Hunt & Anor v Acres & Anor

Permission to appeal may be adjourned where a genuinely new and arguable Article 6 issue has not previously been considered, even though earlier challenges to the underlying judgment and compromise have no realistic prospect of success. The absence of legal aid in civil proceedings can, in principle, raise an Article 6 issue where the case is complex and requires emotional detachment, but the issue remains fact-sensitive. An applicant who seeks to reopen points already considered by the courts cannot use a renewed permission application to revisit them. Any question of extension of time may be left to the adjourned hearing where the new point may have merit.

The claimants sought permission to appeal from the Wolverhampton County Court judgment of Judge Fletcher dated 19 December 2000. That judgment gave effect to the Legal Services Commission’s statutory charge over money paid into court following a compromise of the claimants’ building dispute with the defendants.

The claimants sought to reopen the compromise, challenge the judge’s suitability, and argue that the absence of legal aid and legal representation had denied them a fair hearing under Article 6 of the European Convention on Human Rights. Earlier applications concerning the compromise had already been rejected by the Court of Appeal. The central new issue was whether the Article 6 argument required consideration by the Legal Services Commission before permission was determined.

1. Disposition. The application was adjourned on notice to the Legal Services Commission solely to consider the Article 6 point. In all other respects, the application was dismissed.
2. The challenges to the merits of the underlying building claim and to the compromise had already been considered by Judge Fletcher and by the Court of Appeal. They were described as matters which had passed through several stages, with no prospect of a successful appeal. Those issues could not be revisited on the renewed application.
3. The complaint that Judge Fletcher was unsuitable because of a possible connection with another judge and the defendants’ counsel had not been raised on the earlier applications. In any event, it had no prospect of success. A point of that kind should have been raised at the first opportunity.
4. The Article 6 issue was materially different. Airey v Ireland [1979] EHRR 305 recognised that, although civil legal aid is not expressly guaranteed by Article 6, the absence of legal aid in a complex case requiring emotional detachment might breach the Convention. The Court of Appeal had recently considered that issue in Pine v The Law Society (unreported, 25 October 2001), where no breach was found.
5. The court was not confident that the claimants would ultimately establish an Article 6 violation or that the Human Rights Act’s retrospectivity provisions would assist them. Nevertheless, the new point had not been considered below and could not fairly be resolved without hearing from the Legal Services Commission. The court therefore permitted it to be raised at an adjourned hearing on notice.
6. The possible need for an extension of approximately five months was also left for that hearing. The claimants were warned that pursuing the adjourned application could expose them to an adverse costs order.

• Wolverhampton County Court: Judge Fletcher gave judgment on 19 December 2000 in favour of the Legal Services Commission, enforcing its statutory charge over the money paid into court.
• Court of Appeal (Civil Division): The present application for permission to appeal was adjourned on notice on the Article 6 issue only and dismissed in all other respects.