B3/01/0903
Neutral Citation Number: [2002] EWCA Civ 51
IN THE SUPREME COURT OF JUDICATURE                            
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE
UPON TYNE COUNTY COURT
(Mr Recorder Bullock)
                                     Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Thursday, 17th January 2002
B e f o r e :

LORD JUSTICE BROOKE
LORD JUSTICE MANCE
MR. JUSTICE PARK

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DAVID WILLIAM STENNING
Respondent

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THE HOME OFFICE
Appellant
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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
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MR. I. BURNETT Q.C. and MR. P. KRAMER (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.
MR. J. RAY (instructed by Messrs Jones Goodall, Wakefield) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE BROOKE: This is an appeal by the Home Office against an order of Mr. Recorder Bullock at the Newcastle on Tyne County Court on 4th April 2001 when he held that the Home Office was liable to the claimant, who is a prisoner serving a life sentence, for an agreed sum of £12,000 damages arising out of an incident at Wakefield Prison in December 1999 when the claimant was held hostage by another prisoner for about five hours. Towards the end of that period he suffered serious stab wounds and subsequently suffered post traumatic stress disorder.
2.	The Home Office appealed and lodged a skeleton argument in support of their appeal. At that time the claimant, who had been represented by junior counsel at the trial, had been able to secure the services of leading counsel. A skeleton argument was settled by both leading and junior counsel in July 2001. The appeal was set down for hearing for half a day for today's date quite a long time ago.
3.	The Legal Services Commission decided to withdraw funding for leading counsel for the purposes of the appeal, but leading counsel made it clear that he was willing to act pro bono on the appeal for which he was booked in his diary. When he became ill before Christmas and was not going to be able to appear, junior counsel formed the view that he would be able to deal with the issues as they appeared on the face of the skeleton arguments and the notice of appeal without calling on the services of another leader.
4.	Although the case had been set down for hearing for some time, the Home Office decided towards the end of last year that they should instruct leading counsel, because the issues in the case range rather more widely in their potential effect than might be immediately evident from a decision by a recorder in the county court involving a comparatively small amount of money. Their instructions were sent to Mr Burnett on 31st December when he was away on holiday. He returned from his holiday on 7th January and was able to get on top of the papers by the end of that week. Amended grounds of appeal were sent first to leading counsel whom he expected to be against him and then on junior counsel by lunch time on 14th January, only three days ago. Junior counsel for the defendant was professionally engaged in a criminal trial at the Old Bailey, and he was only able to absorb the amended grounds of appeal for the first time on Tuesday, 15th January. It appears that the amended grounds of appeal were not sent to his solicitors until lunch time on Tuesday, only a day and a half ago. To make matters more complicated, the solicitor who had the carriage of the matter throughout on behalf of Mr. Stenning was made redundant by her employing firm last autumn, so that a new solicitor had the carriage of the matter who was not familiar with its detailed history.
5.	When Mr. Burnett saw the papers he formed the view that the grounds of appeal needed to be enlarged. The amended grounds of appeal include a number of small additions to some of the earlier paragraphs of the original grounds and then contain five quite new substantial paragraphs. In particular, complaint is now made that the Recorder had applied an inappropriate standard when finding that the Home Office had been guilty of negligence. Ground 11 of the new grounds of appeal reads:
“Those within the prison service with responsibility for managing Perkiss were exercising a skill poorly which involved making discretionary judgments. There was no evidence that they failed to act with the appropriate standard of care.” 
6.	Paragraph 13 reads:
“The findings of negligence based on the failure to move a prisoner called Perkiss away from Wakefield, the failure to place him in segregation generally after September 23rd 1996, and the failure to discipline him for his abusive and threatening behaviour are not pleaded against the defendant.” 
7.	The relevance of these challenges are that the Recorder in his judgment does not seem to have addressed the issues of law in any great depth. Indeed, he finished his judgment, after finding various representatives of the Home Office guilty of negligence, by saying that errors of judgment were made but nothing more.
8.	The final grounds of appeal were based on Mr. Burnett's complaint that the substantive findings which were made against the Home Office were not pleaded, that the pleaded grounds, except in one particular, were dismissed by the Recorder, and that in that one particular the Recorder appears to have preferred the hearsay evidence of the prisoner who was responsible for the hostage taking, who was not called to give evidence at the trial, in preference to the evidence of a prison officer who did give evidence at the trial, without making it clear on what basis he rejected the evidence given by that prison officer.
9.	In particular, complaint is made by Mr. Burnett that the substance of the Recorder's judgment is a finding of negligence against a representative of the appropriate department of the Home Office who was responsible for taking a decision about the location of the man called Perkiss, who is a category A life prisoner, when there was no allegation at all on the pleadings against the Home Office in this respect. Accordingly, none of the papers which dealt with the decisions being made at Home Office headquarters were disclosed during the pre-trial process, and the man who took the decisions which were criticised by the judge did not come and give evidence because no complaint was made against him on the pleadings.
10.	We are told that complaint was made by Mr. Kramer who appeared for the Home Office at the trial that the claimant's case was going a long way beyond the pleaded case. The Recorder is said to have brushed aside those complaints without calling on Mr. Ray to answer them. Mr. Ray accepts that the points which the Home Office now seek to raise are points on which he understands why they want to raise them. He does not feel that he could object to them if he was equipped to deal with them and if the situation, which is entirely of the Home Office's making, had not arisen, whereby he only had notice of these extended grounds of appeal less than two days before the hearing, when leading counsel was not available to him in the circumstances which I have described.
11.	The court is always most reluctant to adjourn cases. We have a heavy list. We have litigants who are wanting to have their cases heard. The whole of the procedure of the Court of Appeal as set out in the Practice Direction presupposes that the parties prepare their appeals in good time and do not delay decisions about the level of counsel to instruct until shortly before the hearing. Decisions of that kind are always likely to lead to the kind of problem with which we are confronted in this case, when leading counsel wishes to extend the scope of argument. It may or may not be just to allow him to do so. I very much hope that those who have the carriage of matters of this kind in the Home Office appreciate the problems that it poses for the courts in the administration of their business if late decisions of this kind are made. We were told that the Home Office is anxious about the expenditure of public funds on this comparatively small piece of litigation, but when they instruct leading counsel for the first time at the last minute, unhappily this may lead to the kind of situation which we have here.
12.	We are all satisfied that justice demands that the Home Office should be entitled to make these amendments. The case raises important issues as to the standards of care which should be applied when decisions are made about the location or the release of prisoners. Risk assessments are made. The risks are balanced against the benefits. It is entirely understandable why the Home Office should wish an issue of this kind to be properly and fully argued in this court and that the points that Mr. Burnett seeks to raise should be properly ventilated. On the other hand, it seems to me that it would be the reverse of justice to require Mr. Ray, acting on behalf of a prisoner serving a life sentence, to have to cope with these amendments at such short notice. If Mr. Ray was a practitioner who normally practised in this field, then one would hope that he would be able to accelerate in order to deal with it. He tells us that his practice is at the criminal bar and that it was only in the unhappy circumstances that we have described that he is without the leader who had been willing to act for his client pro bono, who would certainly have been able to deal with these arguments at two days' notice.
13.	In these circumstances, with the greatest reluctance we adjourn the case on condition that the Home Office pay the costs which have been thrown away by the adjournment, including the costs of today. The importance of the issue from the public point of view can be seen by the fact that, although there is only this comparatively small amount of money at stake, the Home Office wish to instruct experienced leading counsel and would prefer to have to pay the costs of the adjournment rather than to fight the case on the grounds of appeal as they originally stood.
14.	I hope very much that it may be possible for the claimant to get representation of a similar standing at an adjourned hearing. I hope that my remarks may be drawn to the attention of the Legal Services Commission in relation to the importance of the points of law, not merely to Mr. Stenning but to all prisoners of his type, or indeed all prisoners who may find themselves injured as a result of risk assessments that prove unhappily to have been misjudged. If the Legal Services Commission are unable to assist, I very much hope that the claimant's solicitors may be able to persuade the Bar's pro bono unit and the Citizens Advice Bureau in this building to assist with the assistance of leading counsel if it is possible to do so in the circumstances.
15.	Ideally, we would adjourn the case and reserve it to ourselves, but we will be sitting in this constitution for only another two weeks. In those circumstances we adjourn it, expressing the wish that it should not be delayed for too long. It should take one day. It should be returned to a constitution of the court in which I am presiding. Ideally, Mance LJ should be with me in the court if that can be arranged. It may be that the listing authority cannot arrange it.
16.	LORD JUSTICE MANCE: I agree.
17.	MR. JUSTICE PARK: I agree.
Order: Adjourned as per judgment.