Olden v National Crime Agency

The Appellant Ronald Olden seeks permission to appeal against the order of His Honour Judge Jarman QC made on 20 September 2016, and issued by the court on 3 October 2016, refusing the Appellant’s application to adjourn the oral hearing of his application for permission to appeal against the Order of District Judge Godwin dated 7 June 2016 adjudicating the Appellant bankrupt. The petitioner was the National Crime Agency (“the NCA”); and the petition debt comprised costs which the court had ordered the Appellant to pay the NCA in respect of claims and applications brought by him against that authority.

The application for permission had been refused by both the District Judge and, on 11 August 2016, by Judge Jarman on the papers. The latter noted then that an application for legal aid had been made in July; but he did not consider that it was in the interests of justice to delay consideration of the application for permission pending an outcome of that application for assistance.

There was a right to have the application for permission to appeal reconsidered at an oral hearing. The Appellant applied for such a hearing on 18 August 2016, but he sought to delay the hearing until the Legal Aid Authority (“the LAA”) had determined the application for legal aid.

On 31 August 2016, the Appellant was notified that the hearing was listed for 20 September. No formal application for an adjournment was made by or on behalf of the Appellant. However, on 1 September, Tuckers Solicitors wrote to the court indicating that they had been instructed by the Appellant in the matter, and they had “begun the process of applying for funding via the [LAA]”. They requested that the hearing set down for 20 September 2016 be adjourned for four weeks to allow sufficient time for funding arrangements to be put in place and subsequent instructions taken. Tuckers did not put themselves on the record: they have never been on the record as acting for the Appellant in this case.

On 19 September, Tuckers were notified that the judge had refused their request for an adjournment. Neither the Appellant nor his solicitors attended on 20 September.

A formal Order made by Judge Jarman on 20 September 2016 confirmed that an adjournment had been refused. In that same Order, he refused permission to appeal from the District Judge; but I stress that the appeal to this court is only in respect of the refusal to adjourn. Indeed, this court does not have jurisdiction to hear appeals from a refusal of permission to appeal in the circumstances of this case.

On 17 November 2016, Lewis J refused permission to appeal in respect of Judge Jarman’s refusal to adjourn; and, on 26 November 2016, the Appellant renewed the application for reconsideration at an oral hearing. On 15 December 2016, a notice was sent to the Appellant notifying him that the renewed application had been set down for hearing at Cardiff Civil Justice Centre – the appropriate High Court appeal centre – on 13 January 2017. On 21 December 2017, a new notice was sent to him giving him a new date of today, 25 January 2017, again at Cardiff.

On 16 January 2017, the Appellant sent a letter to Aberystwyth County Court seeking to adjourn the hearing, on the basis that he was still awaiting a decision from the LAA in relation to assistance with this matter, which, he indicated, had been outstanding since June 2016. It attached an email from Tuckers to the Appellant dated 3 January 2017, which indicated that they had been assured by the LAA that they would receive a funding decision that day.

In addition, in his letter to the court, the Appellant said that he could not represent himself as his health did not permit him to travel to Cardiff and represent himself after such a long journey. No medical evidence was supplied with the letter. In the skeleton argument in support of the current appeal, he says that he is suffering from an autoimmune condition, which means that he cannot read well and suffers from fatigue, and a skin condition; but no medical evidence has been submitted in support of any of those conditions, save that, in the appeal bundle, the Appellant included two letters from the Dermatology Departments of Dolgellau Hospital and Wrexham Maelor Hospital for appointments on 12 October and 8 November 2016 respectively. However, they give no indication of even the dermatological condition from which the Appellant is suffering, yet alone any evidence as to why such condition might prevent him attending court to prosecute this appeal.

In any event, the Appellant’s letter to the court of 16 January 2017 said, the matters concerned were too difficult for him to deal with in person and he could not afford to pay for the journey. He added that, if he were to try and represent himself, he would have nothing to add to his existing written submissions. He suggested an adjournment of the hearing “until well into March”, to allow the legal aid application to run its course.

The letter was referred to me. There was no formal application to adjourn; but I instructed the court office to respond to the Appellant’s letter, which they did in the following terms:

“I have referred your letter to the judge due to hear the application (Mr Justice Hickinbottom), who has asked me to respond as follows. 

The judge is not prepared to adjourn the hearing.  You have provided no evidence in relation to either your health or your financial situation, to support your assertion that you are unable to attend the hearing.  In respect of representation, you are appealing against the refusal of an adjournment, which is not a complex issue.  If you were to appear in person, the judge is confident that you would not be at an unfair disadvantage.  That is a matter which the judge can, and will, keep under review as the hearing proceeds.  However, justice requires reasonably prompt ultimate determination of cases; and, particularly given the delays in this matter to date, the judge does not consider it would be proportionate or otherwise appropriate to adjourn the hearing from Wednesday.”

The Appellant has not attended the hearing today, and no formal application for an adjournment had been made. However, two letters have been received today.

First, Tuckers have written a letter to the Cardiff Civil Justice Centre, dated today. It indicates that funding for the Appellant’s appeal was refused on 9 January 2017; and, as a result of that refusal, they are unable to represent the Appellant. It continues:

“The Court has already been made aware of Mr Olden’s ongoing medical complaints. He suffers from a number of conditions, including partial blindness, a condition affecting his autoimmune system and a severe skin condition for which he is receiving treatment. Mr Olden’s condition is deteriorating, such that it will be impossible for him to attend on 25 January.

We ask the Court to proceed on the basis that Mr olden has no funding by which to arrange appropriate legal representation, neither is he able to attend court and make appropriate submissions as a Litigant in Person.”

The second letter, dated 23 February 2017, was received by Aberystwyth County Court today. It sets out, at some length, submissions in relation to the Appellant’s financial position as being on Employment and Support Allowance and in the Work Related Activity Group, the complexity of the issue involved in the appeal and, to a lesser extent, the Appellant’s health. However, it does so in the context of an overarching submission that it is “essential that we wait to see if [the Appellant] gets Legal Aid”. No further evidence relating to his health conditions is forthcoming, except a letter concerning unnamed medication for an unidentified condition (which, the Appellant says, and I accept for the purposes of today, relates to Stelara injections for his autoimmune condition). The letter makes clear that he wishes to have sufficient time for his legal aid application to be determined, and, in the meantime, he wishes the court to have regard to that which his solicitors have written. He concludes:

“If their representations are unsuccessful I request that the court is mindful of the case I have stated in my written application and added to in my comments above, make whatever order required compliant with my Article 6 rights. I have said all I can”.

There is therefore still no formal adjournment application before me; but the Appellant nevertheless clearly seeks further time to enable him to be represented with the benefit of legal aid. However, the Appellant’s legal aid application was refused over two weeks ago. It is unclear whether he is aware of that refusal; but, even if he has not been told by Tuckers, the Appellant has made it tolerably clear that, if left to prosecute this appeal as a litigant in person – a circumstance that has come to pass – he has already said in writing all that he would have to say. I have considered all that the Appellant has said, and that which Tuckers have said on his behalf. I sympathise with the Appellant, in respect of both his medical problems and his unsuccessful attempts to obtain legal representation. However, I am quite satisfied that he has had every reasonable opportunity to put forward his appeal; and, indeed, that he has set out to the court all that he wishes to say in support of his application for permission to appeal.

In all of the circumstances, it is my firm view that it would not be appropriate, proportionate or right to adjourn this hearing.

So far as the merits of the appeal against the refusal of an adjournment by Judge Jarman, in refusing permission to appeal, Lewis J said this:

“5.

Until the hearing listed on 20 September 2016 was adjourned, as with all hearings, the parties had to proceed on the basis that the hearing would take place and they would need to make arrangements to be represented or attend in person or by video link.

6.

The [Appellant] contends that the decision to refuse the adjournment was unlawful. In the circumstances of this case, such a decision was a legitimate case management decision. The judge had taken the view that the time taken in obtaining a decision on the application for legal aid was not a sufficient reason to justify delay in the consideration of permission to appeal. That was a decision open to the judge to take. The [Appellant] considers that consideration of the application without waiting for the outcome of the decision of the application for legal aid was a breach of Article 6 ECHR and the Civil Procedure Rules. It was not: it was a case management decision he was entitled to reach on the material before him.

7.

The [Appellant] considers that the judge had determined to refuse his application for permission to 19 September 2016. That is a misreading of the e-mail sent to him by at 15.16 on 20 September 2016. The e-mail says that the solicitors had been told “last night” (that is, on 19 September that the application to adjourn had been refused). The e-mail says the writer had just spoken to the court (that is on 20 September 2016) and that the application for permission to appeal had also been dismissed. The natural reading of the letter is that it was refused on 20 September 2016 (and that would be consistent with the fact that the hearing was listed on that day and the order refers to matters being before HHJ Jarman QC on 20 September 2016). The [Appellant] refers also to medical evidence relating to his current health and his means and his inability to attend a hearing in person. There is no evidence that the [Appellant] put any material before the judge indicating that he was not able to attend personally for health or other reasons. He had represented himself in the bankruptcy proceedings before District Judge Godwin on 7 June 2016. As no adjournment was sought on this base, there can be no justifiable criticism of the judge in refusing an adjournment.”

I respectfully agree. On what I have before me, and for the reasons set out by Lewis J, there is no arguable ground upon which Judge Jarman’s decision to refuse an adjournment could be challenged on appeal. I refuse the application for permission.

I direct that a transcript of this judgment be obtained at public expense; and that any further application made respect of this matter must be accompanied by a copy of that transcript.