Case No: B5/2007/1286
Neutral Citation Number: [2007] EWCA Civ 1179
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT 
(HIS HONOUR JUDGE HODGE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 4th September 2007

Before:

LORD JUSTICE RIX
and
LORD JUSTICE TUCKEY
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Between:

	KNOWLES	Appellant
	
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KNOWLES	
Respondent	

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The Appellant appeared in person, assisted by his Wife (via Video Conference) by permission of the Court.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment
Lord Justice Rix:

1.	We are concerned with an application for permission to appeal from the order and judgment of HHJ Hodge QC of 11 May 2007, by which he refused to suspend a warrant for possession of the house where the defendant and applicant Mr Anthony Knowles has been living for practically the whole of his life.  The property is called Juniper Hill, 2 Valley Lane, Cuddington, near Northwich, in Cheshire.  The defendant and applicant, Mr Knowles, is now about 48 years old.  In 1983, when he was (as I understand) a captain in the SAS, he suffered a motor vehicle accident in the course of his military service.  That accident has left him severely brain damaged.  The evidence now before the court, deriving from the Veterans’ Agency and the medical investigations into his war pension and allowances, which may not have been before the judge at the time of the judgment under appeal, demonstrates (see, for instance, the decision of the medical appeal tribunal dated 26 September 1990) that he was then assessed as 85% disabled, of which 80% of his disablement was because he suffered from:

“…extensive brain damage resulting in major behavioural problems, and, though he could take in information and retain it, he was incapable of processing it in a logical fashion.”

2.	That has essentially been his position from the time of his accident, and it may even be that the assessment of his total disablement has risen from that 85% figure to 90%, or even, on the basis of some material before us, 100%; as a result of which Mr Knowles has always been in possession of a moderately large income in the form of pension and constant attendance allowances amounting, at present, we are told, to something in the order of £20,000 per annum.  Whether this has been a factor in his inability to obtain legal aid in this litigation, I am not sure.  We have been told this morning by him or his wife, Mrs Knowles, who has assisted him throughout this litigation, that her understanding is that legal aid has been refused as a result of the nature of the litigation.  We are not sure about that.  

3.	What is the nature of the litigation?  It is this:  following the death of Mr Knowles’ mother in 2003, who up to that time had been in constant attendance on him (although he had married in about 1994 or something of that order, and has a child, a daughter), his sister, Wanda Knowles (who has been and is still living, as I understand it, in America), claimed possession of the property at Juniper Hill, on the basis that she was the sole beneficiary of their mother’s will.  The position appears to have been that upon the mother’s death in 2003, it was thought both by Mr Knowles and by his sister Wanda Knowles that their mother had died intestate.  But some year or more after the mother’s death, a copy of a will made in 1984 naming the sister as sole beneficiary was produced, as a result of which, upon legal advice, Mr Knowles consented to probate of that will, but sought to resist the claim for possession which was initiated by the sister in the Liverpool District Registry of the Chancery Division in June 2005.

4.	Mr Knowles resisted possession on the basis, as set out in his defence, that his mother had promised him that in return for the financial support which he had provided to her since his accident, she would, upon her death, leave the property to him.  He says in his defence that over a period of some 15 years he had provided to her somewhere in the region of £250,000.  He said that that financial support was to the mother (and no doubt included his own maintenance), but was also spent in maintenance of the property, in renovation and improvement, both structural and decorative.  On that basis, he defended the claim on the basis of a constructive trust or proprietary estoppel in his favour.  He also made a claim under the Inheritance Provision for Family Dependants Act 1975, on the basis that his mother had made inadequate provision for him.  Apart from his sister, there is apparently also another brother, Richard, who, however, does not figure in this litigation.

5.	On 24 May 2006 the sister applied to strike out Mr Knowles’ defence and counterclaim in default of a response to the sister’s request for further information of that defence and counterclaim.  There was a further application brought by the sister on 13 July 2006 for an order for possession, and for the strikeout of the defence and counterclaim.  In the meantime, on 7 April 2006 the judge had by consent, in the course of providing directions for trial, ordered that the defendant should deliver possession of the property by 7 June 2006:

“Provided that this order shall be suspended if the defendant shall before the said date provide the claimant with evidence in writing from Mace and Jones that the judgment debt, costs and interest to Mace and Jones, in respect of case No. LV990277 from the estate of Lillian Knowles, have been discharged in their entirety.”

6.	This debt apparently relates to some litigation conducted by the mother before her death, in respect of which Mace and Jones were, I think, the solicitors of the opposing party, in whose favour two orders for costs had been made back in 2000 and 2002.  I will revert in a moment to some further details about that debt.  In any event, Mr Knowles failed before that date of 7 June 2006 to provide the sister with evidence in writing from Mace and Jones that their claim had been discharged in full.  That was one of the grounds upon which, in her application of 13 July 2006, the sister applied for possession.  The basis of her application for the strikeout of the defence and counterclaim was that Mr Knowles had failed to provide a list of documents as directed, and had also failed to provide in full the further information of his defence and counterclaim, as directed.  On 24 July 2006, in the absence of Mr Knowles and his wife, the judge made an order for possession and striking out the defence and counterclaim.  He had received a telephone call on the morning of the hearing (before making that order) from Mrs Knowles, to explain that her husband was too ill to attend, and too ill also for her to be able to leave him to attend herself.

7.	The judge remarked to the solicitor (Mr Bogle of Messrs Hill Dickinson, legal representatives of the sister) in court that morning that Mrs Knowles (the wife) had not, in that telephone conversation, applied for an adjournment.  He therefore went ahead and made the orders that I have indicated.  Nothing thereafter happened until the spring of this year 2007.  By Mr Knowles’ application of 30 March 2007, stamped in the Manchester Registry on 2 April 2007, Mr Knowles applied to suspend possession of the property:

“So that I may be granted time to apply for an application/leave to appeal out of time and therefore appeal against the court order of 26 [sic, in fact 24] July 2006 granting possession.”

8.	The evidence of Mr Knowles on that application notice indicated, at any rate in the light of further material subsequently before the court, that, although this was not said expressly, the reason why possession was resisted was not simply so that Mr Knowles could be left in possession of the property without any right to be there, but so that he could advance his case of constructive trust, proprietary estoppel, or claim under the 1975 Act.  His evidence at that time said that he had received conflicting advice as to how best to proceed.  That application, together with the sister’s own writ for possession dated 2 April 2007, came before HHJ Hodge on the 11 May 2007, following a two week adjournment granted to Mr Knowles to enable him to provide evidence to the court of his medical condition, which was relied upon in explanation of the delay which had taken place between the 24 July 2006 order and the application of 30 March 2007.  

9.	It is not entirely clear what medical evidence was before the judge on 11 May 2007, but my present understanding is that, so far as medical documentation is concerned, the only document before the judge was a letter or report dated 30 April 2007 from a Dr Halpin, Mr Knowles’ GP, headed “Regarding his medical history over the preceding 18 months for use in court regarding a disputed will”, which gave details of Mr Knowles’ medical condition or attendances, or indeed non‑attendances, upon doctors between about November 2005 and the date of the report.  The report referred to Mr Knowles’ severe head injury in 1983, but only in the context of “chronic headaches following a severe head injury in 1983”.  The report did not itself state that Mr Knowles was severely brain damaged or disabled as a result, although that contention was before the court in the form of evidence from the wife, Mrs Knowles (see her witness statement of 2 May 2007).  The judge, in his judgment of 11 May, went through the history of the litigation, and observed that the condition of suspension of the possession order of 7 April 2006 had not been met, and that there had also been a failure to provide a list of documents and the further information requested.  It is plain from the judge’s judgment that he did not regard Mr Knowles’ medical condition as being in any way an explanation of those failures or the delay which had taken place since 24 July 2006.

10.	He said on two occasions that he found Mr Knowles to be “fluent, lucid and articulate” (see paragraphs 29 and 37 of the judgment).  He referred to the doctor’s report, which I take to be a reference to Dr Halpin’s report, and concluded that the medical evidence did not justify Mrs Knowles’ submission on behalf of her husband that Mr Knowles suffered a “lack of life … constant pain … downward spiral … condition shocking”.  Having found that there was no medical reason to justify the delay, the judge asked himself what the explanation for the delay was, and found there was no good explanation and that, on the contrary, the delay was intentional, as demonstrated in part by the absence of any good reason for the failure to provide further information or the list of documents, or the failure to deal with the Mace and Jones debt.  The judge said, “The Defendant is acting in person.  The responsibility is his.”  The judge nowhere refers to the possibility, in evidence before him as I have pointed out, only as a matter of Mrs Knowles’ witness statement, that Mr Knowles was severely brain damaged.  That, as I understand it, was the state of the evidence before the judge.  

11.	Now, following that judgment (albeit 17 days out of time) Mr Knowles by his notice of appeal filed 18 July 2007 seeks to appeal against that order and judgment refusing to suspend the order for possession.  Again, there is no express appeal against the important or substantive order of 24 July 2006, but the notice of appeal does state in a number of places that Mr Knowles would like to appeal the order of 24 July 2006 – see, for instance, under section 5 and again under section 8 of the notice of appeal, where he says:

“I am an exceptionally severely disabled war veteran and it will be very difficult for me to vacate my house and find an alternative accommodation in short notice.  I would like the opportunity to resolve all outstanding matters regarding the estate in question, and would like to be given a chance to prove an estoppel exists with regards the estate.”

12.	This morning, in the course of a video hearing during which we have heard from both Mr Knowles and his wife Mrs Knowles, we understand why the judge may have considered that Mr Knowles is able to speak with fluency and a degree of lucidity; but nevertheless, the evidence of Mr Knowles’ difficulties that is now before the court renders me concerned that the judge on 11 May 2007 did not have the proper medical position before him.  He had been told by Mrs Knowles, but he does not appear to have accepted her submission before him on that day, that the two week adjournment had not given her time to obtain from the Veterans’ Agency the documentation that is now before this court.  That goes to Mr Knowles’ medical condition as an explanation of his difficulties in this litigation, and it is the major plank of Mr Knowles’ grounds of appeal before us today.  Nevertheless, and beyond that, Mr and Mrs Knowles have confirmed to the court this morning that they do wish and intend to appeal against the underlying order of 24 July 2006, both in respect of the order for possession and in respect of the strikeout.  So far as the strikeout is concerned, there is material before us to suggest that over the many years between the orders of the court which found this application and the Mace and Jones debt, going all the way back to July 2001, there had been a continual (if sometimes intermittent) payment at the rate of essentially £250 per month, with some months missed, to Mace and Jones from the late mother and subsequently Mr Knowles, concluding with a lump sum payment of £2,877 odd made on 4 April 2006 in the immediate run up to the hearing of 7 April 2006 when the suspended possession order was made.

13.	On the evidence before the court that day, such as for instance, that coming from probate and also from Mace and Jones themselves, the £2,877 odd payment made on 4 April was a full discharge of the sum that Mace and Jones were then claiming.  However, on 10 May 2006 Mace and Jones wrote to Hill Dickinson to say (for the first time, it appears) that the total debt owed by the estate was £11,433.57, and that there was still a sum (including interest of £2,920.32) of £7,280.64 due from the estate.  Messrs Hill Dickinson say that they sent on that letter from Mace and Jones to Mr Knowles on 17 May 2006.  He says that he did not receive that letter until it emerged this year at the hearings before the judge.  Be that as it may, on my present understanding of the matter, I can see that there is a real prospect of Mr Knowles being able to persuade a court that his failure to discharge in full the Mace and Jones debt by 7 June 2006 was not deliberate or contumelious.  He says that he has continued to put aside money which would enable him to discharge the proper debt in full, but, understandably, he submits that he would like to have some understanding of how the earlier debt figure of some £6,800 has continued to grow to the figure now claimed by Mace and Jones in their letter of 10 May 2006.

14.	So far as his list of documents is concerned, it is true that no list of documents has been prepared by Mr Knowles as a litigant in person.  However, at quite an early stage of this litigation, he did serve upon his sister 11 files of documents, which he says contains the material to support his case of constructive trust and proprietary estoppel, and to evidence the way in which he had supported his mother and the property with his own income and payments to her.  It might be said, therefore, that disclosure on the part of Mr Knowles had gone well beyond that of a mere list of documents.  So far as further information is concerned, some further information was provided in an undated answer, supplemented by a letter of 4 July 2006, prepared on Mr Knowles’ behalf, as I understand it, by his wife.  I can understand the judge’s feeling that that information was inadequate.  Nevertheless, in the form of evidence before the court at one or other stage of this litigation, evidence either of Mr Knowles or of his wife, it may be said that the further information now goes well beyond those materials.  At any rate, I can conceive that there is a real prospect of success on appeal of Mr Knowles being able to establish that as a litigant in person, in the condition which he finds himself (albeit with the assistance of his wife), he and she have done the best they could over the years to undertake this litigation, and that the judge was wrong to say that he or they had simply been concerned in the intentional pursuit of an attempt to delay the litigation.

15.	Above and beyond all that, there is of course the question of the value of the struck out defence and counterclaim.  As to that, the court has little before it other than the bare bones of the dispute.  Nevertheless, so far as those bare bones are concerned, I can conceive that a case of constructive trust of promissory estoppel, or a claim under the 1975 Act, is reasonably arguable having regard to Mr Knowles’ condition since 1983, and the care that his mother took of him for 20 years thereafter until her death in 2003.  What to do in these circumstances?  I am concerned that the court has not got to the bottom of this litigation.  It seems to me that the right thing to do is to give Mr Knowles permission to appeal out of time against the order of 24 July 2006, both so far as it orders possession, or refuses to suspend the possession order further, and also so far as it strikes out Mr Knowles’ defence and counterclaim.  I would therefore grant an extension of time to formalise a proper appellant’s notice in respect of that order.  If my lord agrees, we can discuss in due course what condition should be put upon that permission to appeal and extension of time.  I would also grant the necessary extension of time of 17 days to appeal against the order of 11 May 2007, and grant permission to appeal from that order, so far as that is concerned with the judge’s refusal to suspend the order of possession further.  However, I emphasise that the real bone of contention is going to arise upon the order of 24 July 2006 and Mr Knowles’ ability to sustain the appeal which he wishes to make in respect of that.

16.	Mr Knowles, despite the assistance of his wife clearly labours under a particular difficulty, not only that of a normal litigant in person, but also that of someone disabled to the extent that he is.  I very much hope that with the assistance of this judgment, if my lord agrees, Mr Knowles will be able to obtain (for the purposes of the appeal for which I would give leave) the assistance of counsel, at least, who might be willing to provide his or her services pro bono.  There is a fine tradition of such pro bono work, and I very much hope that that tradition might be maintained in this case.  Therefore, in sum, for the reasons which I have given, I would extend time and grant permission to appeal, to enable Mr Knowles to appeal against both the underlying order of 24 July 2006 and the order of 11 May 2007.

Lord Justice Tuckey:	

17.	I agree.  In the course of the argument this morning, Rix LJ referred to the fact that Mr Knowles has apparently been refused legal aid.  If this appeal is to proceed, I do think that is something which perhaps Mr and Mrs Knowles should investigate again, because if they can get legal aid, so much the better.  But as my lord has said, failing that, we would very much hope that counsel at least could assist them pro bono on the appeal.  The pro bono unit in this building is probably the place to go for such assistance, because any appeal will take place here.  We also need to say that, the effect of granting permission to appeal is that execution of the possession order will be further stayed until the hearing of the appeal.  We will also direct that the notice of appeal from the 24 July 2006 order should be filed within this court, within 14 days.  It is very important that this should be done, so that this court has a record of the appeal for which we have already granted permission.

Order: Application granted