, that the person whose home it was, was to be adequately represented to put the opposite point of view.
25. I appreciate the problems with which the district judge was faced, but I think in this particular case he was wrong and he should have allowed the adjournment which he refused. For those reasons I agree with Lord Justice Mance that we should allow this appeal and order a new trial.
(Appeal allowed; new trial to take place as soon as possible; costs in the event)