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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 >> Brown v Alan Edwards & Co [2001] EWCA Civ 980 (15 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/980.html Cite as: [2001] EWCA Civ 980

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE HALLGARTEN QC)

		Royal Courts of Justice Strand London WC2A 2LL
		Friday 15 June 2001

1. LORD JUSTICE SEDLEY: This is an application by Mr Brown, acting in person, for permission to appeal against a decision of Judge Hallgarten QC at the Central London County Court on 26 January 2001. Judge Hallgarten dismissed Mr Brown's appeal against the dismissal by District Judge Lightman of Mr Brown's negligence action against his former solicitors, Alan Edwards & Co. The appeal was conducted by way of review and not of rehearing. Because the appeal to this court would therefore be a second appeal, Mr Brown must, as a matter of law, be able to show me not only that he his has a realistic prospect of success, but that some point of legal principle or other particular reason exists for giving permission to appeal.
2. Mr Brown's action against Alan Edwards & Co, arose out of a confrontation with his former landlady, Mrs Mojzesz, and her husband in the course of which it has always been Mr Brown's case that he was attacked with a crowbar by Mr Mojzesz in the presence of Mrs Mojzesz and with her encouragement. He managed to make a tape recording of the incident which formed an important element in the claim that he brought. Mr Mojzesz had gone missing and there was no prospect that the Legal Aid Board would consider him worth powder and shot. It was against Mrs Mojzesz that Mr Brown's proceedings were therefore launched, initially by other solicitors and from November 1992 by the present defendants.
3. As was normal, legal aid was limited to discovery and counsel's opinion. In spite of a temporary misunderstanding by the solicitors of the nature of that limitation, the course they took was precisely the course required by the legal aid certificate.
4. Counsel's opinion on the prospects of success was adverse. The solicitors went to the trouble of having legal aid extended so as to allow them to go to fresh counsel, Mr Soor. He also advised that the case was likely to fail. Mrs Mullally of Alan Edwards & Co wrote to Mr Brown with the bad news. Mr Brown wrote back to challenge counsel's advice, as he was entitled to do, by drawing attention to a number of elements of the evidence, in particular the tape. On 10 June 1993 he withdrew his instructions. Mrs Mullally made a note that Mr Brown had said to her:

"In respect to the case against my previous landlords, I am instructing John Gillman of Powell Spencer & Partners as of today ..."

5. The judge concluded that from that point onwards the defendant solicitors were no longer retained by Mr Brown. Mr Brown submits that the judge's conclusion was wrong. On 14 June 1993 the solicitors wrote to the Legal Aid Board, pointing out the limitation, in order to get a further opinion as to whether the case was ready for setting down. They enclosed with that letter both counsel's adverse opinion and Mr Brown's contrary representations. On the same day Mrs Mullally wrote to Mr Brown informing him that the second opinion was adverse and that she was obliged to inform the Legal Aid Board, as she did. The inevitable result of that would have been the withdrawal of legal aid.
6. Mr Brown continued to communicate with the defendants' solicitors about the formulation of the case and the need to amend it. But, on 17 June, he gave notice that he intended to act in person. Meanwhile the Legal Aid Board gave Mr Brown an opportunity to make representations to them as to why his certificate should not be discharged and told the solicitors meanwhile to do no further work on the case. On 17 June Mr Brown wrote to Mrs Mullally:

"I have not yet found another solicitor. You are still under an obligation to take instructions from me. .... Unfortunately you have told me this after I have told the court you are no longer my solicitor and have signed something to that effect. But that can be rectified. Please phone me urgently about this."

7. The judge commented:

"That seems to have been an attempt by the claimant to get Mrs Mullally interested in the case again, but she was not."

8. Thereafter, on 22 June, Mr Brown gave notice in these terms:

"Would all concerned please note that until further notice I, David Brown, will be conducting my own case."

9. When the case came before the court it went extremely badly from Mr Brown's point of view. It was tried by an Assistant Recorder who took the view that the case of assault against Mrs Mojzesz was unpleaded and that he not only would not, but could not, allow the necessary amendment because Judge Hammerton a few days earlier had refused an application to amend. He therefore dismissed the action without even calling upon Mrs Mojzesz. When that decision was appealed to this court, it was appealed in the belief, at least on the part of counsel representing Mr Brown, that Judge Hammerton had indeed refused leave to amend so that the Assistant Recorder's hands were tied. It is clear from the judgment given by Hoffmann LJ in this court that it was upon that basis that the court proceeded to dismiss Mr Brown's appeal.
10. Mr Brown is now able to put before me a subsequent letter written dated 23 March 1995 from the Brighton County Court which says:

"I can confirm that Judge Hammerton did not refuse you leave to mend your particulars of claim."

11. This confirmed that Mr Brown's understanding throughout, that Judge Hammerton had said that there was no need to amend because the pleadings were already apt to include what Mr Brown wanted to argue. I simply do not know, but on what I have been told it may be that this was a real misfortune that befell Mr Brown; a misunderstanding which may or may not have robbed him of victory in the case but which certainly, if it was the misunderstanding it appears to have been, deprived him of his full day in court against Mrs Mojzesz and also took the steam out of his appeal. But it is history now and, as Mr Brown realises, there is nothing I can do about it. I am certainly not a Court of Appeal from a previous Court of Appeal. But I can understand Mr Brown's sense of grievance about this.
12. In the wake of that catastrophe, Mr Brown brought the present proceedings for negligence against his former solicitors. The district judge, after a full hearing which included protracted evidence under cross-examination of Mrs Mullally, found against Mr Brown. His judgment runs to some 22 pages. During the hearing Mr Brown gained the clear impression that the district judge was on his side in relation to the violence perpetrated by the landlord and landlady. He has shown me, in particular, portions of the transcript where the district judge makes it clear that he appreciated that Mr Brown's case was that he had seemed very polite. When Mr Brown gave the judge a verbatim account of the confrontation, the district judge said:

"I know what he said. He used some abusive language and threatened to kill you."

13. Later, the district judge said to Mr Brown:

"....and then the tape continues with your being attacked by Mr Mojzesz with a crowbar and what have you."

14. Mr Brown says that this lured him into the belief that his evidence was being unequivocally accepted by the district judge so that it came as a shock when the district judge went against him and, in Mr Brown's view, against what the tape recording clearly demonstrated on this aspect of the case.
15. One further element of evidence has now come to light. In returning some papers to Mr Brown, the county court inadvertently included in them a photocopy of what appears to be a manuscript note from, and signed by, District Judge Lightman, possibly inadvertently dated 14 January 2000 instead of 2001, and addressed to the circuit judge, Judge Hallgarten who, in the following January, was to hear the appeal. The note contains this sentence:

"The tapes suggest that the alleged assault was instigated by Mr Brown himself."

16. I have not listened to the tapes and do not intend to. But I find it disturbing that the very full judgment of the district judge was not permitted to speak for itself (which is the point of giving a full judgment) and that it was supplemented by a note of this kind which was not, it appears, made known to Mr Brown except in arrear and by accident. It is even more disturbing to find that the note says something that the judgment of the district judge, so far as I can see, did not say. I will refer to what effect, if any, that remark may have had upon the circuit judge who heard the appeal later in this judgment.
17. The remaining issues about how the district judge treated Mr Brown's evidence are based on a misunderstanding by Mr Brown. The judge was, like many judges, seeking to draw out and help him articulate what his case was. He was not necessarily accepting that the facts were as Mr Brown asserted they were. A judge has to keep an open mind throughout a hearing and must not make up his mind finally until he comes to give judgment. That is why one encounters this kind of apparent discrepancy.
18. The four issues of law are these:
(1) Were the defendants still on the record, and therefore obliged to attend and represent Mr Brown?
19. It appears that they may have still have been on the record but it does not follow from that that they were obliged and still under instructions to attend and appear. It is clear from what the judge found, and from what follows, that the solicitors were no longer instructed and that they should have come off the record. Their error, if there was an error, was not in failing to attend but in failing to come off the record. The evidence in my view is all one way on this.
(2) Did the solicitors misconstrue the legal aid certificate?
20. The recital by the judge of the history of the case shows that, briefly, the solicitors did believe themselves to be more constrained than they were by the limitation. But visibly it had no effect whatsoever on their conduct of Mr Brown's case. On the contrary, as the judge spells out, they worked conscientiously on his behalf, going to a second counsel when the first gave unfavourable advice until, with the unfavourable advice of Mr Soor, the case ran into the sand.
(3) Should the county court judge to have listened to the tape?
21. Mr Brown says he should have done. He did not do so because of time constraints and because the district judge and counsel had listened to it. I have not listened to the tape, and it is not with my papers. I would not have done so had it been supplied for this reason: The point that matters in this case is that two separate counsel having heard the tape formed the view that it would not, by itself or in conjunction with the other evidence, bring Mr Brown's case home. It is their advice which the defendants' solicitors took and by which they were bound. It would inexorably have led the Legal Aid Board to withdraw legal aid if Mr Brown had not in any event discontinued his instructions to the defendants. Moreover, it is clear from his judgment that Judge Hallgarten was not in any way influenced by the passage in the district judge's private note to him which I have read out. He said in the course of his judgment:

"He [Mr Brown] pressed me to hear the tape recording, but it was heard by District Judge Lightman and it was heard by Mr Soor. Mr Soor reached the conclusion that it did not point to any case against the [Mojzesz]. In any event the District Judge held that it was, at best, inconclusive. So it is therefore very difficult to say that had the tape been before the Assistant Recorder, such somehow would have assisted the claimant to win the day."

22. It is evident from that passage that neither the district judge in his judgment, nor the circuit judge in his judgment, had formed the view that the tapes suggested that Mr Brown was the instigator of the assault. The only view either of them had formed in the end was that the tape was at best inconclusive.
(4) Were the defendants in breach of their duty to the claimant in failing to get the pleadings amended in good time to allege assault by Mrs Mojzesz in that she instigated her husband's violence?
23. I have already mentioned the history of the application to Judge Hammerton who, it appears, took the view that no amendment was necessary. I have also expressed my sympathy with Mr Brown in the feeling he has that he got caught between two fires on this issue. As the judge also points out in his judgment, if counsel's advice was right (and it was all the solicitors had to go on) no amendment could have saved the case because the evidence was not there to bring it home. That is why there would be no consequences of negligence, if there were any, in the failure to amend.
24. It follows that there is no realistic prospect that if I were to give Mr Brown permission to appeal on any of these points he would succeed in upsetting the circuit judge's decision. Permission to appeal on these issues would bring the near certainty of another crushing bill of costs from the other side. I say "another crushing bill" because the final complaint Mr Brown makes about the circuit judge is that he assessed the defendants' costs at £8,000 on the spot and ordered Mr Brown to pay them. I have seen the bill in its two successive versions. Mr Brown tells me he was shown it a day or two before the hearing. The judge pruned it by over £4,000 because it initially stood at over £12,000. The judge probably took the view that he was being generous to Mr Brown in so doing, but Mr Brown submits that far more than £4,000 should have come off the bill. He has made strenuous efforts to get documentation to undermine the validity of the bill and has made an application for discovery in the present application, which is not apt because it is seeking to relitigate issues which are already decided.
25. However Mr Brown does have a grievance about the way the bill of costs was dealt with. He has been trying for a long time to obtain a full transcript of the proceedings before Judge Hallgarten. He has put before me today a letter of 14 June 2001 from Smith Bernal saying that they are still waiting for the audio tapes to arrive from the Central London County Court. They continue:

"We have been informed that the person dealing with the dispatch of audio tapes has been away for some time and it appears too that noone else appears to be dealing with clients' tape requests in her absence."

26. I do not want to raise any false hopes in Mr Brown. I do not say that there is necessarily anything appealable in the bill of costs, but I want to be satisfied that Mr Brown had a proper hearing on what, after all, was a dramatic amount, even if only an ancillary element of the case; a crippling amount of money for someone like him. I also would want to be sure that the contents of the bill of costs are not themselves appealable.
27. I can see from my experience of listening to Mr Brown today how difficult it was for the judge to invite submissions from him, but Mr Brown was nevertheless entitled be properly heard. He tells me that he has now been referred to solicitors who are able to advise him. It seems to me absolutely essential that he should go to them in these circumstances. I propose to direct that when the tapes come from the county court, Smith Bernal be asked to transcribe at public expense simply that element of the post-judgment dialogue which concerned the defendants' bill of costs. When that is provided to Mr Brown, it is essential that he should not just sit on it or try to argue his own case. I think he appreciates by now that he is not always his own best advocate. He should take it to the solicitors to whom he has been referred, because it is only a firm of solicitors who will have the expertise to know whether a bill of costs is sound or is challengeable.
28. With that advice Mr Brown must decide whether he has any basis for coming back before me or whether he simply has to draw the line and accept that £8,000 was as low as the bill of costs could have been brought. I have no way of knowing what the answer will be, but I do want Mr Brown to have a proper opportunity of finding out for himself. I shall reserve the case to myself.
29. Before leaving this case, I would make this comment. Mr Brown is understandably aggrieved and distressed by the suggestion that he discerns in some of what has been said in this case that he was the instigator of the violence which gave rise to the original proceedings. Having looked at the papers with care I am willing to say in open court that there is not and never has been any proof that Mr Brown in any way instigated or provoked the violence with which his proceedings were concerned. I hope that may do something to assuage his pain.
Order: Permission to appeal refused. Transcript of post judgment dialogue from the court below to be provided to Mr Brown at public expense.