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Neutral Citation Number: [2002] EWCA Civ 804

IN THE SUPREME COURT OF JUDICATURE A2/2002/0026
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Wright and Mr Justice Garland)

 

Royal Courts of Justice
Strand London WC2

Thursday 23rd May, 2002

 

Before:

LORD JUSTICE BROOKE

 

JOHN TRYGVELIE BULLED
Claimant/Applicant

- v -

(1) GEORGES M KHAYAT QC
(2) TOM EGOLE AND MU SAMUEL EGOLE & CO
Defendants/Respondents

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4 A 2AG Tel: 020 7421 4040
Official Shorthand Writers to the Court)

 

THE APPLICANT appeared on his own behalf

THE RESPONDENTS did not appear and were not represented

 

JUDGMENT

(As approved by the Court)

©Crown Copyright

1.   LORD JUSTICE BROOKE : Mr Bulled was tried at the Central Criminal Court in March 1996 and convicted of serious sexual offences and sentenced to eight years' imprisonment. He sought leave to appeal. His application was refused by the single judge. It was renewed before the full court, but in May 1997 the full court refused leave to appeal.
2.   The proceedings with which I am concerned are professional negligence proceedings which he started in May 2001 against the leading counsel and a firm of solicitors who acted for him in connection with his criminal case.
3.   On 9th November 2001 Master Ungley directed that his action should be struck out as an abuse of process. He gave summary judgment for both defendants and he made orders against Mr Bulled to pay the costs of both defendants, which he summarily assessed.
4.   Mr Bulled exercised his right to apply to a High Court judge for permission to appeal against the Master's decision. The matter came before Garland J on paper on 29th November 2001 when he wrote this:
  
   "The Master's reason for refusing permission are correct. When the case of Hall v Simons [2000] 3 WLR 543, [2000] 3 AER 673 is read as a whole, it is clear that the majority took the view that when a criminal case has gone to appeal, and the more so when there has been no reference by the Criminal Cases Review Commission, a collateral attack alleging negligence by Counsel will be struck out as an abuse of process. Negligence by Counsel is a ground of appeal, R v Clinton [1993] 1 WLR 1811. Lord Hope considered that a civil action would lie only when there was a successful appeal; Lord Hobhouse that no civil action should be allowed for alleged negligence in criminal proceedings; and Lord Millett agreed with Lord Hope."
5.   Mr Bulled exercised his right to request a reconsideration of Garland J's order by a High Court judge in court. The matter came before Wright J on 17th December 2001 and he came to exactly the same conclusion as Garland J. He concluded that it was clear that the Master was absolutely right to strike out the action, and he went on:
  
   "This is the epitome of an action which is an abuse of the process of the court, as it is brought not, as it seems to me, whatever Mr Bulled may say about it, because of any sense of true grievance in relation to counsel and solicitors but because Mr Bulled is trying through the back door to challenge the correctness of his criminal conviction, in respect of which an appeal was properly mounted and failed."
6.   Wright J said that he had pointed out to Mr Bulled, as he was already aware, that the appropriate course for him to take if he thought that new evidence had come to light which might render his previous conviction unsafe was to make an application to the Criminal Cases Review Commission.
7.   Mr Bulled then sought permission to appeal to this court. Unfortunately, the way Wright J's order was drawn up did not make it completely clear what he had ordered. The order by the court which was sealed on 18th December concluded by saying:
  
   "IT IS ORDERED that permission to appeal be refused and this hearing be treated as the hearing of the appeal."
8.   The doubts about what had happened in front of Wright J remained unresolved until a transcript of his judgment became available, when it became completely clear that Wright J had refused permission to appeal.
9.   This case therefore falls into the category of cases to which I referred in my judgment in Jolly v Jay [2002] EWCA Civ 277 [19]. After explaining that both the Access to Justice Act 1999 and Part 52 of the Civil Procedure Rules made it clear that the Court of Appeal had no jurisdiction to hear an application for permission to appeal against a decision of a lower appeal court which itself refused permission to appeal, I said this, in giving the judgment of the court:
  
   "We are told by the Civil Appeals Office that Mr Jolly is by no means the only litigant in person who has insisted in recent months in pursuing such an application to an oral hearing in this court notwithstanding that the court manifestly has no jurisdiction to entertain it. In future the Civil Appeals Office should not list such applications, which represent a complete waste of the resources of the court (see CPR 1.1(2)(e)). Any case of doubt should be referred on paper to one of the lords justices who supervise the administrative business of the court."
10.   Once the staff of the Civil Appeals Office had been able to understand what had happened before Wright J, they wrote to Mr Bulled making it clear that he would have to satisfy the court that it did have jurisdiction to hear his application. I have listened to Mr Bulled today. He was not equipped to argue this legal point. He was much more concerned to explain to me why he felt a deep sense of injustice about the way his criminal case had been handled.
11.   In these circumstances I have no power at all, for the reasons set out in my judgment in Jolly v Jay, to entertain this application. I have no power to make an order on it because I have no jurisdiction at all in the matter, any more than any other appeal tribunal in the country or the House of Lords itself would have any power to hear an application for permission to appeal once permission to appeal has been refused by a lower appeal court. I mention this because I understand that there is uncertainty in the Civil Appeals Office whether a litigant is entitled to have an oral hearing before a Lord Justice when it is completely obvious that the court has no jurisdiction. I repeat what I said when sitting as a member of a three-judge court in Jolly v Jay. The Civil Appeals Office should not list such applications when it is obvious that the Court of Appeal has no jurisdiction. Any case of doubt should be referred on paper to one of the Lords Justices who supervise the administrative business of the court. If the supervising Lord Justice confirms that the court has no jurisdiction, then that should be the end of the matter.
12.   I will not leave this application without expressing concern about the way in which Wright J's order was drawn up. If it had simply directed that permission to appeal was refused, then there would have been no doubt about the effect of his order and the Civil Appeals Office would have rejected the application as lacking jurisdiction as soon as it was made. I draw attention to this fact in the hope that this judgment can be drawn to the attention, not only of those who are concerned with drawing up orders in the High Court when it is acting as an appeal court in civil cases, but also for those who are concerned in drawing up such orders in the County Court. If the order of the court is that permission to appeal is refused, it will be completely clear to the Civil Appeals Office that permission to appeal has been refused. It is undesirable that meaningless language such as the words "and this hearing be treated as the hearing of the appeal" should be added to the order. They do not make sense because the judge had refused permission to appeal.
13.   In this judgment I am giving guidance on matters of general application. Accordingly, this judgment is not caught by the prohibition on citation in paragraph 6.1 of the practice direction on citation of authorities. To make the position completely clear, the judgment of this court in Jolly v Jay is similarly not affected by the prohibition on citation in that practice direction.