Case No: B5/2007/2151
B5/2007/1286

Neutral Citation Number: [2008] EWCA Civ 788
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
(HIS HONOUR JUDGE HODGE QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 13th June 2008

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
and
LORD JUSTICE MAURICE KAY
- - - - - - - - - - - - - - - - - - - - -

	KNOWLES
	Respondent	
	- and -		
	
KNOWLES	
  Appellant	

- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr A Smith (instructed by the Bar Pro Bono Unit) appeared on behalf of the Appellant.

Ms E Campbell (instructed by Hill Dickinson LLP) appeared on behalf of the Respondent.

- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Mummery:  

1.	These appeals are from two orders made by HHJ Hodge QC in the Crown Court in Manchester.  The first order was made by him on 24 July 2006.  It was made in the absence of the appellant, Mr Anthony Knowles.  The judge struck out his defence and counterclaim, made an order for possession of the property that was the subject of the litigation, and ordered him to pay the costs.  It is submitted on this appeal that that order should be set aside.  The second order made by HHJ Hodge was on 11 May 2007 and that order dismissed an application by Mr Knowles to set aside the order of 24 July 2006.  It is submitted that this order should be set aside and that the court should set aside the order for possession.

2.	The application for permission to appeal was first dealt with by Rix LJ on paper.  He also had an application to extend the time for appealing.  On 4 July 2007 he adjourned the permission to appeal application and the extension of time application to an oral hearing and granted a stay on eviction from the property, pending the adjourned hearing and the disposal of the applications.  The adjourned hearing took place on 4 September 2007 before Rix and Tuckey LJJ and they granted the applications.  

3.	There is also before us today an application for permission to adduce further evidence on the appeal.  This includes records from the North Cheshire Hospitals, a letter from the Veterans Agency medical examination, and a report from Weaverham surgery.  This evidence relates to periods of alleged temporary incapacity of Mr Knowles and is relied on for the principal submission made on his behalf: that the judge, in making these orders, did not pay any or any proper consideration to the mental condition of Mr Knowles at the time when he made the orders.

4.	I should say at the outset that the court is very grateful for the assistance that it has received from Mr Adam Smith, who, on the instructions of the Bar Pro Bono Unit, has presented the appeal and made the application for further evidence on Mr Knowles’ behalf.  Up to now in this litigation Mr Knowles has been unrepresented, though he has received considerable assistance throughout from his wife, acting as a McKenzie Friend.  She is not, as Mr Smith pointed out, legally qualified but it is clear from those documents that have been produced, letters, statements of truth and skeleton arguments, that she has been able to give him valuable assistance.

5.	The respondent, who is Mr Knowles’ sister, is represented by Ms Emily Campbell, and she has helpfully indicated her agreement to a chronology prepared by Mr Smith of the history of this dispute and the litigation, and she has put in a supplemental skeleton argument responding to the various points which have been made by Mr Smith in his detailed skeleton.  

6.	At the hearing this morning, Mr Smith has taken us through the main points which he is making on behalf of Mr Knowles.  He has referred us to a number of documents in the bundles; he has taken us to the fresh evidence which he wishes to adduce; and he has referred us to a number of legal authorities.  At the end of his submissions, and after he had had an opportunity to consult with Mr Knowles about any further points he might wish to have raised with the court, we indicated to Ms Campbell that we did not need to hear oral argument from her.

7.	This is a very unfortunate dispute in a number of ways.  First, the parties are brother and sister.  They are in dispute about a property that belonged to their mother: Juniper Hill, 2 Valley Lane, Cuddington, Northwich, in Cheshire (“the property”).  The respondent sister has started these proceedings against Mr Knowles in her capacity as sole executrix of their mother’s estate under a will made on 19 July 1984.  The respondent is also sole beneficiary under that will.  Their mother died on 12 July 2003 and probate was granted on 17 May 2005.  There was a proceeding about the will, Mr Knowles contending that there was an intestacy.  In those proceedings he was legally represented.  They were unsuccessful.

8.	The position now is that the respondent wishes to sell the property.  There are debts which have to be paid.  The net value of the estate was about ₤184,000.  It is now estimated that the costs which have been incurred by the respondent in the various proceedings, including the probate proceedings, are over ₤115,000.  The proceedings which have been brought are for possession, because Mr Knowles lives in the property.

9.	Mr Knowles is severely mentally disabled.  Some of the evidence indicates the extent of the disablement; as much as 80% mental impairment.  This unfortunate disability is the result of severe head injuries which he suffered in a car crash while he was serving as a captain in the army.  He is now about 50 years old, and for many years lived with their mother in the property.  He contested the proceedings for possession, contending in his defence and counterclaim that their mother had promised to leave the property to him, and this was in return for substantial financial support that he had provided for her over the period when they were living together in the property.  In legal terms, he is claiming that the property is subject to a constructive trust, or the doctrine of proprietary estoppel operating in his favour.  I also understand that he made an application under the Inheritance (Provision for Family and Dependants) Act 1975. 

10.	It is in these proceedings that, for lack of funds, he has acted in-person with, as I have explained, his wife’s assistance as a McKenzie Friend.  The possession proceedings were begun on 14 June 2005.  The defence and counterclaim was served on 16 November 2005, setting out the basis for what was potentially 100 per cent interest in the property.  Following a number of adjournments, an order was made on 7 April 2006 by HHJ Hodge sitting as a judge of the High Court.  It was a consent order.  It recited that the judge had heard counsel for Mrs Wanda Knowles and the defendant, Mr Knowles, in person.  The order provided that Mr Knowles would deliver possession of the property to his sister on 7 June 2006, provided that the order would be suspended if he before that date provided her with evidence in writing from Mace and Jones that the judgment debt, costs and interest to Mace and Jones in respect of a particular piece of litigation, which was identified, from the estate of their mother had been discharged in their entirety.  It was also ordered by consent that Mr Knowles would respond in full to a request for further information dated 14 March 2006, and that he would do so on 20 April 2006.  It was ordered that the parties filed and served lists of documents before 4.00 pm on 28 April 2006.  Provision was made for a whole lot of other matters in preparation for the hearing of the case: inspection of documents, exchange of witness statements, orders for attendance for cross-examination, for the appointment for a single joint expert, and ancillary directions about the expert’s report, and the preparation of a trial bundle.

11.	What happened afterwards was the result of an alleged failure on the part of Mr Knowles to comply with the orders to which he had consented.  An unless order was made in relation to certain parts of the consent order, but that was not complied with.  There was a further hearing, and yet another one.  The one that matters for the purposes of this appeal is the hearing that occurred on 24 July 2006, which resulted in the order which is the subject of the first appeal.  The judge came into court in Manchester and informed the representative of the claimant, Mrs Wanda Knowles, that a telephone call had been received from Mr Knowles’ wife saying that her husband was seriously ill and unable to attend, and that she was unable to attend either.  She apologised that she was unable to attend the hearing, and had been unable to attend another hearing on 13 July.  

12.	The judge said he had asked the clerk whether she had asked for an adjournment, and he said that she had not mentioned anything to that effect.  The judge said that he was not prepared to deal with the matter on paper because it seemed to him the defendant ought to have an opportunity to be here before he made an order of the nature that he was seeking.  He said:  

“…the defendant has not availed himself of that opportunity and it seems quite clear from the telephone call that Mrs Knowles, and therefore one must assume, Mr Knowles, is aware of today’s hearing and neither has saw fit to attend or put any material before the court.

In those circumstances, reluctant though I am to make an order shutting someone out from trial, I can really see no alternative.  The fact is that Mr. and Mrs. Knowles were present when the original order was made back on 7th April and that was, I think, a consent order, was it not?”

And that was confirmed by the representative of the claimant, Mrs Knowles.  The judge said:  

“They were not present when I made my order of 23rd June [that is the unless order], but I had satisfied myself on that occasion that they knew of the hearing.  They have not complied with that order, in that, they’ve not responded in full to your request for further information.  And further, they’ve not filed or served a list of documents that they were required to serve.”

The judge continued:  

“This matter is listed for trial beginning on 1st August, continuing over three days.  The claimant herself is resident in the United States and therefore needs to achieve a measure of certainty in relation to that trial date.  

There is no application before me for relief from the sanction imposed by either paragraph 4 or paragraph 5 of my order.”
  
13.	The judge then asked whether the claimant had heard from Mr and Mrs Knowles, and her representative said: 

“The only thing we have received, if I can perhaps pass this up to you, my Lord, it’s a letter from Mr. Knowles signed on his behalf by Mrs Knowles, dated 16th July with… three enclosures to that, each dated 4th July.”

And then some submissions were made to the judge.  The judge said: 

“So we’d better look at the request for further information insofar as it is still outstanding.”

And he took up the original request, and then referred to the matters that were outstanding on the original request, and he was taken through the numbered points, and it was submitted to the judge that it did not seem that the first request had been addressed.  The judge asked:  

“JUDGE HODGE: Had there been any compliance with this prior to my order in April?

SPEAKER 1: Had there been any, sorry?

JUDGE HODGE: Any compliance?”

And the representative said there had been partial compliance on the day of 7 April.  The judge then said:  

“The order was to respond in full to the request for further information.  Yes, well, looking through the letter of 4th July and comparing it to the request for further information, it doesn’t seem to me that this even begins to answer...”

And the representative said:
“Exactly my Lord.”
14.	 What I pause to say there is that it does appear from material that has been pointed out to us by Mr Smith that it may have been an overstatement by the judge to say that what had been supplied did not even begin to answer the request.  He showed us documents to show that some information was provided.  

15.	The judge then went on to say that he was satisfied that Mr Knowles was on notice of the hearing, and he was satisfied that there had been non-compliance with the extended deadline that was set out in his order of 23 June.  And he said: 

“…in those circumstances and particularly given that this matter is listed for trial over three days beginning on 1st to 3rd August and there is no application for relief from sanctions before me, it seems that I have no real alternative other than to make an order in the terms that you seek.”

That was an order striking out the defence and counterclaim on the basis of non-compliance with provisions in the consent order of 7 April.  The judge recited the draft order that had been put before him; he was, as I have said, satisfied that he should make that order, and he asked the representative of the claimant to send Mr Knowles a draft of the order and to lodge a final version of it.  He added that Mr Knowles would have the right to apply to have that order set aside, and he indicated that the draft order should include a final paragraph saying that any further application in the matter should be listed before himself, if available.  Given that he had been dealing with the matter for some time, he thought that he was the person to whom it was appropriate to make an application.

16.	That was the state of affairs on 24 July 2006.  We now go forward to March 2007, when the claimant applied for a writ of possession.  On 2 April 2007 Mr Knowles filed an application which has been treated as an application to set aside the order of 24 July 2006.  The judge dealt with that on 11 May 2007.  The judge on that occasion gave an extended judgment setting out the reasons why he was satisfied that the order of 24 July 2006 should remain.  He said that there was no satisfactory ground for setting it side.  He started by saying that the matter had a long history, and he set out the circumstances that I have already summarised about the origins of the dispute between the parties.  He then set out the history of the proceedings, referring to the consent order that was made on 7 April 2006.  He referred also to the order that he had made on 23 June 2006 at a hearing that was not attended by Mr Knowles.  That was the occasion on which he extended the time for responding to the request for further information to 7 July, and provided that in default the defence and counterclaim be struck out; that is what is commonly called an unless order.  It was also a provision of that order that there should be an extension of time for filing and serving a list of documents; and, again, in default the defence and counterclaim was to be struck out.  

17.	The judge then said that Mr Knowles had not complied with the terms of the order, and therefore the application was made by the claimant sister for possession and for the striking out of the defence and counterclaim for non-compliance.  He referred to the events which led up to the hearing on 24 July 2006.  He referred to the non-attendance, to the telephone conversation about Mr Knowles being unwell and unable to attend, and he said, as he said at the time, that his wife had not asked for an adjournment.  He was satisfied that there was non-compliance with paragraph 1 of the order of 7 April, and with paragraphs 4 and 5 of the unless order of 23 June.  He said: 

“In those circumstances I ordered the Defendant deliver possession of Juniper Hill [and that] the Defence and Counterclaim be struck out...”

He said this: 

“I anticipated that there might be a speedy application by the Defendant to reinstate the Defence.  This did not happen.  I am satisfied that an unsealed copy of the Order was sent to the Defendant on 25 July 2006.  On 18 April 2007 the Defendant accepted that an unsealed Order had been received by 1 August 2006.  Had it not I would have expected the Defendant to attend at Trial.  A sealed copy was sent to the Defendant on 9 October 2006.”

He then went forward, as I have already indicated, to the end of March when the claimant sister applied for the writ of possession, and that had been indicated to the other party.  He said: 

“I had the application notice and evidence contained in part C and further witness statements of Mr Bogle for the Claimant dated 10 April 2007 and from the Defendant dated 16 April 2007…”

He then said this: 

“I should say that Mr Knowles is in constant pain, disabled and unable to attend a hearing in Court though he was present in January and April 2006.”

18.	The judge then referred to a telephone hearing that had taken place.  He said he was concerned to give the defendant an opportunity to place full medical evidence regarding his physical and mental condition before the court, and adjourned the application to 11 May 2007 for further evidence.  The defendant was to file and serve evidence he relied on by 4.00 pm on 2 May, and the claimant further evidence in response by 4.00 pm on 9 May.  He said this: 

“I am told the Defendant filed and served a witness statement dated 2 May 2007 but there is no copy on the Court file and I only knew of this when I received the 8 May 2007 witness statement of Mr Bogle.  I did receive the 4 May 2007 written medical report from the Defendant’s GP, Mr Halpin.  I acceded to the request for an extension of time to 4 May 2007 for the medical report.  

Today I also have before me the Defendant’s 2 May 2007 witness statement, the medical report of Dr Halpin dated 4 May 2007 and Mr Bogle’s 8 May witness statement.  

When the telephone hearing began at 9.00 a.m. I indicated that I had not received the Defendant’s latest witness statement and adjourned the hearing for this to be sent.  I have received this by e-mail and fax.  The exhibits accompanied the faxed copy.  

I have heard today and on 18 April 2007 Mr Bogle for the Claimant and both the Defendant and Mrs Knowles.”

He added:
“I found the defendant to be fluent, lucid and articulate.”
He said:  
“I have considered all the evidence.  I wanted to be satisfied whether there were aspects in which the non-compliance was fully justified.  

The Defendant sought to explain the failure to comply with paragraph 1 of the 7 April 2006 order saying that incorrect information had been provided.  Mr. Bogle exhibits the letter from Mace and Jones dated 10 May 2006 to himself and copied to the Defendant and he exhibited the letter to the Defendant dated 17 May 2006 which accompanied this.  The Defendant says these were never received.  Even if I did accept this it is clear that on 10 May 2006 had the Defendant or Mrs Knowles approached them they would have been given full details.  Paragraph 1 of the 4 April 2006 Order is clear.  It provides for possession by consent suspended on terms that the Defendant put before the Claimant evidence that the Mace and Jones debt had been discharged in its entirety.  The responsibility was on the Defendant to provide that written information not on the Claimant.  

It is quite clear that had the Defendant approached Mace and Jones [sic] who would have known how much was outstanding.  More than ₤7,000 is still outstanding.  The Defendant did nothing to discharge the debt or ascertain how much was owing.  He is in breach of paragraph 1 of the 7 April 2006 Order.”

He added:  

“I am satisfied also that no List of Documents as required by paragraph 3 of the 7 April 2006 Order, was provided.  Time was extended but there was no compliance.  The Defendant says that he provided documents, a lever arch file.  That may be so but he agreed on 7 of April 2006 to file a List of Documents.  Time was extended but there was no compliance.  

There has been non-compliance with the further information requested.  Some information was provided in a two page document Mrs Knowles signed for the Defendant dated 3 April 2006 exhibit N of the Defendant’s witness statement.  However, information in that document was said to be under advisement.  Despite the 4 July 2006 letter that information was not provided.  I am satisfied that there is further information in the possession of the Defendant.  During the course of this hearing when considering paragraph 3 and in detail paragraph 4, Mrs Knowles stated there were a number of matters which should have been provided and were not.  

I am asked to consider whether there should be a stay or rather suspension.  I should consider the check list at CPR 3.9 in respect of the granting of relief.  These matters are addressed at paragraph 8 of Mr Bogle’s latest witness statement.”

19.	Then he goes through the checklist: the administration of justice; the overriding objective to be applied justly.  He accepted the submission that it cannot be in the interests of justice that the claimant incurs ever-increasing costs and delay as a result of the default on the part of the defendant: 

“As long ago as 18 October 2006 Mrs Knowles for the Defendant said she was applying to extend time to appeal my Order of 24 July 2006.  There is still no application or appeal.  I am satisfied that it is only as a result of the request for possession that this application has been initiated.  I am satisfied that the Defendant has done nothing until forced to.  It is not in the interest of the administration of justice notwithstanding the Defendant’s health for him to behave in this way.  

Applications should be made promptly.  There has been inordinate delay.  There has been no satisfactory reason.  The application was adjourned for medical evidence.  Mrs Knowles has indicated that the doctor’s report is fairly comprehensive though it does not indicate the Defendant’s lack of life, his constant pain, his downward spiral, that Dr White found his condition shocking.  Looking at the medical evidence it does not justify that.  Mr Bogel makes specific criticisms of paragraph 7 of his witness statement.”

There is an error that he points out.  He then repeated what he had said earlier: 

“I found the Defendant fluent, lucid and articulate.”

He thought the points that were made on behalf of the claimant were well-founded; he was satisfied that there was no sufficient medical reason which justified the substantial delay appealing the order of 24 July 2006: 

“Is there a good explanation for the delay?  There is not.  Is the delay intentional?”

He said: 

“There is no reason for it other than it is intentional.  Mrs Knowles confirmed that the present application is in reply to the issue of the Writ of Possession. 

 There is no good reason for the failure to provide further information, List of Documents with disclosure statement or failure to approach Mace and Jones.  I am not satisfied by the excuses.  

The Defendant has failed to comply with other rules and orders.  I accept [the claimant’s] submission that the Court had allowed the Defendant latitude not afforded to a represented party.  [He] consistently failed to comply with Court Orders of 27 April and 23 June 2006.”

He said that this caused great case management problems for the court, and delay and costs to the claimant.  He was acting in-person.  The responsibility was his, the defendant’s.  He referred to the fact that the 24 July order had vacated the trial.  He said: 

“If I granted relief the Trial would be put back at least one year.  The effect would be that the Claimant incurred additional cost.  I am not satisfied those costs would be adequately met by the Defendant.  The Defendant requested a transcript of the [hearing of 24 July] because of lack of financial means.  

The effect of this is prejudicial on the Claimant, delaying completion of the administration of the Estate which is dragging on for years because the Estate assets have not been realised.”

He said there was no real prospect of an extension of time for the appeal, there was no reasonable prospect of the order of 24 July being set aside.  The order for possession was justified; the outside creditor, Mace Jones, was owed more than ₤7,000.  There was no evidence of any other asset in the estate to satisfy it and another small creditor.  There were also the costs and liabilities to be paid in respect of the probate claim and these proceedings.  He concluded that it was not an appropriate case to stay or suspend the order for possession, and he dismissed the application.  He refused permission to appeal.  

20.	Now it is against that background that we have heard detailed submissions from Mr Smith on behalf of the defendant, Mr Knowles.  He has done this at great length in his skeleton argument and, as I said, during the course of the hearing this morning he has had an opportunity to highlight the points he is making in reference to particular documents and to authority.  The main point he makes in this, by reference to what the judge said in his judgments and by reference to the further evidence, which for my part I would give permission to adduce to make sure that everything that could be said on behalf of the defendant has been said.  The main point that he makes really is one point, though he has broken it down into two.  He makes the point first that the defendant, Mr Knowles, is mentally disabled in the circumstances that I have described, and that he has been unrepresented in relation to the matters in which he is appealing.  He was not represented; he was not present at the hearing of 24 July, and he has not been legally represented in relation to the important question of compliance with the terms of the order of 7 April 2006. 

21.	I think these two points really do come down to one because, as Ms Campbell pointed out in her skeleton argument, the fact that someone is acting in person and does not have the benefit of legally qualified representation cannot, in itself, be a ground for setting aside an order.  Obviously, someone who is not represented is at a disadvantage compared to someone who is.  But the courts, as appears from what the judge himself said, are acutely aware of the problems that an unrepresented person has, particularly when they are against someone who is represented, and that is taken into account by the court in deciding what is an appropriate way of dealing with a case to which an unrepresented person is a party. 

22.	I think Mr Smith’s point is that when the lack of representation is coupled in this case with the unfortunate mental disability from which the defendant suffers, then that is something that, he says, ought to be taken into account by the court in deciding what order it is appropriate to make.  What Mr Smith did was to take us to the summaries in his skeleton argument of the evidence that there is about the mental disability suffered by Mr Knowles.  He referred in some cases to the actual documents, and these are matters of the fresh evidence which he has introduced into the appeal.  He referred to a letter written by Dr Lascelles back in 1987.  Of more importance was the reasoned decision of the Medical Appeals Tribunal of 26 September 1990 following an appeal by Mr Knowles in an oral hearing.  The Tribunal found: 

“…it became evident that he had suffered 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.  We assess his disablement in this respect at 80%.”

23.	Mr Smith referred to a report of Dr Ellis dated 19 March 1991, following an application for a War Pensions Constant Attendance, and he quoted from the report, which said this: 

“His mother says that he needs constant attendance because his memory is so bad and fluctuates from hour to hour.  He could hurt himself and is unaware of where he is often.  The biggest problem is his mental state.  He is unreliable.  Aggressive and bad tempered.  He gets pain in the eye and headaches and a lot of nausea and vomiting.”

It stated that he is permanently unemployable.

24.	We were referred to another report of 7 February 1992 of a Veterans Agency doctor, stating that all the evidence that had been reviewed led them to conclude that he was brain-damaged, and they said: 

“We can only conclude that this brain damage resulted from the accepted condition fractal left orbit.  Because of this brain damage, we have to accept that Mr Knowles may well have been prevented by mental incapacity from claiming earlier than 1987.”

A disability assessment of 90% was arrived at.

25.	We were referred to a letter from a consultant anaesthetist in May 2005 stating that Mr Knowles was reviewed at a chronic pain relief clinic that day, and suffers from chronic headaches, and reference was made to his medication for this.  Reference was made to a report of an examination in respect of a disablement pension and a description of his current state in a psychiatrist’s report, saying as follows: 

“Described persistent low mood with mood swings and increased irritability.  Because ‘he could be very difficult’, partner and 7 year old daughter no longer live with him, but partner comes across from Warrington and spends 6-8 hours daily with him.  Sometimes she has to stay overnight.  Also described persistent fatigue and lack of energy.  Has to sleep 16-18 hours per day.  Sleep often disturbed at night and sleeps and rests during day.  Concentration and memory impaired.  Requires prompting re: medication, washing and eating.  [In relation to cognition] some impairment of short-term memory and concentration.”
  
26.	This evidence does show, as Mr Smith points out, that there is serious disability.  It does not, however, anywhere indicate -- and nor has there been any other medical evidence adduced at any time to indicate -- that, by reason of his mental disability, Mr Knowles was unable to comply with the provisions in the consent order that had led to the order of 24 July 2006.  This crucial point has never been addressed; though, for the reasons I have already explained, there were opportunities for this to be addressed. 
 
27.	This seems to me to be fatal to Mr Smith’s argument that in this case there are grounds for setting aside the order that the judge made on 24 July.  It is clear from the passages which I have quoted from the judgment that the judge did address this question.  The way it was put by Mr Smith is that his exercise of his discretion on 24 July 2006 was vitiated because he had not addressed or taken account of the mental disability factor.  It was also said that it was the duty of the judge, of his own motion, to take note of this point.  He went as far as to say that it was the duty of the respondent sister’s advisors to draw these matters to the attention of the court.

28.	It seems to me, from the judgment that the judge gave on 24 July 2006, and it is confirmed by his reconsideration of the matter on 11 May 2007, that the judge was fully alive to the problems which Mr Knowles had.  He did not have all this evidence, but he did have an opportunity to see Mr Knowles himself on 11 May, and he said more than once that he was satisfied of really the ability of Mr Knowles to handle the situation in the litigation in his appearance before the court.  

29.	The crucial point, as I have mentioned, is that there was not any evidence indicating that there was a mental disability which prevented him from consenting to the order of 7 April, or from complying with the terms which were consented to in that order.

30.	In those circumstances, I do not think that there are any grounds on which this court could upset the way in which the judge has exercised his discretion.  It is well-established that this court will only interfere with the exercise of a discretion by a judge at first instance if it was either one that erred in principle or one that was, for some other reason, plainly wrong, such as by leaving relevant material out of account, or taking irrelevant material into account.  It seems to me that this judge exercised his discretion properly in respect of both of his decisions, and it is not vitiated for the reasons put forward by Mr Smith.

31.	I should mention two other matters, which Mr Smith made by way of preliminary observations at the beginning of this appeal.  He first of all said, in response to a point which was taken by Ms Campbell in the skeleton argument that she had put in, that Mr and Mrs Knowles were not aware of the provisions of CPR Part 21 relating to protected persons.  That is a response to a point that she has made.  It is a point on which I do not find it necessary to enter into, because I think that it is not really helpful in respect of whether this judge erred in the exercise of his discretion.

32.	The second point he made was that, disagreeing with Ms Campbell, who submitted that this hearing should be by way of a review of the decision of 24 July 2006, he said that it should be by way of a rehearing.  We have in fact looked at the material that was before the judge on 24 July 2006; we have seen the fresh evidence -- which I would admit -- the material that was relevant to the principal, or perhaps even the only, point made by Mr Smith relating to the mental condition of Mr Knowles.  

33.	It seems to me that, even taking account of this additional material, it is insufficient to demonstrate that the judge’s exercise of his discretion on 24 July 2006 was flawed.  It seems to me that there were adequate reasons, existing at that date and reflected in the judge’s reasoning, to justify the extreme step of striking out a defence and counterclaim for non-compliance.  The order of 7 April was a consent order; its terms are absolutely clear.  That was followed by an “unless order”, the terms of which were absolutely clear.  None of these were complied with.  What, I would ask rhetorically, can a court do in such circumstances, but to take the extreme step that it was asked to take by the claimant in order to bring some finality to these long, drawn-out proceedings?  

34.	I therefore conclude that the judge exercised his discretion lawfully on 24 July 2006, and he was right in his judgment on 11 May 2007, refusing to suspend the possession order or to grant any relief from the order that he had made the previous year.

35.	For all those reasons I would dismiss this appeal, expressing finally the gratitude which I think the court and Mr Knowles owe to Mr Smith for his valiant efforts, in writing and orally, to say all that could be said on Mr Knowles’ behalf.
  
Lord Justice Dyson:

36.	I agree.  I would merely add this: for my part, I would prefer to approach this appeal on the footing that we are conducting a review of the two decisions under appeal, but, having regard to, and taking into account, the fresh evidence to which my Lord, Mummery LJ, has referred.  

37.	CPR 52.11(1) provides that every appeal will be limited to a review of the decision of the lower court, unless:

“(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing.”

I understand a rehearing to be a complete de novo rehearing.  It seems to me that the interests of justice in the present case do not require this court to conduct a completely fresh rehearing of the matter.  The interests of justice are sufficiently met if we review the two decisions of the judge, but taking into account the fresh evidence.  

38.	Adopting that approach, I reach the same conclusion as my Lord, Lord Justice Mummery.

Lord Justice Maurice Kay:

39.	I agree with both judgments and add only this: the judge considered that the delays caused by Mr Knowles’ omissions were intentional and self-interested.  He was entitled to come to that conclusion, which is not undermined by any of the material we now have.  In the course of the proceedings, the judge accorded Mr Knowles the latitude that was appropriate to his disadvantages as a litigant in person with serious health problems.  However, a point comes where the degree of latitude accorded to such a litigant begins to operate unfairly, prejudicially, and over-expensively on the opposing party.  That point was clearly reached in this case.

Order:  Appeal dismissed.