“KAFKAESQUE” PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A “TANGLE” AND A “MUDDLE”
In Anwer v Central Bridging Loans Ltd  EWCA Civ 201 the Court of Appeal resolved procedural issues which it described as a “muddle” and “kafkaesque”. The issue was a simple one of whether a litigant was entitled to transcripts at public expense. It became far more complicated.
“A non-lawyer would look at the procedural tangle that this case finds itself in, and be horrified at the muddle, and the time that it has taken to sort it out. Indeed, I doubt whether a lawyer would have a different reaction. When stripped of excess baggage, what Mr Anwer has asked for is a transcript of the judgment (given as long ago as November 2020) which rejected his claims against the respondent, so that he can work out whether or not he has any arguable grounds of appeal. Through inadvertence, confusion, and procedural rules which do not reflect the law, he has not been given a clear answer to that request.”
The appellant was unsuccessful at a court hearing. He applied for a request of transcripts of certain hearings at public expense. The appellant had previously been made a subject of an Extended Civil Restraint Order.
THE CATCH 22 SITUATION
The appellant’s request was put before the Circuit Judge who found that, because the appellant was subject to an ECRO permission to appeal was needed from the High Court and it would then be for the Court of Appeal to determine whether or not a transcript should be made available at public expense.
This was communicated to the appellant by way of letter from the court.
NO SEAL – NO APPEAL
The appellant then sought to appeal that order. The appeal was routed to the Court of Appeal. The Court of Appeal asked the appellant for a sealed copy of the order being appealed. The appellant only had a letter. The Court of Appeal refused to issue an appellant’s notice.
The decision was referred to a Court of Appeal judge who ordered that the matter be heard by the Court.
THE ISSUES OF LAW
The Court of Appeal considered three issues of law.
Was a sealed order required to issue a notice of appeal
The answer to this was no.
“21.In the present day, it is almost inevitable that the determination/decision/order of the judge will be encapsulated in a formal order. It is doubtless for that reason that Practice Direction 52C at paragraph 3(3)(a) requires an appellant to provide (along with the appellant’s notice) a copy of “the sealed order or tribunal determination being appealed”. But it cannot have been the intention of the CPRC when drafting the PD to make the provision of a sealed order some sort of condition precedent: not only would there have been no legal basis for that, but it would have been contrary to CPR 40.3(1)(c), which allows the court to dispense with the need to draw up an order in certain situations; and PD 52C itself which, at paragraph (6) states that, if the appellant cannot provide all the necessary documents in time, the appeal notice must be completed on the basis of the available documents.”
Do requests for transcripts require permission under the ECRO?
The Court of Appeal described this as a “Procedural Bind”. However the answer was again “no”.
Having answered the preliminary issue in the negative, it follows that Mr Anwer can pursue his appeal. But Judge Dight also concluded that this was a matter in respect of which Mr Anwer required permission under the ECRO, so Mr Anwer needs to be able to appeal against that finding too, otherwise he is no further forward. That is a particularly acute difficulty here, because Marcus Smith J made plain that, in his view, permission is not required under the ECRO. Although it appears that Mr Anwer immediately passed that response back to Judge Dight, and resubmitted his requests, he has not received a substantive response.
The procedural bind that arises is that an appeal from Judge Dight’s determination would lie to the High Court. Although the High Court could refer that appeal to this court, it could only do so if it first grants permission to appeal. There is no extant permission in respect of this aspect of the case.
However, with the agreement of the parties and the approval of Ms Davidson, we concluded that the answer to this Kafkaesque tangle was for this court to do what Andrews LJ did in relation to the original preliminary issue. I therefore constitute myself a judge of the High Court for the purposes of granting permission; I hereby grant permission and transfer this aspect of the appeal to the Court of Appeal pursuant to CPR 52.23(1)(a). It seems to me that that is the only course that accords with the spirit of Andrews LJ’s order. It is only if both of the points of principle are answered in the negative that Mr Anwer can make any substantive progress.
Was the appellant entitled to the transcripts being sought?
This matter h ad been remitted to the High Court.
DID THE APPELLANT HAVE A CLAIM FOR DAMAGES?
The answer to that was no.
Mr Anwer has suggested that, in the events which have occurred, he has a claim for damages against Judge Dight and the/or the CoA office. He does not: no such claim exists as a matter of law. There is no applicable cause of action. Judges and court officials cannot be liable in law to litigants, in either damages or costs. CBL were not responsible for any aspect of the history related above, and are therefore not liable to pay any of the costs thereof. Mr Anwer will therefore have to bear his own costs of this appeal.
a) A sealed order is not required before a party can appeal against the determination or decision of a county court judge although, in the vast majority of cases, there should be no difficulty about the provision of such an order;
b) A request for transcripts is not “an application” within the meaning of the standard ECRO and therefore does not require permission under the ECRO before it is made.
Our consideration of these issues has identified a number of improvements that can be made on the face of some of the relevant forms, and a potential amendment to Practice Direction 52C 3(3). Those points have already been taken away by my lord, Lord Justice Birss, to the Civil Procedure Rule Committee.
Mr Clifford, the director of CBL who attended the hearing, was understandably concerned about the procedural complexities, and the attendant costs, that have bedevilled this case. We can only agree. The making of an ECRO is designed to provide protection to the other parties, and to the court and the court staff, from a litigant such as Mr Anwer. For the reasons that I have identified, it is regrettable that the existence of the ECRO in this case has only served to make matters more, rather than less, complicated.
But I should stress that, at least on this occasion, that was not Mr Anwer’s fault. Indeed, on the contrary, Mr Anwer’s original request was itself legitimate in principle (I say nothing about its scope), and it should have been dealt with on its merits at Central London County Court. The position was then made worse by the understandable but incorrect assumption by the CoA office that a sealed order was required before the appeal could be progressed. On this occasion, none of that was Mr Anwer’s responsibility.