Dobbs v Triodos Bank NV

LORD JUSTICE CHADWICK: At the outset of the hearing this morning, Mr Dobbs (the appellant), who appears in person, has made three applications. He has asked us to consider those applications before he presents his appeal.

The first application is for an order that the proceedings in this appeal be stayed pending the outcome of proceedings which he has commenced before the European Court of Human Rights in Strasbourg. The object of those proceedings is to require the United Kingdom Government to grant him legal aid. He says that the effect of the refusal of legal aid on the Legal Services Commission is that he comes before this court at a serious disadvantage as a litigant in person; and that there is no equality of arms between himself as appellant and the respondent bank represented by counsel, Mr Levy.

He has made an application in those terms to this court before; on 23 March 2005 when it came before Dyson LJ and Neuberger LJ. On that occasion the application was refused for the reasons which are set out in the judgment of Neuberger LJ, with which Dyson LJ agreed. What is now said by Mr Dobbs, in effect, is that this court now is likely to have a better appreciation of the complexity of the issues which will arise on the appeal than the court on 23 March 2005 could have had; given the circumstances in which the matter then came before them.

For my part, I would accept that it is likely that this court does now have a more detailed appreciation of the issues than the court dealing with the application on 23 March 2005 would have had. With that appreciation of the issues, we have to consider whether justice can properly be done in the circumstances that Mr Dobbs is unrepresented. In other words we have to consider whether we have confidence in our ability to understand the issues, and with the assistance of Mr Levy for the respondent -- who we may expect to fulfil his duty to the court by taking us to such authority as there is on those issues -- to reach a just result?

We have considered that question. We are satisfied that the issues and the material before us are such that we will be able to reach a just conclusion upon them; notwithstanding that Mr Dobbs in person may be able to give us less assistance than counsel acting on his behalf would have been able to give on questions of law. So the application that the proceedings be stayed pending the outcome of Mr Dobbs' proceedings in Strasbourg is refused.

The second application which Mr Dobbs makes is for the proceedings to be stayed generally. He puts that application, first, on the very general assertion that any member of the judiciary -- and in particular any member of this court -- will not be impartial in relation to Mr Dobbs' litigation because of the criticisms which Mr Dobbs is making in his proceedings in Strasbourg. Those are criticisms which, as he tells us, include the criticism that the judiciary is likely to favour arguments advanced by professional advocates from the Bar or the solicitors' profession, against arguments advanced by unrepresented litigants. He tells me us that his criticisms are directed, in particular, at me personally. That, he says, stems from my conduct in relation to a hearing on an application for permission to appeal in related proceedings. I refused that application for the reasons which I set out in the judgment which I gave on that day.

It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant -- whether it be a represented litigant or a litigant in person -- criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised -- whether that criticism was justified or not. That would apply, not only to the individual judge, but to all judges in this court; if the criticism is indeed that there is no judge of this court who can give Mr Dobbs a fair hearing because he is criticising the system generally. Mr Dobbs' appeal could never be heard.

In the circumstances of this case, I have considered carefully whether I should recuse myself. Mr Dobbs has not advanced this morning any reason why I should approach his appeal with a disposition to decide against him; other than that he tells me that he is criticising me in relation to past conduct. That, I am afraid, is not a good reason for me to recuse myself. I do not do so. The other members of the court, who are within the rather wider ambit of Mr Dobbs' application, take the same view. So the second application is also refused.

His third application is that the court should indicate, now, that it would order a stay of execution on any judgment on the guarantee (on which he is sued in these proceedings) if it were to dismiss the appeal. That, of course, is a future question which will not arise unless and until the court is persuaded that the appeal should be dismissed; as Neuberger LJ pointed out in his judgment on 23 March 2005.

In that event, a further aspect which will need to be considered is this. The order against which Mr Dobbs appeals is the order of HHJ Havelock-Allan QC, That contains no direction or order for payment of anything. It simply contains two declarations. The task of this court is to consider whether the judge was right to make those two declarations. What happens if the judge's declarations are upheld depends on other orders. It follows automatically from any order which the judge made on 29 April 2002. It is that order which is the subject of this appeal.

We will, of course, consider any application which Mr Dobbs may make if and when it becomes necessary to do so, but it is not necessary to do so at this stage. He can renew the application if it becomes necessary for him to do so when judgment has been delivered on his appeal.

Those preliminary matters now having been addressed, it is for Mr Dobbs to open his appeal against the order of 26 March 2002.