Bassett v Gateway 2000 Europe

On an application for permission to appeal a procedural order made by consent, an allegation that a litigant in person was too ill or disoriented to protect his interests must be assessed on the best evidence available. The contemporaneous transcript is ordinarily central. An experienced judge is presumed alert to whether a self-representing party can conduct the hearing, although the record may displace that presumption. Coherent, pertinent and informed interventions may establish capacity. Later medical evidence and genuine ill health do not require permission where the hearing record demonstrates capacity. Article 6 of the European Convention on Human Rights does not alter that approach.

Mr Bassett claimed against Gateway 2000 Europe in respect of allegedly defective computers. There was also a counterclaim. At the Uxbridge County Court, the trial could not proceed on 11 January 2001 because a trial bundle had not been lodged. The judge then made an order by consent requiring Mr Bassett to pay the jointly instructed computer expert’s fees and an earlier costs order by a specified date, with dismissal of the claim if he failed to comply.

Mr Bassett did not pay, and his claim was dismissed by a further order on 30 January 2001. He applied to the Court of Appeal for permission to appeal, alleging that illness and medication had left him unable to understand or conduct the hearing when the consent order was made. The central issue was whether that allegation disclosed an arguable basis for setting aside the order.

Pill LJ refused permission to appeal. If necessary, an extension of time was granted. The court’s task was limited to deciding whether the proposed challenge was arguable and could succeed; it was not required to determine the underlying claim or the applicant’s complaints about the conduct of the litigation.

1. The applicant’s principal case was that the consent order had been made when he was incapable of looking after his interests. The court approached that issue on the best evidence before it. The contemporaneous transcript was the best evidence of his condition and conduct at the hearing.
2. The court began with an assumption that an experienced trial judge would be alert to whether a litigant in person was able to conduct his business before the court. That assumption could be displaced if the record showed that the litigant was unable to do so.
3. The transcript was coherent and contained numerous pertinent and informed interventions. Mr Bassett asked about paying the expert’s fees into court, requested an invoice, confirmed that the money would be paid, demonstrated understanding of the order, sought the return of computer material, and addressed the trial bundles. Those interventions showed that he understood the proceedings and was capable of protecting his interests.
4. The court accepted that Mr Bassett had suffered ill health and that a medical assessment made about a month later recorded substantial disability. That evidence did not establish incapacity on 11 January in the face of the contemporaneous transcript. His other complaints were incidental to the issue whether the order was properly made.
5. Article 6 of the European Convention on Human Rights, although part of English law, did not alter the approach. The court had an existing duty to ensure a fair trial and not to strike out a case without good reason. No arguable ground for successfully challenging the order had been shown.

• Court of Appeal (Civil Division): On 4 May 2001, the application for permission to appeal was refused: [2001] EWCA Civ 683.
• U אמרbridge County Court: His Honour Judge McIntyre made a consent order on 11 January 2001 requiring payment of expert fees and costs, with dismissal for non-compliance. The claim was dismissed by a further order on 30 January 2001.