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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnes v Tilbrooks Solicitors & Anor [2001] EWCA Civ 2049 (20 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2049.html Cite as: [2001] EWCA Civ 2049

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 20 December 2001

1. LORD JUSTICE CHADWICK: There are listed for hearing three applications for permission to reinstate applications for permission to appeal which have already been dismissed by Clarke LJ in the absence of the applicant on 20 November 2001. Those applications are made by Mr Peter Michael Barnes in proceedings which he has brought against Tilbrooks, a firm of solicitors, and Mr Prentis, a member of the Bar and in proceedings brought against him by Woolwich Plc.
2. At the outset of the hearing today, Mr Barnes invited me to recuse myself on the grounds that I am actually biased, or that there is an appearance of bias. In support that of that application he placed before me a letter dated 19 December 2001 to the Bankruptcy Chambers in the Thomas More Building in which he writes:

"I have made also allegations to the Police which you are aware from the previous CID visit to the Court where my missing (about 15) applications plus supporting documentation which were missing for about a year mysterious reappeared on the Court file. Subsequently I showed the Court proof that only the documents in my letter to the Police have reappeared, yet affidavits were missing which proved my file had been tampered with. This point was also raised before Lord Justice Chadwick.

In the light of recent events I am also making Criminal allegations, which include Mr Justice Patten, Mr Justice Jacob, Lord Justice Chadwick, Registrar Baister and Registrar James."

3. As appears from its face, the letter was written in order to contend that it would be inappropriate for Patten J to deal with Mr Barnes' case; but it is now relied upon as a ground why I should not deal with these applications. The basis for that contention is that I am said to be a party to a criminal conspiracy to conceal missing affidavits. I am unable to recognise any basis for that allegation. It seems to me that no basis has been put forward in the letter.
4. The second ground of the allegation of actual or apparent bias is based on the way in which I dealt with an application made by Mr Barnes in September 2001. Mr Barnes made two applications to me that day. The first was listed for 10am. Mr Barnes appeared at 10.25am when I was in the course of giving judgment. The second was made to me at 5pm when I had finished the day's listed work. It continued, to my recollection, until well after 6.30pm.
5. The applications then before me were for a stay of a possession order. The possession order had been made in February 2001, and had been the subject of numerous applications by Mr Barnes in the county court, in the Chancery Division and, ultimately, to this Court. The order was about to be executed by the bailiffs the following day; as I recall it.
6. I took the view that Mr Barnes had no merits which would justify the grant of a stay: and that his reason for making the applications so late was to face the courts with the dilemma that if they did not grant a stay without notice Mr Barnes would be dispossessed the following day. For the reasons which I gave in the two judgments which I delivered that day, I refused to grant a stay. Mr Barnes asserts that my decision was so unreasonable that it can only be explained on the grounds of bias. I do not accept that my reasoned decision can be so described.
7. The third matter on which Mr Barnes relies is that in the course of this week he applied to relist the three matters which are listed before me today. That application came before me on paper. I took the view that there was no reason why these applications should be relisted as Mr Barnes had requested and directed that they were to remain in the list. I indicated that Mr Barnes could renew his application to have the matters adjourned or relisted if he wished to do so.
8. It is important to have in mind that these applications have already been considered by this Court on the merits by Clarke LJ on 20 November. Mr Barnes seeks to reinstate applications which have been dismissed. In my view, it is important that an application to reinstate an application which has already been dismissed should be heard and dealt with at as early a date as the Court can manage. Mr Barnes says that no reasonable judge would have refused his application for an adjournment and that my decision to refuse it, again, can only be explained on the basis of bias. I do not accept the premise.
9. It is always an unhappy experience for a judge to be accused of bias or apparent bias. If he accedes to the application to recuse himself, the matter will have to be dealt with by some other judge, with the disruption that that is likely to cause to the listing of other matters. So he should not accede to the application without good reason. But, if the judge refuses to recuse himself, then the applicant is bound to be left with an increased sense of grievance arising from that refusal. In those circumstances, the best that a judge can do, when faced with such an application is, first, to remember that it is his duty to hear the matter listed before him unless there is a good reason why he should not do so. It is not sufficient that he might prefer not to do so in order to avoid a situation in which the applicant thinks that his judgment is tainted by bias.
10. The second requirement is that the judge should apply the test, now well-known and recently reformulated in the House of Lords in McGill v Porter [2001] UK HL paras (95-105), that a judge should not hear a case if a fair-minded and informed observer would consider that there was a real possibility that he might be biased. The fair-minded and informed observer must take into account all the facts that are known. Having taken into account all the facts that are known - including the fact that on both previous occasions I have given reasons for the decision which I reached - I am firmly of the view that a fair-minded and informed observer would not draw the conclusion of a real possibility of bias.
11. In those circumstances, whatever my personal preference might be, I am bound to dismiss this application to recuse myself.
12. The next application that Mr Barnes makes to me is for a declaration that the omission of Article 13 of the European Convention on Human Rights from the Schedule to the Human Rights Act 1998 is itself incompatible with the rights given by that Act of 1998. In effect, he seeks a declaration that the 1998 Act is incompatible with a Convention right which is not given by that Act.
13. The proposition has only to be stated for the absurdity to appear. The power to make declarations of incompatibility is a power (exercisable after hearing the Crown) to declare that some provision of some enactment is incompatible with the rights given by the Human Rights Act 1998. It is impossible for the Human Rights Act itself to be incompatible with the rights which it confers; or to be incompatible with rights which it does not confer. The position is that, for reasons which no doubt seemed good to the legislature, Article 13 of the European Convention on Human Rights was not included in the Schedule to the 1998 Act. Accordingly some act or omission that would be, or would be perceived to be, a contravention of Article 13, would not (for that reason alone) amount to a contravention of the provision of the Human Rights Act 1998. The application is dismissed.
- - - - - (After further submissions)
14. Mr Barnes applies to have these applications to reinstate adjourned because he claims that cannot have a fair trial. But this is not a trial. Mr Barnes is seeking to reinstate applications for permission to appeal which have already been dismissed by this Court. For that purposes, the bundles which were before this Court when it dismissed the applications for permission to appeal have been provided to the Court; and the Court is in a position to deal with the material in those bundles. Mr Barnes says he does not have the bundles. But he knew the applications were listed for hearing today. He should have made arrangements to bring to court the material upon which he wished to rely. He cannot say that the hearing will be unfair because he has chosen not to do so.
15. Having read the bundles, I am satisfied that the points on which Mr Barnes seeks to appeal are extremely short. They turn on about four documents. Mr Barnes could have had no difficulty whatsoever in preparing himself to present these applications if he had chosen to do so. If Mr Barnes says he is not prepared to present applications to reinstate, that is because he has not chosen to prepare himself. I am not prepared to accede to the application to adjourn on those grounds.
- - - - - (After further submissions) (Judgment in application No 2001/1886)
16. This is an application to reinstate an application for permission to appeal made by the applicant, Mr Barnes, from an order made on 3 August 2001 by Jacob J in proceedings between Woolwich Plc and Mr Barnes. The application before the judge was made by notice dated 10 July 2001. The order sought was an order for the committal to prison of Mr Andrew Skinner, a solicitor and a partner in the firm of Palmers.
17. The history of this litigation, so far as relevant to this application, begins with a hearing in those proceedings on 2 February 2001 in the Cambridge County Court before His Honour Judge O'Brien. Mr Skinner appeared at that hearing on behalf of his firm as an advocate for the Woolwich. Mr Barnes was seeking to resist enforcement of a possession order obtained by the Woolwich in the proceedings. His Honour Judge O'Brien dismissed applications made by Mr Barnes; with the result that an order for possession became enforceable.
18. Mr Barnes sought permission to appeal from the order of 2 February 2001. On learning of the application for permission to appeal, Mr Skinner, on his firm's headed paper and on behalf of his client, Woolwich Plc, wrote a letter dated 3 May 2001 addressed to the Clerk of the Lists at the Court of Appeal, Room WG07. The letter was sent by fax and set out a number of matters which the Woolwich wished the court hearing the application to take into account when deciding whether or not to grant permission to appeal. It asked that Mr Barnes' application for permission to appeal be dismissed.
19. There is nothing in the letter to indicate that a copy of that letter was sent to Mr Barnes. It is plain that Mr Barnes came to know of the letter in due course. It appears to have been disclosed to him by Leverson J - who, no doubt, had found it on the file - on 27 June 2001 when Mr Barnes appeared before him with an application for extension of time for his application for permission to appeal.
20. Mr Barnes to took the view that the act of Mr Skinner in sending the letter to the court in the circumstances which I have described, constituted a contempt of court. He applied by notice dated 10 July 2001 for an order that Mr Skinner be committed to prison and fined on the grounds that, by that letter, he had sought to deceive the court.
21. On the second page of the application notice under part C, Mr Barnes set out the matters upon which he wished to rely; in particular, the application before Leverson J, the fact that he had not been sent a copy of the letter of 3 May, the contention that (as he said) the allegation in the letter of 3 May that Mr Barnes had not made any payments was untrue, and that a solicitor was an officer of the court and was liable for discharge of his duty and should not be attempting to deceive or obstruct the course of justice in favour of his client. His application finished with this sentence:

"I therefore apply for committal and a fine, with a view to passing to Solicitors Disciplinary proceedings to strike off the Roll.

That application came before Jacob J on 3 August 2001. I have been provided with a transcript of the proceedings of that day; including the judge's ruling. The transcript is less than satisfactory, because it was obviously difficult for the tape transcriber, or the shorthand writer, to pick up all that Mr Barnes was saying. But, there is no difficulty whatsoever in ascertaining and following what Jacob J was saying. He turned to the question of the contempt application at page 10 of the transcript. He said:

"What I am going to do is I am going to dismiss this application as frivolous, wholly unjustified. The application doesn't comply with the rules."

22. Mr Barnes intervened to say that it did comply with the rules, it had been checked by the department in every item and every article was ticked.

"MR JUSTICE JACOB: The practice direction requires "claim form must set out in full the grounds of application made and identify severally and numerically each alleged act of contempt". Furthermore I don't believe the act amounts to an act of contempt whatever. That's enough of that."

23. That seems to be the ruling which the judge made when dismissing this application to commit Mr Skinner for contempt. There are also discussions about the rules and the contempt on pages 8 and 9 of the transcript.
24. The question is whether this court would interfere with that decision by the judge. In my view there is no prospect that this court would interfere. Mr Barnes puts forward four grounds:

1. There is no court record and so no fair appeal.

25. There is a clear record of the order the judge made, which is what is required of the court record. There is the usable transcript of the reasons why the judge thought that the application was frivolous and wholly unjustified.

2. The transcript of the application shows an appearance of bias by Jacob J.

26. It is said that he was short tempered. It is plain that Jacob J regarded the application to commit as without substance; and that he said so in trenchant terms. But there is nothing in the transcript to suggest that he did not direct his mind properly to the question.

3. The judge had not read the papers and he was influenced by a letter from Mr Barnes' trustee in bankruptcy

27. I find nothing to suggest that the judge was influenced by the letter from the trustee in relation to the application for committal. Nor is there any substance in the criticism that the judge had not read the papers. There were only two documents to be read. The first was the letter itself and the second was Mr Barnes' application notice. It is plain that the judge had read both of those documents.

4. The letter contains matters by the solicitor which were untrue.

28. If the solicitor wrote knowing untruths in his letter, that would compound any offence that he had committed by way of contempt. But, if sending the letter to the Clerk of the Lists was not in itself a contempt, as the judge found, then the fact that the letter contained matters which Mr Barnes wishes to challenge, does not make it a contempt. It would plainly have been more satisfactory if a copy of the letter had been sent to Mr Barnes. But it is not unusual for parties, against whom permission to appeal is sought, to write to the court office setting out their grounds as to the reasons why permission should not be granted. Invariably, a judge, before whom such a letter is put, will regard it as his duty to ensure that the applicant knows about the letter. That is what happened in this case, when Leverson J disclosed the letter of 3 May 2001 to Mr Barnes on 27 June 2001.
29. The application came before Clarke LJ on 20 November 2001. He refused it for the reasons which he gave in his judgment. He said:

"To my mind, the decision of the judge was justified and there is no conceivable basis on which this court would grant permission to appeal against the judge's refusal to commit Mr Skinner to prison."

30. In his application notice for reinstatement, Mr Barnes says that he was not aware of the hearing on 20 November 2001. It is difficult to understand in why that should be so. The court file indicates that he was notified of the listing. But I will assume that Mr Barnes is correct when he says that the reason why he did not appear before Clarke LJ was that he did not know of the hearing. Nevertheless, in the circumstances that there is no ground for granting permission to appeal in this case, the application to reinstate is refused for it would serve no useful purpose.
31. Accordingly, I make an order dismissing the application for permission to appeal as well as the application to reinstate.
- - - - - (Judgment on applications 2001/1902/1903)
32. The applications before Clarke LJ on 20 November 2001 are applications for permission to appeal against orders made by Gray J on 6 August 2001 in proceedings HQ 01/1903 brought in the Queen's Bench Division by the applicant, Mr Barnes, against Messrs Tilbrooks, solicitors, and Mr Sebastian Prentis, a member of the Bar. I have already explained that Mr Barnes did not appear before Clarke LJ on 20 November 2001. The applications before me are applications to reinstate the applications for permission to appeal which Clarke LJ dismissed after considering the merits.
33. The proceedings were commenced by the issue of a claim form on 26 February 2001. The claim was described as a claim for negligence and damages for injury to health; the damages to be assessed in the region of £500,000. The form was indorsed with the following statement of the claimant's case:

"The defendants accepted instructions in relation to the claimant's problems with Uttlesford District Council.

The Claimant claims:-

(a) damages for negligence in failure to carry out instructions;

(b) damages for negligence in failure of expedition;

(c) damages for producing flawed and negligent advice;

(d) damages to injury to health and business resulting from the foreseeable failure in (a), (b) and (c) above.

Statement of claim and/or particulars of claim to follow."

34. CPR 7.4(1)(b) requires that, where the claimant does not include the particulars of claim in the claim form, the particulars may be served separately either at the same time as the claim form or within 14 days after service thereof. By an application dated 20 March 2001, which was after the expiration of the 14 days limited by CPR 7.4(1)(b), Mr Barnes gave notice of his intention to apply for a 14 day extension of time to lodge and serve particulars of claim. The reason given in the application was that the claimant had been struck down with flu and had not been able to do anything. He also wanted to add interest to his claim and make an amendment for that purpose.
35. Mr Barnes' application was given a hearing date of 16 May 2001. In the meantime, before the hearing of that application for an extension, an application had been made on 13 March 2001 by the second defendant for an order that the proceedings be struck out unless a statement of claim was served. It may well be that it was that application which prompted Mr Barnes' application of 20 March 2001.
36. On 27 March 2001 the second defendant's application came before the Master. The Master made an order on that day in these terms:

"Unless the claimant do file and serve his particulars of claim within 14 days after service of this order upon him, the claim against the Second Defendant be struck out with permission to the Second Defendant to enter judgment for their costs of this action, including costs of this application to be subject to a detailed assessment."

37. The claimant was to pay the second defendant's costs of the application assessed at £717.75.
38. Mr Barnes did not attend the hearing on 27 March 2001, but it is clear that he knew about it. He had faxed a document, described as a witness statement, to Master Prebble on that day. Mr Barnes explained in that witness statement that he was too ill to attend the hearing that morning and would not be able to get the High Court until the afternoon. He went on to say that:

"The application ... is premature. The High Court served the writ with a notice to me. The Claim was issued on 26 February 2001. The Court served the defendant by first class post on 27 February 2001 and it would be deemed to be served by 1 March 2001. The defendant has until 15 March to reply."

39. That may well be right; but, by 27 March 2001, the time to comply had expired.
40. Mr Barnes continued:

"I had no notification from the Court that the Defendant had replied. So far as I was aware a statement of claim should have been served on 15 or 16 March. I have a Doctor's certificate for hearings 12 March and 14th March that I am ill and suffering from a viral infection with temperature. Hence I made the application for further time with supporting documentation for 16 March.

The solicitors made their application on 14 March 2001 which was before the date given by the court of 15 March 01. The application has no witness statement in support, this is blank, and the Solicitors had not received the file from Tilbrooks as of yet, so had no information to back up any claim, other than to try and be clever and run up costs unnecessarily."

41. It is plain from the order of the 27 March 2001 that Master Prebble had read that witness statement. The order refers to a letter from the claimant. So the claim against the second defendant was liable to be struck out unless particulars of claim were served within 14 days of 27 March 2001. That is the effect of an "unless" order in those terms.
42. Prompted, perhaps, by the successful application which had been made by the second defendant, Mr Prentis, the first defendants, Tilbrooks, made their own application for an order that proceedings against that firm be dismissed on the grounds of failure to serve particulars of claim. That application was made by notice dated 17 April 2001; although from the date stamp, it appears to have been filed on 23 April. As I have said, CPR 7.4(1) requires that the particulars of claim must be served with the claim form or within 14 days after service of the claim form. CPR 7.4(2) requires that particulars of claim must be served on the defendant no later than the latest time for serving a claim form. The latest time for serving a claim form is prescribed by CPR 7.5(2). The general rule, in a case where the form is to be served within the jurisdiction, is that a claim form must be served within four months after the due date of issue.
43. The position in the present case is that particulars of claim ought to have been served no later than 14 days after the actual service of the claim (say by 15 March 2001) and, in any event, had to be served before 26 June 2001; four months from the date of issue.
44. The signed copy of the particulars of claim against the first defendants is dated 30 July 2001. There is a document described as particulars of claim against the second defendant, but it is not dated. It is, however, quite plain from the orders made in this case that the court thought that the document had not been served by 27 April 2001; and Mr Barnes has not suggested otherwise.
45. The first defendants' application, made by the notice of 17 April 2001, came before Gray J on 6 August. It is not clear from the papers how the application reached the judge without having been the subject of any prior determination by a Master, but it is unnecessary to enquire. There are a number of ways in which that could have happened. It is plain from his judgment that Gray J took the view in relation to the first defendants' application to dismiss, that he was hearing the application itself; and he was not hearing an application for permission to appeal or an appeal from a decision of the Master.
46. After referring to the provisions of CPR 7.4 the judge said in his judgment in the Tilbrooks' application:

"Mr Barnes points out, firstly, that he did make an application for extension of time within which the Particulars of Claim should be served. It is, however, right to say that no such extension was obtained. Mr Barnes further points out that Master Prebble did on 27 April 2001 stay the action. As to the grant of a stay, that would not answer the application made under CPR 7.4(1), nor, in my judgment, does it answer the application based on 7.4(2). I say that for this reason. Master Prebble stayed the action because Mr Barnes had failed to pay certain costs which had been ordered to be paid. It was therefore a stay which could have been removed if the costs had been paid. I do not think, therefore, that the imposition of stay prevents 7.4(2) from operating. Accordingly, I consider that on this second ground the Particulars of Claim indeed stand to be dismissed and I dismiss the Particulars of Claim against Mr Tilbrook's firm."

47. The judge then referred to what seemed to him to be a formidable obstacle confronting the success of any claim against Tilbrooks: namely, that, after Mr Tilbrook ceased to act, Mr Barnes consulted another firm of solicitors. That would clearly give rise to problems of causation.
48. The judge dealt with the application in relation to the claim against Mr Prentis in these terms. He pointed out that the application before him was an oral application for permission to appeal, renewed after the application had been refused on paper, and that the test he had to apply was whether there was a real prospect of the appeal succeeding. He referred to the short point, namely, that CPR 7.4(1)(b) required service of the claim form within 14 days. He pointed out that the Master's order of 27 March 2001 was made at a time when the particulars of claim had not been served. He said:

"Finally, although I do not rest my decision on this, I read through the Particulars of Claim as they affect Mr Prentis, and it appears to me that this was a claim which would have had very little prospect of success."

49. In relation to the application 2001/1902, the provisions of section 55(1) of the Access to Justice Act 1999 apply. Those provisions require that permission to appeal to this Court from an order made by the High Court on an appeal to the High Court shall not be granted unless the appeal raises an important point of principle or practice, or there is some other compelling reason why the appeal should be entertained in this court. No important point of principle or practice has been identified. In this case the Master made an "unless" order with which Mr Barnes failed to comply. Whether to strike out the claim in those circumstances is wholly a matter of discretion to be exercised with the principles of the Civil Procedure Rules in mind.
50. Section 55(1) does not apply to the application 2001/1903 for permission to appeal in the Tilbrooks' matter. In that case the ordinary test applies, namely, whether an appeal would have a real, as distinct from fanciful, prospect of success. Clarke LJ dealt with the matter in these terms on 20 November 2001:

"The key point is that Mr Barnes failed to serve his particulars of claim in time and Gray J struck out the claim. It is within his jurisdiction to do so, his decision to do so was well within the scope of his discretion and in those circumstances I do not think that an appeal to this court would have a realistic prospect of success."

51. On this application to reinstate I need to be satisfied not only that there was a good reason why Mr Barnes did not appear before Clarke LJ on 20 November 2001, but also that the application, if reinstated, would have a realistic prospect of success. I have already indicated that I will assume that there was a good reason for Mr Barnes' non-attendance on that day. But I am not persuaded that the application has any realistic prospect of success.
52. Accordingly the applications in 2001/1902 and 2001/1903 are dismissed. Permission to appeal is refused. Mr Barnes has asked for leave to petition the House of Lords. There is no power to grant that permission. The rule established in Lane v Esdaile prevents it.
53. Mr Barnes has also asked to be provided with a transcript of this judgment at public expense. The provisions in relation to the power of the court to order a transcript at public expense are found in paragraphs 5.17 and 5.18 of the Practice Direction supplementing CPR Part 52. They require two conditions to be satisfied. The first is that the applicant is impecunious; the second is that there is real prospect of success on an appeal. I am content to assume that Mr Barnes is impecunious; but, since I have indicated that there is no appeal possible to the House of Lords, let alone an appeal with any prospect of success, I decline to order a transcript of my judgment at public expense. A transcript can of course be obtained in the ordinary way.
54. I should add that Mr Barnes applied for permission to tape-record the proceedings. I refused on the grounds that it is undesirable that there should be any possibility of competing records of what has taken place. The court makes provision for recording its proceedings and a transcript of those recordings can be obtained in the usual way. Mr Barnes asked me to deal expressly with the reasons why I refused his application to tape record the proceedings; and that is why I have done so.
55. I should not leave this matter without recording that the court sat to hear what should have been three short applications to reinstate at 3.50pm. It is now 6.32pm. It would be wrong not to record my gratitude to the Associate and to the Shorthand Writer for their willingness to remain so that these matters could be dealt with before the end of this term.
Order: All applications refused.