Lewy v Lord Chancellor's Department [2001] EWCA Civ 600 (10 April 2001)

Neutral Citation Number: [2001] EWCA Civ 600 C/2000/3062 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION CROWN OFFICE LIST (MR JUSTICE OWEN) Royal Courts of Justice The Strand London Tuesday 10 April 2001 B e f o r e : LORD JUSTICE LAWS ____________________ LILLY LEWY Applicant/Claimant - v - LORD CHANCELLOR'S DEPARTMENT Respondent/Defendant ____________________ (Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4A 2HD Telephone 020 7421 4040 Official Shorthand Writers to the Court) ____________________ THE APPLICANT appeared in person ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Tuesday 10 April 2001 LORD JUSTICE LAWS: This is an application for permission to appeal against a decision of Owen J given on 29 August 2000 when he refused the applicant permission to seek judicial review. Silber J had earlier refused permission on the papers. The applicant, Mrs Lewy, has appeared before me this morning in person and addressed me with great courtesy and dignity. Her application for judicial review related in terms to a letter dated 6 March 2000 from a Mr Wasim Khan, an official at the Lord Chancellor's Department. Taken in isolation the contents of the letter do not amount to very much, but they at once indicate (which is certainly the case) that there is a very long background. After an introductory sentence the letter reads: "I am afraid there is nothing I can usefully add to the previous letters you have received from this Department. The points you raised have been thoroughly considered and I believe we have been as helpful as possible in answering your concerns. There is no further information or advice that I can give to assist you and future letters will be placed on file unless they raise new issues that we can deal with." As is plain from the applicant's witness statement, which is attached to her judicial review application, the background unhappily concerns the death of her husband and her allegations of incompetence against a firm of solicitors, Taylor Joynson Garrett, whom she had instructed in relation to a potential claim for damages for medical negligence. In her statement the applicant states that she brought a complaint against this firm to the Solicitors Complaints Bureau. The Solicitors Complaints Bureau made a decision to take no action in respect of the complaints which she laid before them. The applicant then sought to complain against that decision in turn by lodging a complaint with the Legal Services Ombudsman. She was informed by the Legal Services Ombudsman that her complaint would not be investigated because it had been brought outside a three-month time limit within which complaints had to be brought. She then sought many explanations, and she continues to seek explanations as to why this three-month time limit existed. She has argued and submitted, and continues to submit, that it was unjust that such a short time limit was imposed when for instance for a breach of contract claim the limitation period amounted to six years. She has sought to obtain clarification from the Lord Chancellor's Department about it and about other matters ever since April 1997. She has written many letters to officials at the Lord Chancellor's Department and, as she has stressed to me this morning, the Lord Chancellor himself, expressing her dissatisfaction and seeking redress. She first wrote to the Lord Chancellor's Department in April 1997. She did not receive a reply until July 1997. That letter, dated 10 July 1997, following an introductory paragraph, reads as follows: "I understand that you are concerned that the Legal Services Ombudsman is unable to investigate your complaint because more than three months has elapsed since the final decision by the Office for the Supervision of Solicitors. It may be helpful if I explain the terms and conditions under which the Legal Services Ombudsman operates. His office was established under provisions of the Courts and Legal Services Act 1990 to be statutorily independent of both the legal profession and the Government, so that complainants could be assured that their case would be investigated by a lay person who is completely independent from any influence while he carries out his investigation. To preserve that independence the Lord Chancellor is prevented from intervening in his handling of individual cases, although he is responsible for appointing the Ombudsman, and also for approving general directions as to the Ombudsman's discharge of his duties. The Lord Chancellor's direction of 1 January 1991 requires complainants to refer allegations about the professional bodies' handling of complaints to the Ombudsman within three months of notification of the decision. Therefore the Ombudsman is unable by statute to investigate your complaint. Three months had been the time limit for referring cases to the Lay Observer, who previously had responsibility for examining the professional bodies' handling of complaints, and, when the Ombudsman's Office was founded, the same limitation was imposed. I sympathise with your position, but I am afraid that neither the Lord Chancellor nor his officials are able to intervene in your case for the reason given above. However, you will be interested to learn that this Department will shortly be carrying out a review of the role and responsibilities of the Legal Services Ombudsman and the appropriateness of his statutory powers and limitations, including the three-month time limit for referral, will be examined." That letter is signed by Julia Gerrard on behalf of the Department. The applicant was not satisfied with that response. She continued to correspond with the Lord Chancellor's Department and demanded further explanations as to why the Legal Services Ombudsman could not exercise his power or discretion to look into her file. Among the matters she raised were the following: availability of legal aid for "next of kin of illegal immigrants, suspects under arrest and criminals etc .... who die in suspicious circumstances" (see the letter of 10 August 1997). She then expressed concern relating to why the Lord Chancellor has "never seen fit" to require information to be submitted by the Legal Services Ombudsman according to Schedule 3, paragraph 3 of the Courts and Legal Services Act 1990 (see letters dated 6 December 1998 and 3 January 1999). She expressed concern relating to the lack of information provided to next of kin in non-violent suspicious deaths (13 January 1999). The correspondence underlines and highlights the applicant's general dissatisfaction with the way in which she had been treated by the Lord Chancellor's Department, as well as with the Office of the Legal Services Ombudsman itself. That is a dissatisfaction which has plainly grown as time has passed. The bundle of documents which she has supplied, and which I have read, contains the trail of letters and correspondence between the appellant and the Department. It culminated in the letter dated 6 March 2000 from Mr Khan, which I have already read. In her Form 86A setting out her application for judicial review, the applicant seeks relief in these terms: "Proper and complete answers to Mrs Lewy's questions about, inter alia, the origin of the Three Months' Limitation against Clients in favour of Lawyers, the duties and powers of Legal Services Ombudsmen and how often they have exercised them or been required to comply with them, the whereabouts of submissions handed to the then Minister Mr Geoffrey Hoon, etc (See List of approaches (Question) to Lord Chancellor's Department – annexed hereto)." The grounds upon which she seeks judicial review are put in this way: "The Applicant has met with concealment, contempt, delay, dissimulation and evasion at the hands of employees of the Lords Chancellor's Department.... .... The Applicant maintains that withholding essential information is an action in breach of her human rights." In refusing permission on paper, Silber J stated: "Application refused. The letter of 6 March does not state anything which could be the subject matter of judicial review. In any event the contents cannot be impugned on any of the recognised principles. You do not have an arguable case." Before Owen J on 29 August 2000, the applicant had the opportunity to make oral submissions. In his judgment he said: "I have listened to Mrs Lewy and I agree entirely with that decision [of Silber J] and the objections which are made." In her grounds put before this court the applicant asserts: "The learned Judge [Owen J] said that this was not a judicial but a purely administrative matter and told me to go to the Parliamentary Commissioner for Administration. I now submit that it is a question of Contract and eminently capable of being considered by the learned Judge. The existing files must be re-examined in the light of this submission which I will substantiate in Court. As this can only be done by passing the 'MP filter' I have asked both my own MP and another MP whether they are willing to forward my concerns to the Parliamentary Commissioner for attention; their replies (if any) will be submitted to the Court of Appeal.) The Litigant who pays her Court Fees in order to embark upon any Court procedure(s) thereby pays over the consideration in the contract between herself and the Royal Courts of Justice, ie Lord Chancellor's Department. This is an occult contract whose terms are not accessible to any litigant except by studying the 'Court User's Charter', which is said by the Court to 'have no legal validity'. In these circumstances the 'contra proferentes' principle applies. That Litigants be provided with a full statement of the duties of the Court Service and Lord Chancellor's Department with which these two bodies must comply towards Litigants who have fulfilled THEIR part of the unspoken Contract by paying Consideration. That the 'Court User's Charger' be revised to include Lord Chancellor's Department overall, NOT to exclude the Crown Office, to delete 'when we need to reply' from the 'aim' to respond to written correspondence." On 6 April 2001 the applicant submitted to this court a substantial skeleton argument arranged in several sections, all of which I have read. Not all of it is entirely clear, but she complains, as she has done in correspondence, for example, about the system of judicial assistants in the Court of Appeal and of earlier refusals to allow her to record proceedings in court with her own tape-recorder. Overall, she accuses the Lord Chancellor and others of fraud. She relies on the European Convention on Human Rights, on the Access to Justice Act 1999, and on other materials. The applicant will not, I fear, accept it, but I have looked very earnestly to see whether she might have some kind of arguable case for judicial review. She has none. The further time passes from her original complaint, the more unreal what she now has to say has become. Her correspondence with the Lord Chancellor's Department demonstrates to my mind that the suggestion of fraud by the Department or any individual within it is hopelessly imaginary. There is nothing in the original judicial review grounds, nor in the suggestion that she has some kind of contractual right in relation to the three-month time limit as regards the Legal Services Ombudsman (if that is what is asserted). The three-month time limit of which she complained is clearly beyond any sensible legal challenge. I should say a word about the applicant's demands to have a tape-recorder in court, if only because they have figured large in her correspondence. Indeed, it was the first thing she mentioned in the course of her observations to me this morning. A Practice Direction (Tape Recorders ) [1981] 1 WLR 1526 was issued on 19 November 1981. Paragraph 2 of the Practice Direction states in part: "The discretion given to the court to grant, withhold or withdraw leave to use tape recorders or to impose conditions as to the use of the recording is unlimited, but the following factors may be relevant to its exercise: (a) the existence of any reasonable need on the part of the applicant for leave, whether a litigant or a person connected with the press or broadcasting, for the recording to be made;...." When the request was put to me that the applicant might bring a tape-recorder here, I concluded that there is no basis in this case for permission to be granted on any such ground, nor, in my view on any ground. If permission were granted here, it should presumably be granted in practically every case in which it is asked for. That is neither the law nor the practice. The applicant's observations about the court's judicial assistants are very seriously misplaced. The work done by the judicial assistants helps the court and in doing so helps the litigants (not least litigants in person). The applicant asked me, were I to refuse permission to appeal, which I do, to indicate where she might go next. That is not my function. But in any event I do not consider that it would be right, however indirectly, for me to offer spurious encouragement to a hopeless cause. This application is refused. ORDER: Application refused. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII