Wednesday 4 November 1998

JUDGMENT

LORD JUSTICE HENRY: I will ask Lord Justice Clarke to give the first judgment.

LORD JUSTICE CLARKE: This is an application for leave to appeal against the decision of Curtis J on 22 January 1998 in which he refused an extension of time for appealing against the decision of Master Eyre made on 13 November 1997 in which he struck out the writ and statement of claim.

It is not absolutely clear to me whether Master Eyre did so on the basis that the statement of claim did not disclose a cause of action, or whether he concluded that the claim was bound to fail having regard to the evidence that was before him. We have to some extent been handicapped in that we do not have all the evidence which was before the master.

The time for appealing that decision expired on 18 November 1997 whereas a notice of appeal was served only on 8 December. An amended notice of appeal was sent to the Clerk of the Lists on 22 December 1997. The matter came before the judge on 22 January 1998. The plaintiff acted in person both before the master and the judge.

The judge rejected the plaintiff's application on a number of grounds. He recited a series of grounds relied on by the plaintiff which he described as manifest nonsense. For example:

1. Criminal offences including theft and fraud had been committed by the respondent and the respondent was using the appeal to cover them up.

2. The decision by the master was an abuse of process obtained by "lies upon lies upon lies".

3. Public policy makes this appeal mandatory, since the master has reversed no law.

Not surprisingly, the judge regarded those grounds as manifest nonsense. He then considered the plaintiff's case that there had been negotiations between the parties which amounted to an estoppel. He rejected the plaintiff's case based on estoppel. The judge also accepted the respondent's submission that there had been a lack of frankness on behalf of the plaintiff with regard to the appeal and the preparations for the appeal, although he said that he must make his decision on the facts of the case. In that regard he said that the fact that the plaintiff was, or thought he was, trying to negotiate a settlement was no legitimate excuse for failing to comply with the rules and being out of time.

The judge expressed his final conclusions in this way:

"In those circumstances, since the rules are there to be obeyed, and Dr Adoko knows the rules as well as I do, and that they are there for a very good reason, namely that the court has to order its work in an efficient and just way for the benefit of worthy litigants who do keep to the rules and to enable the business to be despatched with the best celerity possible. It is important to remember those facts when one is considering an application of this sort.

In my judgment, there is no genuine excuse for being out of time in this case. I regret to say that I find Dr Adoko, though extremely courteous, confused in his mind and, as I say, there is a lack of frankness, as the respondent has complained about. In those circumstances I unhesitatingly refuse to grant the application for leave to extend time."

Having regard to the preposterous nature of some of the points made by Dr Adoko before the judge, it is hardly surprising that he expressed his conclusions in that forthright way. It is right to have in mind, however, that Dr Adoko was acting in person, and there is one somewhat troubling feature of the case. It appears that no consideration was given by the judge to the merits of the plaintiff's case that Master Eyre had reached the wrong conclusion.

It may well be that the reason why no such consideration was given was that Dr Adoko failed to put those merits clearly and concisely before the judge. However, in principle, it is in my judgment appropriate for a court considering an application for leave to extend time to have regard to the merits of the matter.

This application came before this court on 22 October. On that occasion because, as my Lord, Lord Justice Henry, indicated at the time, the court was concerned to know the basis upon which Master Eyre had reached his conclusion, Mr Aslangul, who appeared for the plaintiff then as he has today, was asked whether he wished to investigate what consideration had been given to the merits before Master Eyre. Mr Aslangul sought an adjournment in order that the merits might be considered.

Since then there have been made available to the court the notes of the argument before Master Eyre and a note of the judgment. The position is that the plaintiff's claim is a claim for damages for libel. The basis of the claim is pleaded in the statement of claim in this way:

"3. On 03/09/96 the Defendant falsely and maliciously wrote and published a complaint to the Professional Conduct Committee of the General Council of the Bar and subsequently, to Barrister Emmanuel Oteng, of and concerning the Plaintiff, the words following, namely that the Plaintiff: 'has been holding himself out to be a solicitor at St Johns...."

In paragraph 4 of the statement of claim the plaintiff alleged a similar publication to the Professional Conduct Committee of the General Council of the Bar and to Mr Oteng, that publication being alleged to include that the plaintiff:

"has been holding out to the public as a solicitor for a number of years and despite numerous complaints about this to you previously, nothing appears to have been done as he is still deceiving the public into believing he is a solicitor."

The statement of claim alleges that that publication was defamatory of the plaintiff and was malicious. The statement of claim is dated 9 December 1996. On 10 January 1997 the defendant served a defence in which he asserted, inter alia, that complaints were made in circumstances of absolute privilege.

When the matter came before Master Eyre, he held that the publication was indeed made on an occasion of absolute privilege. Master Eyre considered the case of Lilley v Roney (1892) 61 LJQB 727, in which a complaint to the Law Society or its equivalent had been held to be made on occasion of absolute privilege, and the decision of this court in Lincoln v Daniels [1962] 1 QB 327. In the latter case it had been held that a complaint to the Bar Council was not made on occasion of absolute privilege but qualified privilege. As I have indicated, it is not absolutely clear to me what material was before Master Eyre when he reached his conclusion. It was no doubt argued before him that the role of the Bar Council and its Professional Conduct Committee is different now from its role in 1961 or 1962.

It is submitted on the basis of such material as is available that even now, as in 1961 or 1962, a complaint to the Professional Conduct Committee of the Bar Council is not itself part of a judicial process. It is submitted that it initiates first an investigative or sifting process and as such should be held to be made on an occasion of qualified and not absolute privilege. It appears to me that, having regard in particular to the analysis of Devlin LJ in Lincoln v Daniels, that submission is at least arguable. It is not easy to make a detailed analysis of it because we do not have the documents that were submitted to the Bar Council, nor do we have a proper bundle of the Bar Council Regulations. Nevertheless it appears to me that the matter requires some further investigation.

While I have every sympathy with Curtis J, faced as he was with some absurd submissions made by Mr Adoko, it appears to me he should have leave to appeal against the decision of Curtis J in order to seek to persuade the Court of Appeal that he has a sufficient case on the merits to justify the grant of an extension of time. On that basis I would allow this application.

I would only add that it is absolutely essential that a proper bundle of documents should be produced for the Court of Appeal containing all relevant material in a proper chronological manner. A separate bundle should be produced containing all relevant documents showing how the Bar Council system and the role of the Professional Conduct Committee works. Otherwise the Court of Appeal will be faced with similar problems to those which have beset us.

LORD JUSTICE HENRY: I agree.