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IN THE SUPREME COURT OF JUDICATURE NO: B1/2000/2412

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHANCERY DIVISION

(EVANS-LOMBE J)

Royal Courts of Justice

Strand

London WC2

Friday 1st September 2000

Before:

LORD JUSTICE PETER GIBSON

and

LORD JUSTICE BROOKE

DONALD PLENDER

-v-

JOHN KENNERLEY HYAMS

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

190 Fleet Street, London EC4 A 2HD

Telephone No: 0171-421 4040 Fax No: 0171-404 1424

(Official Shorthand Writers to the Court)

Crown Copyright

MR MORAES (instructed by the Applicant) appeared on behalf of the Applicant

JUDGMENT

(As Approved by the Court)

 LORD JUSTICE PETER GIBSON:
1.   The defendant Donald Plender applies for permission to appeal against the order made by Evans-Lombe J on 12th June 2000 dismissing Mr Plender's application for permission to appeal to the High Court from the order of His Honour Judge Collins CBE in the Wandsworth County Court on 27th April 2000. By Judge Collins' order possession of 8 Albert Studios, Albert Bridge Road, London SW11 was granted to the claimant, John Hyams, and Mr Plender was ordered to pay Mr Hyams a net sum of £12,000 in respect of arrears and mesne profits at a daily rate of £10.86 until possession is given. The possession order required Mr Plender to give possession by 27th July 2000. Mr Plender seeks a stay of that order which has not yet been enforced.
2.   Mr Plender decided to appeal against Judge Collins' order. He thought that he had to appeal to this Court and that he had 28 days within which to lodge his appellant's notice. But the appellant's notice, which included an application for permission, was not lodged until after 2nd May and so the provisions of the Rules of the Supreme Court, which until that date permitted an appellant 28 days for appealing to this Court, ceased to apply (Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311). Instead CPR Part 52 governs the appeal, including any application for permission to appeal, which lies to the High Court. The stricter time limits of CPR r 52.4(2)(b) apply: no direction having been given by Judge Collins as to the period for filing the appellant's notice, Mr Plender had only 14 days within which to file that notice in the High Court.
3.   Mr Plender had had counsel acting for him before Judge Collins, but thereafter until the hearing before this Court he acted in person, obtaining the assistance of the Citizens' Advice Bureau in the Law Courts ("the CAB") and completing the appellant's notice on 25th May. That was considered on paper by Evans-Lombe J who on 12th June refused the application for permission to appeal, on the ground stated for that refusal being "For non compliance with Practice Direction (Part 52)". No further details of that non-compliance are given.
4.   Even before Evans-Lombe J had given his decision, on 7th June 2000 the CAB wrote on behalf of Mr Plender to Neuberger J indicating that they had not been able to prepare Mr Plender's skeleton argument because they had not obtained a copy of the transcript of judgment. They asked for an extension of time for lodging that skeleton argument. They also on the same day wrote to Judge Collins, asking for an order that a transcript of the judgment of 27th April 2000 be provided to Mr Plender at public expense. On 12th June Judge Collins made that order. The judgment of Judge Collins was subsequently supplied to Mr Plender and lodged with the Civil Appeals Office on 13th July. On 9th August the CAB was informed by an officer in the office of the Clerk of the Lists that the High Court would not reconsider an application for leave to appeal at an oral hearing if the application has been dismissed, following consideration by the judge of the papers, on the ground of non- compliance with the Part 52 Practice Direction. On 14th June Neuberger J extended time for filing a skeleton argument until 27th June. On 26th June Mr Plender filed a skeleton argument.
5.   Mr Plender was unhappy with the decision of Evans-Lombe J. But instead of requesting that the decision be reconsidered at a rehearing pursuant to r 52.3(4), he filed an appellant's notice on 26th June, seeking to appeal to this Court from that decision.
6.   Although Mr Moraes for Mr Plender sought to argue that in the circumstances this Court has jurisdiction to entertain the proposed appeal from the refusal by Evans-Lombe J of permission to appeal from Judge Collins' order, in my judgment it is plain that this Court lacks that jurisdiction. By section 54(4) Access to Justice Act 1999: "No appeal may be made against a decision of a court under the section to give or refuse permission...."
7.   Evans-Lombe J's decision was under section 54 in that Part 52 was made pursuant to section 54. If Mr Plender's proposed appeal from Judge Collins' order is to proceed, Mr Plender must apply out of time for a rehearing of his application in the High Court.
8.   However, this application has been listed before this Court to provide guidance in such cases, and, in the hope that it may provide assistance, I shall comment on the facts of the application.
9.   I have already drawn attention to the absence of particulars of what requirement of the Part 52 Practice Direction had in Evans-Lombe J's view not been complied with. Mr Plender has assumed that the judge was referring to the fact that he had provided neither a skeleton argument nor a transcript of the judgment.
10.   In his appellant's notice Mr Plender refers to the extension of time granted by Neuberger J and submits that as a litigant in person he is not obliged to file a skeleton argument. That is correct: paragraph 5.9(3) of the Part 52 Practice Direction states: "An appellant who is not represented need not lodge a skeleton argument but is encouraged to do so since this will be helpful to the court."
11.   It is therefore doubtful if this is what Evans-Lombe J had in mind.
12.   It may be that the point taken by Evans-Lombe J referred to the fact that in the appellant's notice, which was put before the judge, next to the tick box against "Your skeleton argument (if separate)" Mr Plender had written "to be prepared within 14 days", and there was no skeleton argument provided for the judge. As appears from a letter written on 19th June by the CAB to the office of the Clerk of the Lists, Mr Plender was advised by that office of what was said to be the practice in the High Court, if an appellant indicates in the appellant's notice that a skeleton argument will be lodged within 14 days, to construe that as an undertaking, non-compliance with which would lead to the dismissal of the appeal. If that is the practice, it appears to have no basis in law. It is plain that the litigant in person has given no undertaking, in the sense known to lawyers. The absence of a skeleton provided no justification for the refusal of permission in the circumstances of this case.
13.   Paragraph 5.6(7)(b) requires the provision of "a suitable record of the reasons for judgment of the lower court", and when the judgment has been officially recorded an approved transcript of that record should be provided (paragraph 5.12). When an appellant has not been able to obtain an official transcript or other suitable record of the decision within the time for filing the appellant's notice, the appellant must complete the appellant's notice to the best of his ability on the basis of the documents available (paragraph 5.13). Next to the tick box in the appellant's notice against "a suitable record of the reasons for the judgment of the lower court" Mr Plender wrote: "This I am going to be provided at public expense." Thereby he complied with paragraph 5.7 which directed him to give the reasons why a required document was not currently available. Again it is doubtful if the absence of a judgment provided Evans-Lombe J with a reason for refusing permission.
14.   Another requirement of the Practice Direction is that an application for permission to appeal should be made orally at the hearing at which the decision to be appealed against is made (paragraph 4.6). But paragraph 4.7 provides that where no such application is made, an application may be to the appeal court, and in this case such an application was made to the High Court, which constitutes the appeal court for that purpose.
15.   A point taken by Mr Hyams' solicitors is that Mr Plender did not lodge his application for leave within the time limits laid down. But the time limits are laid down not in the Practice Direction but in CPR r 52.4. However, paragraph 5.2 provides that where an appellant requires an extension of time for filing his appellant's notice, the notice should state the reason for the delay and the steps taken prior to the application being made. Mr Plender merely states that "It would be just and equitable for my appeal, which has merit, to be heard by the Court of Appeal". He also refers to evidence on which he wished to rely as including the fact that he was not informed of the change in the rules on 2nd May 2000 and the fact that with his solicitor he discussed lodging an application but that he ascertained that his solicitor could not do this for him. Whilst the requirement of paragraph 5.2 may be what Evans-Lombe J had in mind, I for my part would not regard this as a proper ground for refusing permission in the light of the knowledge which we now have of Mr Plender's active attempts to launch an appeal. In this context it is appropriate to recognise that some uncertainty surrounded the introduction of Part 52, which, it is to be hoped, has been dispelled by the judgment in Tanfern. It is also right to take note of the fact that Mr Plender, although a litigant in person, properly sought help for his proposed appeal and that prior to Evans-Lombe J's decision steps had been taken to remedy gaps in the documentation to be provided. It may well be that the judge was not aware of the correspondence with Neuberger J and Judge Collins.
16.   I must also comment on the practice, referred to in paragraph 4 above, that the High Court will not allow a hearing for the reconsideration of a decision to refuse permission to appeal on the ground of non-compliance with the Part 52 Practice Direction. I can see no proper basis for that practice in circumstances where the non-compliance is challenged, as it is in the present case. There may well be other circumstances where a hearing ought to be permitted, for example once there has been compliance with the Practice Direction after the refusal of permission on paper.
17.   There is one other point to which I would draw attention. This arises from a complaint by Mr Plender that the decision of Evans-Lombe J breached Article 6 of the European Convention on Human Rights. The Human Rights Act 1998 comes into force on 2nd October. A litigant will have a right to a reasoned decision under Article 6. On an application for leave the judge dealing with the application can, in my view, properly be brief in explaining his conclusion. But, as will be apparent from this judgment, merely to say that the Part 52 Practice Direction has not been complied with may give rise to a real difficulty in knowing what requirement of that Practice Direction has, in the judge's view, not been met. In my judgment the judge should have identified how the Practice Direction was not complied with. I emphasise that this can be done briefly. But it should not be left to the conjecture of the litigant.
18.   I have had the opportunity of seeing the judgment which Brooke LJ is about to give. I agree with it.
19.   For the reasons which I have given this application for permission and the ancillary application for a stay must be dismissed.
20.   LORD JUSTICE BROOKE: I agree.
21.   Much of the difficulty that has arisen in this case stemmed from the fact that the papers appear to have been placed before Evans-Lombe J by the staff in the Clerk of the Lists Appeal Office in ignorance of the fact that the Advice Bureau was engaged in correspondence with Neuberger J, through his clerk, seeking an extension of time for lodging a skeleton argument. We do not know exactly how this came to happen - Mr Plender believed that he had been told by someone in that office that Neuberger J was considering his appeal - but it is a vivid example of the way in which serious difficulties may arise if correspondence is not channelled to judges through the relevant court administrative office.
22.   A further substantial difficulty arose from the fact that although Judge Collins gave an oral reasoned judgment in court on 27th April, no note or transcript of his judgment had been filed at the High Court by the time Evans-Lombe J made his order six weeks later. I am adding this short judgment on my own because I am very conscious, as a former supervisory Lord Justice for County Court appeals, of the delays which have occurred in the past at Court of Appeal level because litigants have not lodged a transcript or note of the judgment with the speed which the proper conduct of an appeal demands. Now that the time for appealing in a case like this has been reduced, it is of even greater importance that such documents are lodged promptly.
23.   All would-be appellants need to realise that the filing of a notice of appeal does not automatically stay the effect of the judgment appealed against, and that an appeal court is unlikely to be able to grant them any relief at all, whether by way of a stay of the order appealed against or otherwise, unless it is able to consider the reasons given by the judge in the court below for making the order under challenge.
24.   In paragraphs 34 and 35 of my judgment in Tanfern I described the need for a suitable record of all judgments to be made. I read into my judgment paragraphs 5.12 and 5.13 of the new Practice Directionpdp-52supplementing CPR Part 52. Three other paragraphs of that Practice Direction are also relevant in the present context:
  
"5.14   Advocates' brief (or where appropriate, refresher) fee includes:
  
(1)   remuneration for taking a note of the judgment of the court;
(2)   having a note transcribed accurately;
(3)   attempting to agree the note with the other side if represented;
(4)   submitting the note for the judge for approval where appropriate;
(5)   revising it if so requested by the judge;
(6)   providing any copies required for the appeal court, instructing solicitors and lay client; and
(7)   providing a copy of his note to an unrepresented appellant....
5.17   Where the lower court or the appeal court is satisfied that an unrepresented appellant is in such poor financial circumstances that the cost of a transcript would be an excessive burden, the court may certify that the cost of obtaining one official transcript should be borne at public expense.
5.18   In the case of a request for an official transcript of evidence or proceedings to be paid for at public expense, the court must also be satisfied that there are reasonable grounds for appeal. Whenever possible a request for a transcript at public expense should be made to the lower court when asking for permission to appeal."
25.   This Practice Direction applies to all the appeals that are covered by Part 52 of the Civil Procedure Rules. So far as paragraphs 5.17 and 5.18 are concerned, it should be noted that an important distinction is made, by implication, between a transcript of a judgment and transcripts of evidence or proceedings. In each case the relevant court must be satisfied as to the matters set out in paragraph 5.17. In each case it has a general discretion, which must be exercised judicially, whether or not to grant the request for the provision of a transcript of public expense. In the case of a request for transcripts of evidence or proceedings, which can be very expensive, it must also be satisfied that there are reasonable grounds for appeal. It goes without saying that any such order must be limited to the provision of such transcripts as are necessary for the fair disposal of the appeal.
26.   It would probably be helpful if general guidance could be given to judges as to the way in which the discretion conferred by paragraph 5.17 of the Practice Direction should be exercised, since we have been told by counsel that the Advice Bureau of the Royal Courts of Justice has encountered a good deal of inconsistency in this regard.
27.   I also wish to emphasise the direction in paragraph 5.18 of the Practice Direction to the effect that wherever possible a request for a transcript at public expense should be made to the lower court. This is very important, because if this direction is observed it will be likely to avoid a lot of the delays which have disfigured the conduct of County Court appeals in the past. We have been told, for instance, that the Advice Bureau at the Royal Courts of Justice, which does commendable work in assisting lay litigants with their appeals, would find it very much more straightforward if it could apply to the High Court for the necessary order than have to incur the delay and often the hassle involved in seeking such an order from the lower court after the case has been disposed of at that court. If the lower court makes such an order, it is essential that it is put into effect by the court's staff forthwith, so that there will then be no avoidable delay in the conduct of the appeal.
28.   It is also essential that arrangements are made by which the appeal court may give any necessary directions under paragraphs 5.17 and 5.18. We understand that the High Court has not yet provided facilities for judges or Masters to make orders of this kind, but it is necessary for appropriate arrangements to be put in place now. In the Civil Appeals Office such applications have been made in recent times to a Deputy Master, with a right to a review or reconsideration by one or more of the judges of the Court of Appeal (for the relevant jurisdiction see now CPR 52.16). I would not wish to be prescriptive about the form any such arrangements in the High Court might take, whether in the Royal Courts of Justice or in a district registry, but since the Practice Direction gives the appeal court the power to order a transcript at public expense, it goes without saying that arrangements must be made whereby judges or Masters of the court are able to exercise that power when an application for such an order is made.
29.   The court has been shown in connection with this appeal a number of helpful documents published this year by the Court Service for the use of would-be appellants. In addition to the clear information contained in the appellant's notice (or the respondent's notice, as the case may be) there is a leaflet entitled "I want to appeal" and another leaflet entitled "Guidance Notes on completing the appellant's notice". These leaflets, helpful as they are, do not include any emphasis on the vital importance of setting in motion the provision of the judge's reasons (whether in a note or in a transcript) as fast as possible as soon as a decision is taken to seek permission to appeal. Until those reasons are available, the appeal court is, as I have said, unlikely to be able to grant any relief at all, a consequence which may be just as prejudicial to the would-be appellant as it will certainly to the efficient conduct of the appeal. Most of the other documents required by the appeal court are already in existence and also all that is needed is that they be copied (if necessary) but filed at the appeal court. The judge's reasons, on the other hand, except in the case of a handed down written judgment, will take time to obtain.
30.   LORD JUSTICE PETER GIBSON: Mr Moraes, I did not check with you, are you appearing pro bono?
31.   MR MORAES: My Lord, yes.
32.   LORD JUSTICE PETER GIBSON: I would like to express our very great appreciation to you for undertaking that.
33.   MR MORAES: My solicitors require some appreciation as well, for preparing the papers quite quickly as did the Royal Courts Citizen Advice Bureau.
34.   LORD JUSTICE PETER GIBSON: We are very grateful.