Case No: B2/2008/0817

Neutral Citation Number: [2009] EWCA Civ 882
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE COWELL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 8th May 2009

Before:

LORD JUSTICE RIX
- - - - - - - - - - - - - - - - - - - - -

Between:

	HUSSEIN & ANR	
Appellant	
	- and -		
	
GIBSON & ANR	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

The Appellant appeared in person.

The Respondent appeared in person.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Rix:

1.	This is the adjourned hearing of an application for permission to appeal brought by Mr Hussein from the judgment of HHJ Cowell sitting in the Central London Civil Justice Centre and given on 31 March 2008.  

2.	The background of the litigation has been fully dealt with in the previous judgments that I gave in this application on 26 January 2009 [2009] EWCA Civ 244.  I need therefore refer to none of those matters again but, as it were, read into this judgment my previous judgment of January of this year.  It will be apparent from that judgment that the prospects of Mr Hussein’s application for permission, which was essentially founded on an allegation of bias against the judge, were not looking sanguine for reasons set out in my judgment and against the background of the general merits of the dispute set out in my judgment.  But I adjourned the proceedings because during the hearing before me Mr Hussein presented some new material, namely a witness statement dated 22 January 2009 which he put before me, annexing to it some documents described in my judgment, which were essentially a print-out from Lexis Nexis, apparently made on 27 June 2007, of some newspaper articles going back to 1992 which were about Mr Hussein and which I briefly described in my judgment.  Mr Hussein said in his witness statement and to me that those documents had been handed to him after the trial before HHJ Cowell as coming from the bench.  He had only discovered them within the last few days or weeks in preparing for his hearing in the Court of Appeal before, as it turned out, me.  In those circumstances I felt obliged to adjourn the proceedings, saying that I would write to the judge to enquire about his knowledge of these documents and that I would adjourn the matter on notice to the respondent in case the respondent could throw any light on the matter himself.  The respondent, Mr Gibson, acts for himself like the applicant, Mr Hussein, as a litigant in person.

3.	The response of HHJ Cowell was that he knew nothing about the documents until they were brought to his attention by me, and Mr Hussein was informed of that.  This is the adjourned hearing and Mr Hussein in effect accepts in one sense what the judge has said, that he knew nothing about the documents, but he submits that the judge must be -- how can I put it -- mistaken about that because Mr Hussein submits that he had in effect quoted verbatim from those documents at the point in the transcript of the proceedings where Mr Hussein was being cross-examined by Mr Gibson: at page 37 of the transcript, where Mr Hussein was saying that he had been in court thousands of times before as a solicitor.  The judge said:

“JUDGE COWELL: Sorry, are you, were you a solicitor.  

A.  I wasn’t called yet.  I was working as …

HHJ Cowell:  A trainee solicitor, you told me.
 
A.	Yes, trainee solicitor.

HHJ Cowell: But you are not a solicitor.

A.	   No, I wasn’t a solicitor 

HHJ Cowell: No.  

A.	  I was converted to. 

HHJ Cowell:  From?

A.	  From accountant. 

HHJ Cowell: And were you a certified or a chartered accountant or neither? 

A.  I was a cost management accountant. [The transcript reads ‘Inaudible’ but I suppose the words were ‘A member’] of the Association of Cost and Management Accountants.”

4.	That is the passage that Mr Hussein has brought to my attention and in particular the question of HHJ Cowell: “And were you a certified or a chartered accountant or neither?”.  Mr Hussein told me that those words were verbatim from documents downloaded from Lexis Nexis.  I asked Mr Hussein to assist me by pointing to the passage in that download which the judge was citing, and Mr Hussein directed me to a passage in the download from the Mail on Sunday of October 4 1992, page 1 of  4, and to a line on that page towards the bottom of the page where the journalist writes:

“But he is not a member of any of the three main accountancy bodies.”

That is the passage that Mr Hussein says that the judge was quoting verbatim from.  It seems to me that that is plainly not a verbatim quote, as is clear from the passage in the transcript in these proceedings which I have quoted.  It is simply that the judge wanted to understand what the position was that Mr Hussein was speaking to.  He claimed to be a solicitor when he had previously told the judge that he was a trainee solicitor, so the judge wanted to be sure that he had understood the evidence that Mr Hussein had given correctly.  He then claimed to have been an accountant and the judge again wanted to make sure that he understood exactly what it was that Mr Hussein was speaking of, and so the matter was clarified in that way.  

5.	Against that background it seems to me to be a situation where Mr Hussein has to accept, as I certainly do in my judgment, the judge’s assurance that he had no knowledge of these newspaper articles. I have read every word of the transcript of the trial from beginning to end and I can find in it no possible suggestion that the judge knew of anything of these matters.  Indeed, the only place in the trial where there is any mention of  the matters discussed in the newspaper articles attached to Mr Hussein’s witness statement is a reference at page 12 of the transcript to something which Mr Hussein had himself introduced.  He was referring to a diary note that he had made about some paintings of his back in the diary of 1986, and he was giving evidence to the judge about that, and was referring to the fact that he then had these paintings in his offices at 27 Clerkenwell Road, and he referred in that connection to the Bank of England and the City of London Police and the judge was responding to that and commented “and for some reason the police were involved”.  There then followed this passage from the transcript:

“[Mr Hussein]. No Lord.  No, no, no, no.

Q.  No?

A. The… I had investigated the collapse of Johnson Matthey Bank on behalf of one client and also on behalf of a client who was involved in its collapse

Q.  Yes.

A. And of course I wrote to the then Treasury, one of the MP’s on the Treasury’s committee of Ireland[?] that the supervision was inadequate at the Bank of England of banks and it is likely that BCCI[?] [inaudible]… 

Q.  Yes well, this did not have anything to do with the pictures?

A.  No, no, no, this had nothing to do with-

Q.  Yes, well then…

A.  -the names are there because of that.

Q.  I see yes.

A.  Because I named…

Q.  It was… They are something quite different.

A.  Yes.

Q.  Nothing to do with the pictures? 

A.  No, no .

Q.  Right, thank you very much.”

6.	The judge was then eliciting from Mr Hussein his evidence in chief, and that passage shows that it was Mr Hussein alone who had brought into these proceedings any reference to the matters in the past concerning Johnson Matthey Bank and BCCI which were discussed in the documents attached to Mr Hussein’s witness statement, and that the judge plainly did not understand the reference and was not interested in it (“something quite different… Nothing to do with the pictures?”) as he made clear to Mr Hussein.  So I would completely accept the judge’s assurance that he had no knowledge of those documents or of those matters, and against that background and against the background of my judgment I turn finally to Mr Hussein’s central ground of complaint, which is that he had an unfair trial.

7.	Now in this respect I commented last time that Mr Hussein gave no examples of that unfairness.  That is true in that Mr Hussein had not presented to the court a transcript or any notes of the trial which would assist the court in trying to understand what Mr Hussein’s complaint of unfairness or bias was, but he had made nevertheless broad allegations of bias against the judge.  Now that I have the transcript of the proceedings which I required to be produced during the adjournment, and now that I have read that transcript, I am in a position to assess Mr Hussein’s broad allegations of bias against the background not only of the judgment which I have read, and which I had already said last time displayed no sign of bias or unfairness or unreasonableness, but against the transcript of the whole trial itself.  Thus I consider a number of Mr Hussein’s main allegations of bias. 

8.	The first is that the judge, “He refused to let me present my own case nor to allow me to present my evidence”.  In fact the position is that the judge, with great skill and fairness and caution, assisted Mr Hussein in guiding him through his evidence, drawing out with the help of the witness statement from Mr Hussein, which was before the judge, exactly what his evidence was in the pages of the transcript at 2-26 of the transcript.  The judge did the same to assist Mr Hussein’s wife, Mrs Hussein, give her evidence.  That was at pages 26-31 of the transcript.  And then the judge did the same in the case of Mr Gibson, who, as I said, was also a litigant in person.  Then he allowed both the parties to cross-examine one another, and in particular the judge gave full range to Mr Hussein to cross-examine Mr Gibson, that is indeed the largest part of the transcript of the proceedings running from page 39 all the way through to page 63 of the transcript, and he gave full latitude to Mr Hussein, finally, to make a final speech which we find at pages 64-71 of the transcript.   All that material speaks for itself.  The judge is in my judgment unfailingly courteous and polite and helpful to Mr Hussein at all points.  

9.	There is in fact only one point in the whole transcript where the judge has to -- how can I put it -- bring Mr Hussein up short, perhaps, and that was a point where in the judge’s eliciting of the evidence of Mrs Hussein, Mr Hussein sought to interrupt in order to guide Mrs Hussein in the evidence that she should give in answer to the judge’s questions, and the judge quite rightly had to tell Mr Hussein to be quiet.  

10.	The next allegation made by Mr Hussein in his grounds of appeal or skeleton argument is that there was hostile cross-examination by the learned judge.  There was no hostile cross-examination by the learned judge, there was no cross-examination by the judge at all.  I have described what the judge did, he elicited very fairly and helpfully Mr Hussein’s evidence from him and he left it to Mr Gibson to cross-examine Mr Hussein, which, if I may say so, Mr Gibson did with some skill and success.  

11.	The next allegation is “no cross examination or any voluntary evidence was allowed”.   Well, that is just wholly inaccurate.  There are 24 pages of cross-examination by Mr Hussein of Mr Gibson, and as for voluntary evidence there are the 24 pages of voluntary evidence which the judge very helpfully elicited from Mr Hussein himself and more from Mrs Hussein.  There were points in that evidence where the judge was a bit concerned that Mr Hussein was raising new matters, entirely new matters of which no notice had been given to Mr Gibson in any witness statement or the Particulars of Claim, and the judge was a bit concerned about this, as he said from time to time during Mr Hussein’s evidence; however, he did not stop Mr Hussein but he did remark from time to time that Mr Hussein should not really be raising new matters which would come as a surprise to Mr Gibson.  So there was the judge very properly holding the balance between two litigants in person, as one would hope a judge would fairly do, and in my judgment  the judge did on this occasion.  He never shut Mr Hussein up, however.

12.	The next allegation against the judge in Mr Hussein’s grounds is that:

“He then got the defendant to give his evidence with helpful hints in his questions so that his evidence was not his own but three quarters of it was what the judge hinted to the Defendant.”

I have read the whole of Mr Gibson’s evidence, both in chief as elicited by the judge and in cross-examination in answer to Mr Hussein’s questions, and there is in my judgment no possible question whatsoever of the judge assisting Mr Gibson or giving him helpful hints.  The matter can be tested by three suggestions in Mr Hussein’s grounds about the way in which the judge assisted Mr Gibson.  One is in the matter of a discussion about whether articles handed to Mr Gibson were paintings or prints, the second was about whether a watercolour by T B Hardy was damaged or not and the third was whether Mr Hussein had insured his possessions.  So far as the question about whether the articles handed to Mr Gibson and collected by him from Mrs Hussein were paintings or prints, the discussion of that matter at pages 41-44 of the transcript are entirely from Mr Gibson himself, with no suggestion from the judge whatsoever that prints might have been involved rather than paintings, and indeed in his final speech at pages 66, 67 and 68 Mr Hussein repeatedly refers to the fact that Mr Gibson had spoken about prints, he said wrongly.  Mr Hussein was there accepting that evidence about prints came from Mr Gibson and not from the judge, and there is not a word of complaint from beginning to end of the proceedings or in Mr Hussein’s lengthy final submissions that the judge was acting unfairly or had been in any way hinting to Mr Gibson what evidence he should give.  

13.	The same point can be made about the question of damage to the Hardy painting or watercolour (see page 33 of the transcript), where it is Mr Gibson who volunteers entirely by himself that that article was damaged, I think it is referred to as damaged in the particulars of sale.  And so far as the question about whether Mr Hussein had insured his goods, that again was entirely Mr Gibson’s own point (see page 35 of the transcript).  So there is nothing whatsoever in that allegation.

14.	Then the final allegation against the judge which I would pick up from Mr Hussein’s grounds of appeal was that the judge was grinding his own axe:

“… to grind his own axe against me personally because of some events in another matter from 2005.”

This is a matter that Mr Hussein mentioned today -- he had not mentioned it last time, I did not understand what he was referring to from his grounds of appeal -- but what Mr Hussein told me today is that he had appeared before HHJ Cowell on some previous occasion, as I understood him, and he complained to me today that a counterclaim of his in some previous proceedings had completely disappeared from the computer or from the court files or something to that effect.  I do not care anything about that: I am not interested in what Mr Hussein might give me about the details of some previous litigation which was no doubt decided on its own merits, and if appealed against dealt with on appeal on its own merits.  

15.	It seems to me that both the proceedings and the judgment of the judge were extremely fair.  I have read and reread the judge’s judgment in the light of what I now know about the whole proceedings, and it seems to me from beginning to end to be a most remarkably careful, fair and mild exposition of the evidence that he had heard. 

16.	I come finally back to the merits of this matter.  They are fully set out in the judge’s judgment and in my own previous judgment.  The facts of the matter are that the judge, having heard Mr and Mrs Hussein and Mr Gibson, preferred Mr Gibson’s evidence to that of Mr or Mrs Hussein where they differed.  There was in truth no evidence whatsoever to support Mr Hussein’s or Mrs Hussein’s assertions of the value of the goods collected by Mr Gibson other than their assertions.  Moreover their assertions about the value of those articles had constantly been shifting.  Mr Hussein’s Particulars of Claim gave some particulars of value in relation to particular items; at another point he spoke of a value of £55,000; at a later point he doubled that to £110,000. Mrs Hussein gave evidence that their possessions had been valued some six years previously by somebody else at £100,000, but there was no evidence about that.  Mr Hussein gave evidence conflicting with his Particulars of Claim about how Mr Gibson had told him to his face that this painting was worth £30,000, and another painting was worth £30,000, a third painting was worth £20,000, and a fourth painting was worth £20,000, and the fifth painting was worth £20,000 and a pair of vases were worth £5,000 each.  That was part of the constantly shifting allegation of value.  There was conflicting evidence as to whether Mr Gibson had prepared a list at the time of his collection, but in the end it was clear on Mrs Hussein’s evidence, Mr Hussein not being there on that occasion, that no list had been prepared but Mr Gibson had left a briefly written and unsigned receipt with Mrs Hussein to which Mr Hussein had never thereafter paid any attention whatsoever.  The best evidence, as the judge said, was in the list of the goods collected once they had been lotted and valued with reserves or without reserves and sent in the post to Mr Hussein, albeit it is said that because he had left his home by that time he had not received that list.  Certainly, however, he or his daughter had received a cheque on a subsequent occasion and indeed had received it very speedily, because having been posted on Friday 18 August 2006 it had already cleared through Mrs Hussein’s, I think, bank account by Wednesday 23 August.  And on another occasion particulars of a final sale (in which two unsold lots were due to be resubmitted to the public on auction) had reached Mr Hussein in time for him to respond by his fax of 5 October 2006 to Mr Gibson with instructions that one lot, lot 521, was to be withdrawn from that sale.  

17.	It seems to me on what is now a very careful consideration of every word of this trial and many rereadings of the judge’s judgment, that the allegations of bias are for the reasons which I have sought to give in this judgment wholly without merit and really should not have been made in the way that they were made.  It seems to me that this application for permission to appeal has absolutely no prospect of success and I would finally, at the end of this second judgment on this adjourned hearing, refuse this application.

Order: Application refused