No B1/2000/3537

Neutral Citation Number: [2001] EWCA Civ 739
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL 
AND AN EXTENSION OF TIME
								Royal Courts of Justice
								Strand
								London WC2

								Thursday, 26th April 2001
B e f o r e:

LORD JUSTICE JUDGE

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DOLAN t/a Vincent & Sons
Respondent
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Dr AL-TIMIMI
Applicant

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent appeared in person

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J U D G M E N T
1.	LORD JUSTICE JUDGE: This is an application for permission to appeal a decision of His Honour Judge Krikler dated 26th September 2000 dismissing the defendant's appeal against a decision of District Judge Morris dated 7th August 2000. There are those who will think that it is quite absurd that a piece of litigation which in the end has culminated in an order in favour of one party in the sum of £80 plus £70 costs should occupy quite so much judicial time and attention when there are so many other cases waiting to be heard.
2.	The difficulty facing Dr Al Timimi in this application is - to put it in language I know he understands from our discussion - that it is a second tier appeal, so he is not entitled to appeal unless there is an important point of principle or a compelling reason for a second appeal.
3.	Stripping the case to its essentials, there is a huge dispute between the claimant and Mr Dolan, who is here, about whether or not Dr Al Timimi did in fact owe any money to Mr Dolan for work done on his central heating system. The allegations in relation to those matters went far and wide with assertions about falsified documents and the like, and that the process of the court had been interfered with. If true, those things matter greatly but they do not matter to the decision that I have to make.
4.	On the face of it, the district judge below reached a conclusion favourable to Mr Dolan and adverse to Dr Al Timimi. There are two points which have caused me to pause, and in the end I am not prepared to rule them out at this stage although some other judge may rule them out in due course.
5.	There is an allegation that Judge Krikler behaved in a racist manner. It is fair to the judge to record at the outset that the way in which that allegation has been made has rather developed in the telling. The way in which I would be prepared to approach it - although in the end some other Lord Justice will almost certainly will have to decide it - is to look at the assertion made immediately after the hearing by Dr Al Timimi in his letter of complaint to the court. Could you remind me of the page on which your first letter is found?
6.	THE APPLICANT: Page 17.
7.	LORD JUSTICE JUDGE: There the letter was written to Judge Krikler personally. The allegation was that Dr Al Timimi -
“left [the judge's] court summarised hearing today shocked and appalled by the abusive racist remark which Mr Dolan made which you seem to agree with. Mr Dolan said: `British justice allowed three appeals in this case, but where this guy comes from would not have that.' He uttered the words `where this guy comes from' with contempt. Your Honour endorsed that by saying `Here you are.' I take it as racist also judging by the racist remarks and letter that Mr Dolan has sent to me ..... “
8.	He went on:
“Your Honour seems to have decided the judgement beforehand, because you did not allow me to submit my appeal for which I have paid (100.00 pounds) in fees, and immediately told me your Honour's position.”
9.	It is right to record that Mr Dolan had a recollection of the hearing but he doubted whether three appeals would be allowed “in this chap's country” at which His Honour Judge Krikler “hardly glancing up at this statement said something inaudible to myself concluded the appeal hearing.”
10.	The other aspect of the problem is the extent to which what happened before Judge Krikler can, in truth, be described properly as a hearing of an appeal. As I explained to Dr Al Timimi, the fact that the appeal takes a short time does not help him one way or another. Judges are supposed to read the papers before they come into court. They may have a clear view of what the likely outcome will be and there is no harm whatever in a judge taking a robust approach to the litigants before him, explaining what is in his mind. The way in which I am unhappy about the application in relation to the second point is that I have listened to assertion and to some extent counter-assertion by Mr Dolan. Mr Dolan says that the case went in this way: his Honour's opening remarks stated what the case was about, the case having been learned prior to hearing opening, his Honour concluding that should he give favour to the defendant the claimant would then appeal. Should he give judgment to the claimant the defendant would then appeal. This would go on ad infinitum. Every item had been scrutinised previously and the appeal was then dismissed.
11.	I have the assertions made - and I take them from the original letter - by Dr Al Timimi. I have the claimant Mr Dolan's recollection of what happened. There is no transcript. I have no affidavit from Dr Al Timimi about these rather serious allegations about the conduct of the case. I do not think it right to proceed to make a decision in this case until I have seen an affidavit from Dr Al Timimi about precisely what happened from the moment the case was called on before Judge Krikler until the conclusion of the case. When that affidavit is supplied it will be disclosed to Judge Krikler and the clerk of the court at Willesden and we will ask the judge to comment on it. I think the affidavit should also be disclosed to Mr Dolan so that Mr Dolan can, if he wishes, produce an affidavit in response.
12.	The order I make today is that I shall adjourn this present application for permission to appeal. I shall remind Dr Al Timimi that his prospects of success are very far from conclusive. He should not read anything into the fact that I have decided to adjourn the case, in other words raise any false hope of the likely outcome. In the circumstances which I have outlined it seems to me that justice cannot be done unless there is an affidavit from him and the matter has been put before Judge Krikler for him to say whatever he wishes in observation to it. When that material is available the case will be re-listed for the application to proceed. I do not reserve it to myself. The listing in this court is difficult enough without adding artificially to the burdens. Whichever Lord Justice happens to be available on a particular day should be the judge to hear it. I will not be sitting in this jurisdiction throughout June and half of July. I hope that we can list it sooner. How long will it take you to produce an affidavit, Dr Al Timimi?
13.	THE APPLICANT: A week if that is acceptable.
14.	LORD JUSTICE JUDGE: Yes, seven days from today. Are you sure?
15.	THE APPLICANT: Yes.
16.	LORD JUSTICE JUDGE: That affidavit will be served on this court with whatever our reference number is by not later than 4 o'clock seven days from today. If it is not so served the application will stand dismissed. If it is served I will ask the Registrar of Appeals to write to Judge Krikler asking him whether he has any comments to make on the affidavit. I hope that the case can be re-listed some time either later in May or more likely in June.
Order: Application adjourned