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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 >> Bassett v Gateway 2000 Europe [2001] EWCA Civ 683 (4 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/683.html Cite as: [2001] EWCA Civ 683

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UXBRIDGE COUNTY COURT
(His Honour Judge McIntyre)

		Royal Courts of Justice Strand London WC2 Friday 4th May, 2001

1. LORD JUSTICE PILL: This is an application by Mr Michael Bassett for permission to appeal against orders of His Honour Judge McIntyre at the Uxbridge County Court sitting at Reading in January 2001.
2. An order of 11th January (which is at page 10 of the bundle) provides:

"Upon hearing the Claimant in person [that is Mr Bassett] and upon hearing Counsel for the Defendant

BY CONSENT

IT IS ORDERED THAT

(1) The Claimant pay £6080.62 to Cliff Dilloway, the jointly instructed computer expert, in cleared funds, by 4:00 pm on 26th January 2001.

(2) The Claimant pay £1250.00 to the Defendant's Solicitors, in respect of the Defendant's costs that he was ordered to pay on 19th December 2000, in cleared funds, by 4:00 pm on 26th January 2001.

(3) The Claim be stayed until the Claimant pays the sums referred to in paragraphs (1) and (2) above, or 4:00 pm on 26th January 2001, whichever occurs the later.

(4) In the event of the Claimant's failure to comply with paragraphs (1) and (2) above, the claim be dismissed & the Claimant pay the Defendant's costs of the claim, to be the subject of detailed assessment.

(5) In the event of the Claimant's complying with paragraphs (1) and (2) above, the case be relisted on the first available date after 26th January 2001, with a time estimate of 2 days, and the costs of today be reserved to the Trial Judge."

3. It is common ground that Mr Bassett did not pay the sums referred to in paragraphs 1 and 2 of that order by the date ordered, and by a further order made on 30th January it was ordered:

"(1) In accordance with paragraph 4 of the Order of 11th January 2001, the Claimant's Claim is dismissed.

(2) In accordance with paragraph 4 of the Order of 11th January 2001, the Claimant do pay the Defendant's costs of the Claim, to be subject to detailed assessment."

4. Ancillary orders were also made.
5. The applicant was claiming against the respondent, Gateway 2000 Europe, by reason of defective computers which he says had been supplied to him by them. There was also a counterclaim.
6. A computer expert was instructed with a view to advising the judge upon the question. The trial was due to take place on 11th January, but the judge was unable to hear the case because a trial bundle had not been lodged. When there was discussion about the date of an adjourned hearing, it emerged that the applicant had failed to pay what were claimed to be the expert's fees, and had also failed to pay a costs order which had previously been made against him. I now have an order of 19th December, made by His Honour Judge Critchlow at Uxbridge County Court which provided, amongst other things, that:

"The Claimant do pay the Defendant's costs of the application as summarily assessed at £1,250.00."

7. That order also required the attendance of Mr C Dilloway and Mr G Dilloway, the computer experts instructed, to attend the trial on 11th January. It was then that a discussion occurred before the judge between Mr Bassett and counsel appearing for the defendants, and the order of 11th January was made.
8. In his written proposed grounds of appeal Mr Bassett states that the trial bundle was not available to the judge on 11th January, though he does not say that that in itself provides a ground for appeal. His main ground is that he was on 11th January in ill health, and ill health to such extent that he did not know what he was doing. There had been a five-hour delay before the case was called on and, rather than being told at the outset there would be a long delay, he was in expectation the case would be called on throughout that period. By reason of his ill health he says he took no fewer than 12 Diazepam tablets in the course of the time, so that when the case was called on he did not know what he was doing.
9. Before referring to that in a little more detail, I summarise the other grounds of appeal which appear in writing. It is submitted that the judge's order failed to take account of Mr Bassett's limited means compared with the substantial means of the company, and complaint is made, and indeed has been repeated orally, about the relations between the computer expert and solicitors concerned.
10. Mr Bassett submits that the judge was diverted from the real issue by the question of the expert's fee being raised. The expert had been required to attend and Mr Bassett believes that that was because his integrity was in question. I state in passing that the fact that a jointly appointed expert is required to attend does not necessarily involve an allegation against his integrity. Normally it only means that one or other party wishes to cross-examine the expert or to obtain further elucidation of his report. There is no doubt that Mr Bassett was not content with the written report which had been produced.
11. Mr Bassett has appeared in person today in support of his application and he has helpfully provided further written submissions which I have now had the opportunity to read. The points made in writing earlier are developed. Stress is placed upon the inability of Mr Bassett, he contends, on 11th January properly to look after his interests at the hearing before the judge. That submission has been developed orally. I referred to the Diazepam that was taken. Mr Bassett says that for four weeks from that day he was in deep depression. His condition is such that a depressive attack can come upon him suddenly. He refers to the fact that on 16th February he was assessed by a medical adviser, for the purposes of an application for Severe Disablement Allowance from the Benefits Agency, at an overall assessment of disablement of 80 per cent, which obviously is a very substantial one.
12. The notice of appeal was dated 21st February 2001, that is just over a month after the order complained of. If an extension of time is required I grant that, especially as the striking-out did not take place until a later date and the notice was served within four weeks of the striking-out. Mr Bassett describes his condition as an anxiety syndrome which causes him deep bouts of depression. He says that he is not completely well now, but a lot better than he was on 11th January. He makes complaints about the conduct of the proposed respondents and alleges that he has evidence of collusion between the court-appointed computer expert and the proposed respondents' solicitor. The expert's integrity is in question, he submits. He adds in relation to his medical condition that on 11th January he was "very disorientated and confused, barely cognizant of events."
13. He submits that the judge erred in law in striking out Mr Bassett's claim. He failed to discharge his duty to achieve the overriding objective in the Civil Procedure Rules are to ensure that the parties were, as far as practicable, on an equal footing and that orders were proportionate to the financial position of each party.
14. Reference was made to Article 6 of the European Convention on Human Rights. That is now a part of English law, but does not, in my judgment, affect the approach which the court should take in circumstances such as the present. It is the duty of the court in any event to ensure that there is a fair trial of issues and that cases are not struck out without good reason.
15. Mr Bassett accepts that the sums ordered to be paid on 11th January were due, though he does wish to draw my attention to negotiations between Mr Cliff Dilloway and the solicitors for the proposed respondents. He says that he had not had an invoice for payment and refers to arrangements by which his opponents, he submits, took the responsibility for paying Mr Dilloway. The object of that reference is to suggest improper conduct by others involved in the litigation, and not to dispute the power of the judge to make the order that the fee of the expert should be paid by Mr Bassett.. Mr Bassett has not challenged the power of the judge to make that order in the circumstances then prevailing. What he does submit is that his claim ought not to be struck out. An order was made at a time when, he submits, it was obvious to everyone in court that he was in no fit state to conduct his own affairs.
16. The hearing, he tells me, went on for between half an hour and an hour. I have a transcript of the latter part of the hearing, when the order was made. Judge McIntyre is an experienced judge and no doubt familiar, as almost all judges are, in dealing with persons who represent themselves and in ensuring that appropriate treatment is accorded to them at the court hearing.
17. I have carefully considered the transcript. I have invited Mr Bassett's attention to passages in it. I am quite unable to conclude that there is material upon which I am able to say that permission to appeal should be granted on the ground that Mr Bassett was incapable of conducting his affairs or looking after his interests on the day in question. Mr Bassett accepts that it all comes down to that. His other complaints, some of which may be relevant if the case were to proceed to a hearing, are, he accepts, incidental because what the court has to consider is whether the order was properly made. He submits it was not properly made because he, as must have been obvious to the judge, was plainly not in a position to look after his interests. I have referred to the fact that the order of 11th January is expressed to be made by consent. I do not propose to read the transcript in full. I have referred parts of it to Mr Bassett for his comment, including his interventions of some length and substance. For example, at page 2 he says that is a false impression of his ability to conduct a hearing. He says that there were gaps in what he was saying, and no one present could fail to be aware that he was unable to look after his interests.
18. The transcript reads in an entirely coherent way, in my view. Line three on page 1, Mr Bassett raises a pertinent point:

"Excuse me, your Honour, could I pay the money into court as opposed to direct to Mr Dilloway?

THE JUDGE: No, you have got to pay it direct to him."

19. Mr Bassett's question shows an awareness and a perspicacity which is quite contrary, I have to conclude, to the submission he makes that he was incapable of looking after himself.
20. A few lines later he again asks a very pertinent question:

"Can your Honour order that Mr Dilloway issues an invoice to that amount, a VAT invoice to that amount?"

21. I cannot begin to understand how someone who is in the state of health which Mr Bassett says which he was in would be able to make those, if I may say so, sensible and pertinent inventions.
22. Mr Bassett did, more than once, affirm his intention to fight the action and when his opponent, Miss Smith of counsel, requested an order that in the event of the sum not being paid the claim be dismissed, Mr Bassett replied:

"It will be paid by that date, sir."

23. At the bottom of page 1 he was asked whether he understood the effect of the order. He said that he did and when asked if the matter was coming back to court:

"... you want it back as soon as you can as well?

THE CLAIMANT: Most definitely, your Honour. I am sorry. I've forgotten the name of the other Judge again."

24. The mere fact that Mr Bassett forgets a judge's name is not, in my view, significant evidence of an inability to look after his affairs. Again a pertinent observation at page 2B:

"His Honour Judge Critchlow, whilst he didn't make it part of the order, requested Mr Dilloway to bring a computer and also the Market [Eye] product. Can your Honour make an order that the Market [Eye] product is returned to me forthwith?"

25. There are then two further substantial interventions on that page of the transcript before, at the bottom of the page, Mr Bassett responds to an observation of the judge:

"The case won't be dismissed. It will be fought."

26. The question of bundles was then raised:

"THE CLAIMANT: Can we add these extra documents to the trial bundles, your Honour?"

27. A good question, if I may say so.
28. The mechanics of the order are then considered, and again Mr Bassett makes pertinent observations which show every evidence that he was capable of looking after his interests.
29. I do not doubt the good faith of Mr Bassett in coming to court to make this application. Plainly he has had ill health and a month later Dr Bhupatiraz on behalf of the Benefits Agency found a substantial disability. But the court has to approach an application such as this on the basis of the best evidence before it, and the best evidence is that contained in the transcript. The transcript is an accurate record. I would start with an assumption that a judge with the experience of His Honour Judge McIntyre would be alert to considering whether a person representing himself was or was not in a state of health and mind to be able to conduct his business before the court. That presumption could of course be displaced. It could be displaced if the record of the proceedings shows that the person concerned was not so able.
30. Far from demonstrating that, the transcript, in my judgment, demonstrates that, notwithstanding the problems he faced and the subsequent finding of the Benefits Agency doctor, he was capable of conducting affairs on that date. He agreed with the order. He agreed to an order which provided that his action would be dismissed if sums of money were not paid in the time stipulated. No doubt Mr Bassett has a genuine sense of grievance in relation to the conduct of his opponents. It is not for me of course to try the merits of the case. I have not heard their side of the story. He considers he has been ill treated in the course of this litigation.
31. My task is a limited one, though an important one. It is to consider whether it is arguable that the order of 11th January which led to the striking-out can be set aside because of the argument advanced by Mr Bassett. I am not able so to decide. I do not consider he has an arguable case for appealing the order successfully. In those circumstances, the application for permission must be refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)