Perotti v Collyer-Bristow (a firm) & Ors

J U D G M E N T

Monday 6th October 2003

1. LORD JUSTICE CHADWICK: There are 23 applications listed for hearing before this court. In each of those applications the applicant is Angelo Perotti. Mr Perotti is an experienced litigant. He appears today, as he has often appeared in the past in this court, to present his applications in person. He has done so with his usual skill and fluency.

2. This court has had, in addition, the benefit of submissions made by Miss Sarah Moore, who has been appointed by the Attorney General as advocate to the court in order to assist us in the matters which we have to consider. We are most grateful for her assistance; and, in particular, for the full and careful written submissions which she has put before us and has made available to Mr Perotti in advance of this hearing. Those written submissions have been of great value in helping us to identify the issues which we have to decide today.

3. Much of the litigation in which Mr Perotti has been engaged stems from the administration of the estate of his late uncle, Mr Lorenzo Perotti, who died in April 1984. Administration of the estate was granted to Mr Kenneth Watson, a solicitor and then a partner in the firm of Mackrell, Turner & Garrett, who has since retired, as attorney administrator for the named executor, Mr Impanni. Mr Angelo Perotti is a residuary beneficiary under his uncle's will. Mr Impanni has since died.

4. On 17th March 1992 Mr Perotti commenced administration proceedings against Mr Watson and others seeking, amongst other things, the removal of Mr Watson as attorney administrator. Those proceedings eventually came on for trial before Rimer J in the Chancery Division in early 1997. The trial lasted some 20 days and Mr Perotti was successful in part and unsuccessful in other parts. Mr Watson was allowed three quarters of the costs of defending the proceedings and given permission to take those costs out of the estate. That has had the effect of exhausting the assets in the estate in the payment of the costs of litigation.

5. Mr Perotti's appeal against Rimer J's decision was dismissed in this court in February 2001, and his petition to appeal to the House of Lords has been refused.

6. One of the applications before us, 2003/0577, seeks permission to appeal an order of Rimer J made on 3rd March 2003 dismissing Mr Perotti's application to reopen the judgment and order which that judge had made in the administration proceedings in February 1997.

7. Mr Perotti was represented in the administration proceedings, for part at least of the time, by solicitors and counsel. Following his failure in those proceedings, he commenced further proceedings - the "negligence" proceedings - against those former legal advisers, alleging negligence in relation to their conduct of the administration proceedings on his behalf. The negligence proceedings were heard by Lindsay J at a trial in October and November 2002, and judgment was given on 31st January 2003.

8. Fourteen of the applications now before this court, A3/2003/0552, 0552(A), 0553- 0562, 1608 and 1610, arise directly out of the negligence proceedings. I shall describe them in more detail later in this judgment, but I should mention at this stage (i) that 2003/0552(A) is an application to appeal or review a decision of Master Venne refusing to order the provision of transcripts of evidence at public expense, and (ii) that the remainder of those applications are for permission to appeal from orders made by Lindsay J in the course of the trial, or, in the case of 2003/0562, for permission to appeal the order made at the conclusion of the trial dismissing the proceedings with costs. That group comprises the bulk of the applications.

9. The remaining nine applications fall into five groups. First, 2003/0393 seeks permission to appeal an order made by Hart J on 7th February 2003 in proceedings brought by Mr Perotti against another firm of solicitors, Arnander Irvine & Zeitman, and others, in which the judge refused applications for permission to appeal from orders made by Master Moncaster on 29th and 30th July 2002 and refused to order that Mr Perotti be provided with legal representation on the applications of the appeals. There being no right to appeal from an order refusing permission to appeal, the only live application under that reference is for permission to appeal against Hart J's refusal to order legal representation.

10. Second, 2003/0906 and 0907 and 2003/1662. Applications 0906 and 0907 are applications for permission to appeal against orders made respectively by Blackburne J on 9th April 2003 and by Neuberger J on 10th April 2003, on an application by Mr Watson for what used to be known as an Ebert v Venvil order but is now, following a decision of this court in Bhamjee v Forsdick & others [2003] EWCA Civ 11, properly to be described as an extended civil restraint order.

11. On 9th April 2003 Blackburne J dismissed an application to have the hearing fixed for 10th April adjourned. On 10th April Neuberger J dismissed a renewed application for an adjournment of that hearing and made a civil restraint order in substantially the form sought by Mr Watson. It is not wholly clear from Mr Perotti's appellant's notice in 2003/0907 whether he seeks permission to appeal only from the dismissal of his application to adjourn the hearing or also from the extended civil restraint order that was made, but I will assume that the application covers the substantive restraint order as well as the refusals to adjourn.

12. 2003/1662 is indirectly linked to the earlier order in 2003/0907 because that is an application for permission to appeal the refusal by Rimer J on 22nd July 2003 to grant Mr Perotti the permission which he needed under the terms of the restraint order made by Neuberger J on 10th April 2003 to apply in the Chancery Division for an order staying the sale of his former home known as 43A Ridgmount Gardens, WC1.

13. Third, 2003/1293 is an application for permission to appeal against an order by Holman J on 6th June 2003 affirming, save as to the provisions as to costs, orders made by District Judge Maple on 6th and 7th May 2003 for the transfer to the Chancery Division of an application for a grant of administration under section 116 of the Supreme Court Act 1981 following the death of Mr Impanni in the previous year and a counter- application for a grant of administration debonis non to Mr Perotti. The issue on that application, in broad terms, was whether the grant should be to the former attorney administrator or to Mr Perotti as residuary beneficiary. The district judge and Holman J thought that that was a matter dealt with better in the Chancery Division, who had had some familiarity with the earlier proceedings.

14. The fourth group comprises 2003/0322 and 0322(A) and 2003/1193. Those applications arise in proceedings brought by Mr Perotti against three firms of solicitors, Barlow Lyde & Gilbert, Griffe & Co and Biddle, and also against Mr Watson and a barrister, Mr Sempkin, under reference HQ/02X00856. In those proceedings Master Leslie had made orders on 20th January 2003. Mr Perotti sought to appeal those orders to a High Court judge. He came before Gross J on 3rd February 2003. Gross J refused Mr Perotti's application that day for provision of transcripts of Master Leslie's judgments to be provided at public expense. It is that order which is the subject of the application 2003/0322.

15. On 2nd April 2003 Master Venne made an unless order requiring Mr Perotti to lodge bundles which conformed to the usual requirements of this court and refused transcripts of his judgment at public expense. 2003/0322(A) is an application to review or set aside that order.

16. On 15th May 2003 Hooper J refused a stay of all proceedings in that action until 28 days after a hearing in this court - a hearing which is this present hearing. The application for permission to appeal Hooper J's order is the subject of 2003/1193.

17. Finally, 2003/1626. That is an application for permission to appeal from an order made on 1st July 2003 by His Honour Judge Green QC dismissing Mr Perotti's appeal under section 204 of the Housing Act 1996 against a decision of the London Borough of Camden, as the local housing authority, that he, Mr Perotti, was not a homeless person who was in priority need for the purposes of section 189(1)(c) of that Act.

18. I now return to examine in more detail the applications which have arisen out of the negligence proceedings. 2003/0562 is what may be described as the substantive application; that is to say, application for permission to appeal from the order made following the conclusion of the trial. 2003/0552 is an application for permission to appeal against the judge's refusal at the outset of the trial on 22nd October 2002 to adjourn the trial so that Mr Perotti could seek legal representation. 2003/0553, 0555, 0558 and 0559 are applications for permission to appeal against further refusals of applications to adjourn made by Mr Perotti during the course of that trial. 2003/0554 is an application for permission to appeal against an order that Mr Perotti provide original documents to the defendants so that they could be photocopied. 2003/0556 is for permission to appeal against the judge's refusal to allow an amendment of the statement of claim, and 2003/0557 is for permission to appeal against a refusal to direct the issue of a witness summons. 2003/0560 and 0561 are applications for permission to appeal against the judge's refusals to recuse himself from further hearing of the trial.

19. Part A in section 10 in each of the appellant's notices in 2003/0552 to 0562 is in a very similar form. Paragraphs 1 and 2 are in these terms:

"I apply for an order that:

1. That the Court of Appeal do provide me with legal representation in this application for PTA herein whether pursuant to the common law and/or the European Convention on Human Rights, ECHR, as shown in the Human Rights Act 1998 and/or otherwise et cetera and inter alia and that the hearing of this application be adjourned generally in the meantime.

2. Failing paragraph 1 above: that the Court of Appeal do grant me permission to appeal herein so that I may obtain automatic legal representation and that the court do adjourn generally the hearing of this application in the meantime so that my lawyers can be fully and properly instructed et cetera."

And then, by way of explanation, a note in these terms:

"Explanation: where a litigant in person obtains permission to appeal the RCJ Citizens Advice Bureau will provide the litigant with legal representation by the Bar Pro Bono Unit. Please note that in these circumstances legal representation is guaranteed ."

The applications under section 10 continue on the basis that the applications under paragraphs 1 and 2 fail. They ask for the application for permission to appeal to be heard on notice with appeal to follow if permission is granted, and there are many other applications for directions. The subsequent applications, 2003/0577, 0906, 0907, 1193 and 1293 contain the same request in very much the same terms; as does application 2003/0322.

20. It is clear that the question whether Mr Perotti should be granted legal representation for the hearing of these applications ought to be decided before the court proceeds to determine the applications themselves on their merits. If the court were to make the orders which Mr Perotti seeks, then time would have to be allowed for legal representatives to be instructed. If the order directing legal representation is refused, then Mr Perotti must be given some opportunity to prepare himself to present the applications for permission to appeal in person, or to make other arrangements of his own for legal representation.

21. It was in those circumstances that all these applications have been listed together for a hearing on the preliminary question whether the court should accede to any, and if so which, of these various applications that the court provide him with legal representation. In recognition of the importance of that issue to Mr Perotti, the court thought it right to seek the assistance of an advocate to the court. That assistance has been provided in full measure, for which we are grateful.

22. Put in the terms in which Mr Perotti seeks his relief, namely that the court do provide him with legal representation, the answer, as it seems to me, to the applications which he makes is an unequivocal "No". This court has no power in civil proceedings - comparable to that conferred by paragraph 2(1) of Schedule 3 to the Access to Justice Act 1999 in criminal proceedings - to grant a right to representation. It must be borne in mind that, where the power conferred by paragraph 2(1) of Schedule 3 of the 1999 Act is exercised in criminal proceedings, it gives rise to an obligation on the Legal Services Commission to fund the representation as part of their functions in providing the Criminal Defence Service: see sections 12(3) and 14 of the 1999 Act. There is no parallel obligation imposed on the Commission in respect of civil proceedings; and no comparable power to grant legal representation in the court.

23. The powers of the Legal Services Commission in relation to civil proceedings arise in the exercise of its functions in the provision of the Community Legal Service: see section 4 of that Act. Section 4(1) is in these terms:

"The Commission shall establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs."

The Commission is required to set priorities for the funding of its services as part of the Community Legal Service: see section 6(1) of the Act.

24. On the basis that services in connection with the applications for permission to appeal which are now before us would not fall within Schedule 2 to the Act as excluded services, the decision whether or not to fund representation for Mr Perotti would be made by the Commission in accordance with the Funding Code prepared pursuant to section 8 of the Act and laid before both Houses of Parliament by the Lord Chancellor pursuant to section 9.

25. Miss Moore has helpfully drawn our attention to paragraph 6.5 of the Decision Making Guidance given in part C of the Funding Code, which is to be found at paragraph 3C- 049 of the Legal Services Commission Manual. She points out that, as a matter of practicability, it follows from the guidance given in that paragraph that if this court were to indicate that legal representation were necessary to protect Mr Perotti's rights under Article 6(1) of the European Convention on Human Rights, then it is likely that funding would be made available by the Commission. In those circumstances, she suggests, it ought to be possible for Mr Perotti to find a firm of solicitors willing to make the necessary application. The relevant paragraph in the guidance contains the following:

"Article 6 is directly relevant to decision making under the Funding Code. Indeed it is an aim of the Access to Justice Act 1999, and the rules of the Funding Code in particular, to ensure that individuals have the opportunity of a fair hearing in the determination of their civil rights. The Funding Code Criteria seek to achieve this for cases which have sufficient merit to justify public funding. To this extent the Funding Code already takes Article 6 fully into account. The Funding Code Criteria must be applied in every case, but where the Commission has a discretion, for example whether funding should be requested for a case under section 6(8)(b) of the 1999 Act, the Commission will take into account the Article 6 implications for the individual client. It is therefore material to consider when exercising any discretion whether, without public funding, the individual would be deprived of a fair hearing."

26. For my part, I accept that if a court - and perhaps, in particular the Court of Appeal - were to indicate that legal representation was necessary in order to ensure a fair hearing, it would be, at the least, likely, on an application made through solicitors in the usual way, that public funding would be made available by the Legal Services Commission (if of course the applicant qualified on financial grounds). But at the end of the day the decision whether or not to fund legal services in civil proceedings would be a matter for the Commission. It is not for this court, or any other court, to direct the Commission to exercise its discretion to provide funding. Still less, as it seems to me, is it for this court to direct an individual firm of solicitors, or an individual solicitor, to make an application for funding from the Legal Services Commission. The Commission does not itself provide representation in civil proceedings. It does not provide no services under the Community Legal Service comparable in this respect to those provided under the Criminal Defence Service.

27. The question, then, is whether this is a case in which the court ought to express the view that legal representation is necessary to ensure that Mr Perotti has a fair hearing of his applications for permission to appeal.

28. The need to ensure a fair hearing arises, of course, in the context of the rights conferred by Article 6(1) of the European Convention on Human Rights. So far as material, Article 6(1) contains the following provision:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The provisions in Article 6(1) are to be compared and contrasted with those in Article 6(3), and in particular with Article 6(3)(c), which is in these terms:

"Everyone charged with a criminal offence has the following minimum rights ...

(c) to defend himself in person or through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

29. As the Commission observed in Munro v United Kingdom [1987] 52 DR 158, it must be assumed that in making specific provision in Article 6(3(c) for the right to free legal services in relation to criminal matters, and in not making the same specific provision in relation to civil proceedings, a difference of approach was intended. There is no obligation imposed therefore, in express terms, to provide free legal representation in civil cases. Nevertheless, it is not in doubt that one aspect of the right to a fair hearing, conferred itself in terms by Article 6(1), is effective access to the courts. The point is made in Airey v Ireland [1979] 2 EHRR 305, 314 at paragraph 24. The European Court of Human Rights said this:

"The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. It must therefore be ascertained whether Mrs Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily."

30. That may be contrasted with the position in relation to criminal proceedings, where the right is an absolute right. The contrast was emphasised not only in Munro , to which I have just referred, but also by the Commission's observations in X v United Kingdom , noted at 6 EHRR 50, page 136. It is said there:

"In this respect the Commission recalls that unlike the situation concerning criminal proceedings, (cf Art 6(3)(c)), the Convention does not guarantee as such a right to free legal aid in civil cases. Only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings, can such a right be invoked by virtue of Art 6(1) of the Convention (cf Airey v Ireland...)"

31. Miss Moore suggests in her written submissions, in my view correctly, that the obligation on the state to provide legal aid arises if the fact of presenting his own case can be said to prevent him from having effective access to the courts. But a litigant who wishes to establish that without legal aid his right of effective access will have been violated has a relatively high threshold to cross.

32. It is, in my view, important to have in mind that however much this court, and indeed any other court, would welcome the assistance that can be given by a legally qualified and competent advocate, the test is not whether (with such assistance) this court would find it easier to reach the decision which it has to reach on the facts of the case. This court, and other courts, have ample experience of cases in which the material is not presented in an ideal form; and have not found it impossible to reach just decisions in such cases. The test under Article 6(1), as it seems to me, is whether a court is put in a position that it really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter on which it has to decide. In such a case it may well be said that a litigant is deprived of effective access; deprived of effective access because, although he can present his case in person, he cannot do so in a way which will enable the court to fulfil its paramount and over- arching function of reaching a just decision. But it is the task of courts to struggle with difficult and ill- prepared cases; and courts do so every day. It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do - that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts.

33. How then should those principles be applied to the present applications? It is important to keep in mind that these applications are applications for permission to appeal. Save in the few cases where the application is for permission to bring a second appeal, the threshold for obtaining permission to appeal is set relatively low. The question for the court is: does the appeal have a real, as distinct from fanciful, prospect of success? The court is not concerned on an application for permission to appeal to satisfy itself that the applicant will succeed. The court has to do no more than satisfy itself that there is a real prospect of success; that is to say, it has to identify the points that would be argued on an appeal and consider whether those points can be described as properly arguable.

34. In those cases where the application is for a second appeal, the test is a higher one. It is necessary to show some important point of principle or practice or some other compelling reason why a second appeal should be entertained by this court. In my experience, this court is usually well able to determine whether there is an important point of principle or practice, and well able to decide whether there is such a sense of underlying injustice that, absent a point of principle or practice, this court should, nevertheless, be ready to interfere on a further appeal.

35. It follows, therefore, that the scope for advocacy on an application for permission to appeal is relatively limited. That itself is recognised by the time that is normally allowed for such applications if made in court. The court takes the view, as a pragmatic matter, that it should normally be possible to determine within 20 minutes or so whether the hurdle is surmounted.

36. In my view, there is nothing in any of the applications which Mr Perotti seeks to make to this court which requires the provision of legal representation in order to enable the court to grasp the principles involved and the facts material to those principles when called upon to decide whether there is a real prospect of success; or, in the case of applications for a second appeal, whether there is an important point of principle or practice or whether there is some other compelling reason why the appeal should be heard.

37. I have described earlier in this judgment the nature of the applications for permission. Mr Perotti, in the course of submissions to us this morning, has indicated in clear terms what points he would wish to take in relation to some of those applications had we been hearing the applications on their merits. Having heard him, I have no doubt that a court will be able to deal with the matter justly when it has to decide these applications on the merits and that the absence of legal representation in these applications will not deny Mr Perotti effective access to justice.

38. I emphasise that I make those comments in the context of the applications for permission to appeal. If those applications, or some of them, succeed - which is not the issue now before us - it may well be that in the course of preparing for the appeals points of law requiring research and more detailed analysis will emerge. If so, this court has available to it the privilege of being able to seek the assistance of an advocate to the court on those points. But it would be quite wrong, in my view, either to burden the Legal Services Commission with an obligation to consider providing legal representation on the ground that, without it, effective access would be denied, or to require the Bar Pro Bono Unit (or anyone else) to provide their services free on a general basis. If the need arises in the future I have no doubt that it can be met. I am not persuaded that it arises at this stage and, accordingly, I would not myself give the direction that Mr Perotti seeks or indicate that this is a matter where, absent legal representation, he will be denied effective access for the purposes of advancing his applications for permission to appeal.

39. LORD JUSTICE CARNWATH: I agree.

40. The applications with which we are concerned, summarised by Chadwick LJ, are only the latest in Mr Perotti's long- running legal campaign arising out of the administration of his uncle's estate. I have little doubt that it would have been of benefit to the court, and time and energy would have been saved by everyone involved, including probably Mr Perotti, if the court had been able not only to order payment for legal representation, but also to direct, having done so, that no application should be made by Mr Perotti other than through legal representatives. However, we do not at present have such powers, nor is that the issue. The question, as Chadwick LJ has said, is whether lack of legal representation means that the applicant is deprived of effective access to the court. In relation to the applications which we have before us at this stage, for the reasons given by my Lord, I agree that he is not.

41. LORD JUSTICE CHADWICK: It follows that the applications made in the terms of paragraph 1 in section 10 of the application 2003/0552, and all similar applications in these matters, are refused.

42. It will, I think, go without saying (but I say it nonetheless) that, having refused the application under paragraph 1, the court would not think it right to grant permission to appeal without further consideration of the merits solely so that Mr Perotti would obtain automatic legal representation, thereby bypassing the hurdle which we have indicated in relation to paragraph 1. Nevertheless, these matters remain to be heard on their merits and for that purpose I will (but not now) give directions for their hearing. I will do that in writing, and notice will of course be given to the parties concerned.

43. I will also extend the stay that has at present been granted, or accepted by way of undertaking, from Barlow Lyde & Gilbert in 2003/1662 until after either that matter has been determined or further order in the meantime. Barlow Lyde & Gilbert are to have liberty to apply to discharge the stay, on notice, if they wish to do so; but in the meantime that stay will continue.

Order: Applications made in the terms of paragraph 1 in section 10 of application 2003/0552 and all similar applications refused. Stay accepted by way of undertaking from Barlow Lyde & Gilbert in 2003/1662 extended until after that matter has been determined or further order. Barlow Lyde & Gilbert to have liberty to apply to discharge the stay on notice. Transcript directed to be provided to BAILII.