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LiP who said he could not hear solicitor succeeds in judicial review

Unable to hear: Litigant in person claimed unfairness

An elderly litigant in person (LiP) who said he could not hear a local authority solicitor at a hearing relating to unpaid council tax has succeeded in his judicial review of the decision.

David Pittaway QC, sitting as a deputy High Court judge, said justice had not “been seen to be done” [1] at the hearing at Ipswich Magistrates’ Court, which LiP Denis Paling compared to an episode from Franz Kafka’s The Trial.

Mr Paling, represented by a direct access barrister in a judicial review of the court’s decision to dismiss his challenge to a liability order obtained by Mid-Suffolk District Council, was described by his counsel as “a 76-year-old man with a number of medical conditions” who had “suffered from strokes and has been treated for cancer”.

Mr Paling recounted that the man he called the council’s solicitor (actually a revenues officer), a Mr Upson, “stood with his left hand in his pocket” and his back to the LiP “and spoke in a very low voice, which only the bench could hear”.

When Mr Paling “several times expressed concern that he could not hear” the submissions and so could not answer them, the chairman of the bench “took no measures” to help him.

The LiP had handed in a 10-page synopsis of his case to the court at the start of the proceedings, but said he was not allowed to make oral submissions. When he “expressed concern”, the chairman of the bench “threatened to dismiss” Mr Paling’s application.

Judge Pittaway said a witness statement from a council lawyer detailed unsuccessful attempts to obtain a witness statement from Mr Upson, who retired in March.

In its absence, the council relied on an attendance note by Mr Upson and the initial response from the court – which otherwise took no part in the proceedings – to the accusations.

The council argued that there was nothing to indicate that Mr Paling had raised the issues of not being able to hear and reasonable adjustments until April this year.

There was “no merit” in his assertion that he was prevented from addressing the court, nor was it “credible” that after a two-hour hearing Mr Paling did not “know fully” the case against him.

Judge Pittaway said Mr Paling’s synopsis showed he had “a clear understanding” of the case but the “more difficult question” was whether the hearing itself was unfair.

He noted that the council’s submissions did not “respond directly” to the central allegations.

“Standing back and reaching an independent view, I have concluded that the claim for judicial review succeeds. In my view, on the basis of the claimant’s evidence, which I accept, a fair minded and informed observer would conclude in this case that justice had not been seen to be done.”

He remitted Mr Paling’s application to a differently constituted bench.