JOHNSON v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant, Roy Johnson, is a United Kingdom national, who was born in 1939 and living in Pennycomequick, Devon, England. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant ran a trout farm in Liskeard, Cornwall, which had been built with money lent by Midland Bank plc (“the Bank”). He lived on the farm premises with his wife. In about 1989, the Bank made a further advance of 30,000 pounds sterling (GBP); this was increased to GBP 50,000 and then to GBP 90,000. The Bank’s lendings were secured by a legal charge on the property which entitled the Bank to claim possession of the property in the event that the applicant and his wife did not comply with an agreed payment schedule. The applicant and his wife failed to make payments. On 24 February 1995, the Bank brought proceedings against the applicant and his wife seeking possession of the farm. It also claimed a monetary sum in the amount of the money still owed to it. By a late re-amendment of its Particulars of Claim, the Bank sought in the alternative a declaration that the property stood charged in equity (in the event that the court agreed with the applicant’s assertion that the legal charge was not valid). The applicant and his wife initially filed a joint defence to the Bank’s claim and acted without legal representation. Subsequently, they ceased to co-operate formally and separate amended Defences were submitted. The applicant’s wife was seeking to argue that she had entered into the legal charge as a result of the undue influence of her husband, about which the Bank knew or should have known. In other aspects the applicant and his wife took identical positions, namely that the Bank’s legal charge was invalid because it was blank at the time of execution and that the Bank had increased the amount of money lent to them without consultation and without their authority. They also pursued an identical counterclaim, claiming a declaration that the legal charge was invalid, damages for deductions wrongly made for bank charges and damages for negligence on the basis that the Bank had exercised undue pressure on them to borrow money from it rather than the Halifax Building Society with which they had also been in negotiation. In May 1996, the applicant and his wife separated. The applicant and his wife sought separate representation. His wife was granted legal aid throughout the proceedings which followed. The applicant was granted legal aid for the purpose of defending the Bank’s claims and making a counterclaim from 15 August 1996 onwards. As was the standard practice, his legal aid certificate was limited to obtaining further evidence and counsel’s opinion on the merits of his defence and the merits and likely quantum of his counterclaim. It was necessary for the applicant to apply to extend his legal aid certificate if he wished legal representation for his trial. In about late 1996 or early 1997, the trial was listed to start on 14 July 1997, and to take five days. On 10 May 1997, counsel for the applicant gave the opinion that, while there was a reasonable prospect of establishing that the legal charge was invalid having regard to the fact that the details of the property were entered into the document schedule after the applicant and his wife had signed, there was no defence to the monetary claim and the applicant would be required as a practical result to sell the farm to meet the monetary judgment. The applicant’s defence that he had not consented to the increase in the loan was entirely without substance while his counterclaim, even if well-founded (which was not the case), was only worth approximately GBP 2,000. He concluded that “it is not possible to say that it is reasonable for the Board to support [the applicant’s] case. I am quite satisfied that the costs of the defence of this action will far outweigh any benefit to the [applicant]”. On 23 May 1997, the applicant’s application to extend legal aid for the trial was received by the Legal Aid Board. On 11 June 1997, the Legal Aid Board wrote to the applicant to inform him that it was considering whether to discharge his legal aid certificate because “in view of Counsel’s Opinion it is not considered you have a reasonable prospect of success in this action”. The letter indicated that if the applicant thought his legal aid certificate should not be discharged, he should write to the legal aid office within 14 days of the date of the letter, and stated that the Board had asked the applicant’s solicitor not to do any work in the meantime. The applicant received the letter on 18 June 1997. On 21 June 1997, the applicant wrote to the Legal Aid Board stating why he considered his legal aid should not be discharged, submitting inter alia that: “The case is extremely complex with volumes of evidence, and documents, over a three year period, with twenty court appearances to date on pre-trial matters and discovery. At present I do not have my files, and evidence, and would explain that I cannot cope with taking on such a mountain of paperwork, preparing my case, representing myself at such short notice, bearing in mind that the trial date is 14 July 1997 for five days.” On 2 July 1997, the applicant’s legal aid certificate was discharged. On 4 July 1997, the applicant sent the Legal Aid Board his notice of appeal against the decision to discharge his legal aid, and asked them to deal with the appeal without a hearing and using written information only. On 14 July 1997, the trial began at Truro County Court, with the applicant representing himself. The Bank and the applicant’s wife were each represented by solicitors and counsel. There had been two pre-trial directions hearings. On 4 June 1997, the judge had ordered that Mr S., the applicant’s solicitor at the time the charge was made, be permitted to lodge a statement and that the applicant’s accountant leave his working file in court. On 12 June 1997, the judge ordered that Mr S disclose his working file. The trial concluded on 18 July 1997. On 22 July 1997, judgment was delivered in favour of the Bank, finding that the applicant’s wife had not been subject to undue influence by her husband, that the Bank’s loan had not been less advantageous than the one offered by the Halifax and that the legal charge entered into by the applicant and his wife was valid. The judge ordered that the applicant and his wife give up possession of the property by 19 August 1997 and pay the Bank the sum of GBP 151,521.10. He rejected the applicant’s application for leave to appeal to the Court of Appeal and also his application for a stay of execution of the possession order. On 5 August 1997, the applicant appealed to the Court of Appeal against the order and applied for a stay of execution of its possession order. He was assisted by his former solicitors in this process under the Advice and Assistance or Green Form scheme (which provided for advice and assistance short of representation in court). His grounds of appeal were inter alia that the judge had erred in the orders made by him on 4 and 12 June 1997, alleging that the order concerning the accountant’s file had the result that the Bank and his wife’s lawyers had access to privileged documents and that Mr S. and a witness for the Bank had perjured themselves. On 11 August 1997, the Legal Aid Board wrote to the applicant and indicated that his appeal would be dealt with shortly by the area committee. A second letter from the Board dated 11 August 1997 stated that the appeal would be considered by the area committee on 20 August 1997. On 12 August 1997, the applicant telephoned the Board. On 13 August 1997, the Board wrote to the applicant in connection with his appeal of 4 July 1997 against the discharge of his legal aid certificate. The letter stated: “I apologise for the fact that we did not action your faxed notice of appeal (received in this office on 4th July) prior to the Court Hearing on 14th July. I consider that we were at fault in either not processing the appeal prior to the hearing or, if that was not possible, at least notifying [the applicant] of that fact.” The letter indicated that the appeal would not be considered, as the court had found against the applicant, informed him that he could apply for legal aid in connection with the application for leave to appeal, and stated that his communication was being treated as a complaint under Stage I of the Legal Aid Board’s complaints procedure. On 21 August 1997, the Civil Appeals Office acknowledged the applicant’s application for leave to appeal and informed him that his application might be decided by a Lord Justice without a hearing, but that in most cases the Court of Appeal would direct that the application be listed for oral hearing in court, and that if the Court of Appeal directed an oral hearing, the applicant would be notified in due course of the hearing date. The applicant and his wife did not give up possession of their property as ordered and, accordinly, on 2 September 1997 the Bank obtained a warrant of possession, authorising an eviction, if necessary, on 24 September 1997. It appears that the applicant rang the Civil Appeals Office to inform them of this fact and to impress upon them the urgency of holding a hearing in his case. It appears that the Civil Appeals Office informed him that the Court of Appeal would decide whether or not it would grant leave to appeal or a stay before 24 September 1997. On 4 September 1997, the applicant telephoned the Legal Aid Board indicating that he wished to appeal against the refusal to grant him legal aid and was notified that his appeal would be heard on 24 September 1997. On about 4 September 1997, the applicant notified the Civil Appeals Office by telephone and in writing that his application for legal aid had been refused, and that his appeal against the refusal was due to be heard on 24 September 1997. On 5 September 1997, the applicant completed a notice of appeal against the refusal to grant him legal aid in connection with his appeal. Also on 5 September 1997, the applicant’s former solicitors wrote to the Legal Aid Board in support of the applicant’s appeal. On 17 September 1997, the Court of Appeal wrote to the applicant notifying him that his application for leave to appeal would be heard on 19 September 1997. The applicant received the letter on 18 September 1997. Also on 18 September 1997, the Legal Aid Board wrote to the applicant and confirmed that his appeal against the refusal to grant legal aid in connection with his appeal would be heard on 24 September 1997. On 19 September 1997, the applicant travelled to London and presented his application for leave to appeal in person, with the assistance of a McKenzie friend (an unqualified adviser) whose first acquaintance with the case was the morning of the appeal. Although the application for leave to appeal was ex parte, the Bank was represented by counsel at the hearing of the application. The applicant applied for an adjournment of the application for leave to appeal, in order that his appeal against the refusal to grant legal aid might be heard. The Court of Appeal refused to grant an adjournment but indicated that if, in the course of the application, it appeared that legal representation was necessary, they would keep in mind the application for an adjournment. After hearing the applicant, the Court of Appeal dismissed the application for leave to appeal. It noted insofar as he appealed concerning the orders of 4 and 12 June 1997, he should have appealed against those orders at the time. As regarded the allegations that privileged documents were disclosed, it found that there was no evidence that any such material from his accountant had been referred to by the judge or taken into account by him in reaching his decision and noted that no objection had been made during the trial to the use of any of those documents. It also found that no reference had been made to privileged material held by the solicitor Mr S. beyond what was inevitable and proper in the circumstances. On 23 September 1997, the applicant telephoned the Legal Aid Board and informed them that he would not be pursuing his appeal against the refusal of legal aid for the appeal, as the application for leave to appeal had been dismissed. The Bank took possession of the farm pursuant to the warrant for possession, and sold it in order to recover the moneys due to them under the legal charge. In order to qualify for legal aid at the relevant time, the applicant had to satisfy the Legal Aid Board: (1) that he was financially eligible for legal aid in that his disposable income and capital fell below that prescribed for these purposes (reg. 27 of the Civil Legal Aid (General) Regulations 1989, SI 1989/339); (2) that he had reasonable grounds for taking or defending the proceedings or making any counterclaim therein (section 15(2) of the Legal Aid Act 1988 (the “legal merits” test);