IN THE SUPREME COURT OF JUDICATURE QBENI 98/1409/1

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(Mr. Justice Curtis)

Royal Courts of Justice

Strand

London WC2

Tuesday, 22nd June 1999

B e f o r e :

LORD JUSTICE BUXTON

LORD JUSTICE MAY

LORD JUSTICE LAWS

DR AKENA ADOKO

Appellant

v

HUSSEIN JEMAL

Respondent

(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited

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MR. M. ASLANGUL (instructed by Messrs Attanayake & Co., London, SE17) appeared on behalf of the Appellant/Claimant.

MR. V. LEVENE (instructed by Messrs C. Roberts, London, NW10) appeared on behalf of the Respondent/Defendant.

J U D G M E N T

(As approved by the Court)

Crown Copyright

LORD JUSTICE BUXTON: This is an appeal in defamation proceedings brought by the appellant, Dr. Adoko, against the respondent, Mr. Jemal. The publication complained of in the statement of claim occurred when Mr. Jemal made a complaint to the Professional Conduct Committee of the General Council of the Bar concerning Dr. Adoko.

The history of Dr. Adoko's professional qualifications and engagements is, to some extent, in contention in the case, but it suffices to say that Dr. Adoko was called to the Bar, we have been told, in 1960, and in December 1996, when the statement of claim was drawn, he described himself as a nonpractising barrister. It appears that, since then, Dr. Adoko has been disbarred, we hasten to say on his own application.

The complaint made to the Professional Conduct Committee was that he had, whilst a member of the Bar, albeit a nonpractising one, holding himself out to be a solicitor. That was stated by Mr. Jemal on the standard form provided by the Professional Conduct Committee for the consideration of complaints. It was of that statement, as Dr. Adoko considered defamatory of him, that the statement of claim complained, together with a further statement contained in a letter written by a member of the defendant's staff (the defendant himself being a solicitor) that was also referred to in the complaint to the Professional Conduct Committee. That letter set out certain circumstantial reasons why Dr. Adoko could be said to have held himself out as a solicitor.

Dr. Adoko complained in the statement of claim, dated, as I have said, 9th December 1996, that he had been by the statement categorized as being a liar and also as practising law by deceit.

Pleadings were exchanged, and in the defence put forward by Mr. Jemal, and served in its amended form on 3rd June 1997, whilst the publication itself was necessarily admitted, various claims were made by way of defence, not only a claim of justification, but also that the statement had been published on an occasion of absolute, or alternatively of qualified, privilege.

On 13th November 1997 the matter came before Master Eyre, the defendant seeking to have the proceedings struck out on the ground that the publication had been on an occasion of absolute privilege. Master Eyre acceded to that application. There was argued before him by Dr. Adoko, who appeared on his own behalf, and also by counsel for the defendant, the present implications in the modern structure of complaints about the practice of barristers of the well known case of Lincoln v Daniel: that being a case where a complaint had been made to the Bar Council at a time when the disciplinary function of the Bar was exercised, not in the way it is now, but by the Inns of Court direct. Whether that authority is still valid, and in particular the implications of the various observations in the judgment of Devlin LJ in that case as to the status of complaints, as opposed to the status of adjudications, is a matter that was much contested before the Master, and which is sought to be further contested before this court.

The claimant, Dr. Adoko, still acting in person, appealed against the Master's decision, or sought to do so, to the High Court, the application or the purported appeal being heard by Curtis J on 22nd January 1998. The application to appeal Master Eyre's order was out of time by, I think, some three weeks, and, in the circumstances of the case, the judge understandably addressed that issue as a preliminary point. In his application for leave to appeal Master Eyre's order out of time, Dr. Adoko had set out a series of reasons why indulgence should be granted to him, mentioning the importance of the matter, and setting out a large number of complaints, with regard in particular to what he said had been the conduct of the defendant. Curtis J considered and said in terms that a number of those grounds were, as he put it, manifest nonsense.

Dr. Adoko's substantial ground for saying that he ought to be granted indulgence was that negotiations had been taking place between the parties in an attempt to settle the case following Master Eyre's order, and that he had refrained from filing and serving the notice of appeal until it was clear that those negotiations had collapsed. The judge pointed out that the fact of negotiation is no excuse or reason why the rules of court as to time for appealing should not be observed, and the judge also observed, and in my estimation was justified in doing so, that Dr. Adoko was a barrister of considerable standing and was also at that time acting as a consultant to a firm of solicitors and might be expected to know what was required by the rules of court. Further, the judge scrutinized the correspondence, not all of which was originally before him, which purported to demonstrate the negotiations, and he was not persuaded that anything that could properly be described as a negotiation had in fact occurred. He therefore considered that there was no good reason why the claimant's application was out of time. He said this at page 7 of the transcript:

"... 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 clarity 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."

Dr. Adoko sought leave to appeal against that ruling to this court. He formulated, apparently by his own hand, a notice of appeal, which was dated 23rd January 1998; that is to say, the day after Curtis J had delivered his ruling. Parts of that notice are not, I have to say, wholly easy to understand but, summarizing it as best I can, he complained about the judge refusing to take note of the negotiations; that the judge had found that the delay had not been caused by any process of negotiation; and also and in particular that the judgment of Master Eyre had simply been incorrect. He set out the reasons why that might be thought to be so. That application was refused on paper by Evans L.J., he saying that the judge had been entirely within the boundary of his judgement in considering that an unsatisfactory excuse had been advanced for the delay, and that there was no other ground upon which the appeal should be allowed to go forward.

That application was then renewed to this court, consisting of Henry and Clarke LJJ, on which occasion the claimant was represented by Mr. Aslangul of counsel, who has represented him before us today. That court pointed out that in his judgment Curtis J had not in fact addressed the merits of the potential appeal, there having been some difficulty experienced by the court, which had to adjourn the matter once, in elucidating exactly what was before Master Eyre. The court expressed the view that the submission that the first part of the Professional Conduct Committee's investigation should be regarded as an occasion of qualified and not absolute privilege was at least arguable. It went on to say this at page 7B:

"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.

... 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."

We have had some difficulty today in elucidating what exactly happened after that, but for the purpose of this judgment we are prepared to accept that, soon after that ruling on the part of this court in November, and within the seven days time limit limited for the setting down of the appeal and for the service of the notice of appeal on the respondent, there was produced, apparently by Dr. Adoko on his own initiative, the notice of appeal that is at pages 1 and 2 of the bundle before this court, and upon which it is sought that this appeal before us today should be prosecuted. That reads as follows:

"TAKE NOTICE that (pursuant to the leave to appeal, given by the Court of Appeal on 04/11/98) the Court of Appeal will be moved as soon as Counsel can be heard on behalf of the abovenamed Plaintiff. On appeal from the order of Master Eyre dated 13th Day of November 1997 whereby it was ordered that (a) the Writ and Statement of Claim be struck out (b) action be dismissed as an abuse of process on the ground that the cause of action is absolutely privileged (c) and Certificate for costs for that day's hearing as well for costs of the application ..."

It then asked that the order of Master Eyre be set aside and the case be heard on its merits, and the ground of appeal was said to be that "The Master erred in law in ruling that complaints to the PCC is subject to absolute privilege as opposed to qualified privilege." Nothing more was said. The lengthy four page notice of appeal that had been before this court when it granted leave in November was entirely abandoned. When these documents came to the attention of Mr. Levene, who represents the respondent on this appeal, he drafted a skeleton argument, which said in paragraph 2:

"The Notice of Appeal is wholly defective and purports to be an appeal from the order of Master Eyre. This is of course an appeal from the order of Curtis J",

an observation that was undoubtedly correct. Mr. Levene told us today, and there was no suggestion that this was not right, that that skeleton had been served on Mr. Aslangul some two weeks ago. Mr. Levene expected that some application would be made to amend this defective notice. No such application has been forthcoming. When the appeal was called on this morning, after a number of procedural exchanges which it is not necessary to detail the court drew Mr. Aslangul's attention to the form of the notice of appeal. The defect of this notice is not merely one of form, although in form it is wholly defective since it does not address the order of which complaint is made, and does not address the order in respect of which leave to appeal was granted. Leaving those matters aside, the further problem about this notice is that it concentrates solely and only on whether or not the Master had been right, as a matter of law, in his ruling as to the status of his complaints to the Professional Conduct Committee. That is of course an element that would be taken into account in this appeal, and it is the element in Curtis J's decision that this court identified as being a possible ground for reviewing that judge's ruling. But the case before Curtis J was concerned with an extension of time. When considering an extension of time, the merits of the case are one but only one element that the court has to take into account. Nothing is said in the present notice of appeal as to the other elements in the judgment of Curtis J, or the other elements that this court would have to take into account were it itself to address the matter. Secondly, the mistaken assumption is made, and I have to say is reinforced by what is said in the appellant's skeleton, that the only issue on the merits was in effect whether the statement of claim as pleaded revealed an arguable case, which is an important but not the only point.

Faced with these difficulties, Mr. Aslangul recognized that, if he were to pursue his appeal on the basis of the notice as presently before us, he would inevitably fail. He therefore asked, first of all, for an adjournment so that he could redraft the notice. We refused that application. It is wholly impossible to adjourn the present appeal when there has been more than ample time for putting right whatever it is that has gone wrong, bearing in mind also that not one but two notices of appeal have already been essayed. That application having been rejected, Mr. Aslangul then asked for leave to amend, simply by substituting for the present notice the notice that had been before this court when it granted leave in November of last year; that is to say, the notice at pages 16 onwards of this bundle, dated 23rd January 1998. Mr. Levene opposed that application, pointing out that it came far too late in the proceedings. It had always been open for an application to have been made earlier. It was in fact made, not merely at the door of the court, but only after the difficulties of the present state of the pleadings had been pointed out to Mr. Aslangul. Furthermore, there was an issue as to whether the appeal had been set down in time. It appears that what was set down, we accept within the required time, was the notice of appeal originally before this court; that is to say, the short notice that I have explained. What is now sought to be done, months after the time has expired for setting down, is to replace that with something quite different.

In my judgement, the business of this court cannot be conducted in this way. It cannot be right that, with all the opportunities that existed for getting tackle into order, we are faced this morning with an application to put forward what is really a completely different case (although it has some elements of the case that was originally before us) and to embark de novo on a lengthy and detailed new notice of appeal. It would not be right to allow further indulgence in this case, and for that reason I would reject this application for an amendment. The effect of that is that the appeal stands solely on the notice that is to be found on page 1 of the bundle, which is not only defective in form, but also wholly inadequate in substance. Any appeal on that notice is bound to fail, and in my judgement this appeal accordingly fails in those terms and should be dismissed.

LORD JUSTICE MAY: I agree. Modern litigation culture, both before and since the advent of the civil procedure rules, requires a number of things. One of these is that parties to litigation should cooperate with the court to ensure that litigation is conducted justly and economically. One consideration to be found in rule 1, which sets out the overriding objective, is that the court must, so far as is practicable, allot to individual cases an appropriate share of the court's resources while taking account of the need to allot resources to other cases.

The proposed appeal from Master Eyre came before Curtis J out of time. He had to consider whether to grant an extension of time. He decided not to do so. The application to this court for leave was upon an extended draft notice of appeal. It appears to be that at page 23 of the bundle before this court. It is accepted that a notice of appeal was served on the respondent within seven days of the grant of leave, although I am far from clear what the form of that notice was.

The notice of appeal before this court is a further notice in quite different form. It bears the court's stamp of 1st February 1999. It was originally dated 25th January 1998, but the copy we have has a manuscript alteration to the date, making it 10th December 1998. It purports to be a notice of appeal from the decision of Master Eyre when it should have been from Curtis J. The body of the notice seeks to appeal from the decision of Master Eyre. The single ground of appeal is that the Master erred in law in ruling that complaints to the Professional Conduct Committee are subject to absolute privilege as opposed to qualified privilege. The notice accordingly is against the wrong order of the wrong court. It does not give any ground of appeal to the effect that what Curtis J decided was wrong. The grounds would not support an appeal against Curtis J's order since his order was one refusing an extension of time and that subject is not addressed.

The substance of these problems was drawn to the appellant's attention a fortnight ago when Mr. Levene for the respondent sent his skeleton argument to the appellant's counsel. It was not until this court had, on its own initiative, tried for more than an hour to unravel the mess that the facts which I have related gave rise to that it became clear what had happened to the extent that it has become clear, whereupon counsel for the appellant, on instructions, applied for an adjournment which this court refused.

Counsel's alternative application was in substance to ask permission to amend the notice of appeal, to substitute for it the notice of appeal which was before this court when it gave leave. This application was opposed. I agree with my Lord, Buxton LJ, that the application should be refused. The respondent would be prejudiced if this permission were given today, not least because the wider merits of the claim, going beyond the bare question whether the occasion of the publication was the subject of absolute or qualified privilege, would need to be addressed, were not heralded in the notice of appeal.

In addition, this matter has come before this court in complete disarray. In addition to the matters which I have already mentioned, the appellant failed to do what this court granting leave directed. Clarke LJ said at the conclusion of his judgment that it was absolutely essential that a proper bundle of documents should be produced for the Court of Appeal, containing all relevant material, in a proper chronological order. That this was not done has added to the difficulties of this court and has contributed to the waste of the court's time this morning. In the result, the time of three Lords Justices and the parties and their representatives was wasted for an hour and a quarter trying to sort out the mess so the matter could at least start. At the end of this time, we reached the position where the only way in which the appeal might proceed was upon a wholesale restructuring of the notice of appeal before the court, the application for which was only made after the length of time to which I have referred had occurred. This is not a proper use of the court's time, and, in my judgment, it is neither appropriate nor just that any further share of the court's resources should be allocated to a case conducted in this way. I would therefore refuse leave to restructure the notice of appeal. As a result, the notice of appeal before us does not contain grounds upon which the appeal might succeed. A refusal of leave to restructure the notice of appeal therefore necessarily means that the appeal must fail.

LORD JUSTICE LAWS: I wholly agree with both judgments and with the orders proposed by my Lord. It is disgraceful that this court should have been treated as it has been. The proper and proportionate use of court resources is now to be considered part of substantive justice itself.

Order: Appeal dismissed with costs on an indemnity basis.

(Order not part of the judgment of the court)