Dobbs v Triodos Bank NV

An appellate court may proceed despite an unrepresented party’s lack of legal aid where it is satisfied that it can understand the issues and reach a just conclusion with the available material and the assistance owed to the court by opposing counsel.

Judicial criticism by a litigant does not, without an objective reason to anticipate bias, require recusal. Recusal merely because of criticism would permit litigants to influence the composition of the court. An application to stay execution should be determined only if and when the relevant judgment and enforcement question arise.

The appellant challenged an order of HHJ Havelock-Allan QC in the Bristol District Registry which made two declarations concerning a guarantee. Before opening the substantive appeal, he made three applications.

He first sought a stay pending proceedings before the European Court of Human Rights concerning the refusal of legal aid, contending that appearing without representation denied him equality of arms. He next sought a general stay on the ground that criticism made by him of the judiciary, including Chadwick LJ, prevented an impartial hearing. Finally, he asked the court prospectively to stay execution of any judgment on the guarantee if his appeal were dismissed.

The court determined only those preliminary matters before inviting the appellant to open the substantive appeal.

1. The application for a stay pending the Strasbourg proceedings was refused. The court accepted that it had a fuller appreciation of the issues than the constitution which had refused a similar application on 23 March 2005. The proper inquiry was whether justice could be done while the appellant remained unrepresented. The court was satisfied that it could understand the issues and reach a just conclusion using the material before it and the assistance which respondent’s counsel owed to the court. The disadvantage resulting from the appellant’s inability to provide the assistance of counsel on questions of law did not require a stay: per Chadwick LJ at [4]–[5].

2. The application for a general stay based on alleged judicial partiality was refused. A judge should resist recusal merely because a litigant has criticised that judge or the judiciary generally. Otherwise, litigants could influence the composition of the court by criticising judges whom they did not wish to hear their cases. The appellant identified no reason why Chadwick LJ would be disposed to decide against him beyond his criticism of the judge’s past conduct. That was insufficient. Chadwick LJ declined to recuse himself, and the other members of the court took the same view: at [6]–[8].

3. The request for a prospective stay of execution was premature. That question could arise only if the appeal were dismissed. The order under appeal itself contained declarations rather than an order for payment. The consequences of upholding those declarations depended upon other orders. The court would consider any renewed application if it became necessary after judgment on the substantive appeal: at [9]–[11].

4. Having disposed of the preliminary matters, the court directed that the appellant should open his substantive appeal: at [12].

1. Court of Appeal (Civil Division): In this preliminary judgment, [2005] EWCA Civ 468, the court refused the applications for a stay pending the Strasbourg proceedings and for a general stay based on alleged partiality. It deferred the prospective application for a stay of execution as premature. The substantive appeal remained to be heard.

2. Court of Appeal (Civil Division), 23 March 2005: Dyson LJ and Neuberger LJ had previously refused an application in the same terms for a stay pending the Strasbourg proceedings. No citation is stated.

3. Bristol District Registry: HHJ Havelock-Allan QC made the order under appeal, which contained two declarations concerning the guarantee. No citation is stated.