MR JAMES EADIE and MR ADAM TOLLEY (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT

Monday 19 February 2001

1. THE LORD CHIEF JUSTICE: There are two applications for permission before us this morning. One of them is by Dr Barry Matthews. On behalf of Dr Barry Matthews Mr Ullah has appeared this morning and has sought an adjournment so as to enable proceedings to be taken for judicial review against the Legal Services Commission because of their failure to accede to an application for legal aid for Mr Matthews in respect of his application for permission.

2. We have the advantage in this case of a skeleton argument prepared for the purpose of the application for permission by Mr Pickering who was counsel for Mr Matthews at the hearing before the Divisional Court on an application by the Attorney General for an order under section 42 of the Supreme Court Act 1981. The decision of the Divisional Court was given on 14 November 2000. Permission to appeal was refused by the Divisional Court and there was then a prompt application made to this court for permission to appeal. It was only on Friday afternoon that the application for an adjournment of the hearing today was initiated.

3. The skeleton argument prepared by Mr Pickering enables us to assess whether there is any merit in the application for permission. The application for permission is a matter which the court takes the view it can properly consider on the material already before it. It has before it, in addition to the skeleton argument to which I have made reference, the judgment of the court and all the papers relied on in the court below. They provide ample material for the court to consider whether or not permission should be granted in the present application. We will deal with that in due course. If permission is granted, then that would be a matter which the Legal Services Commission would be bound to take into account if a fresh application for legal aid was made. If, on the other hand, the situation is one where we refuse permission, then that again would determine the proposed application against the Legal Services Commission for judicial review.

4. Accordingly, it seems to us, bearing in mind the lateness of the application which is made for an adjournment and bearing in mind that we are in a position to deal with of the application for permission to appeal against the decision of the Divisional Court, that the appropriate course for us to adopt is to refuse the application for an adjournment and to consider the question of permission. If we come to the conclusion that it is a case where permission should be granted, then in the circumstances we would not go on to consider the merits of the appeal for which we will have given permission.

5. There is no need for Mr Ullah, who appears pro bono, to remain. We have had all the assistance that we could from Mr Ullah. We bear in mind all the points made in his skeleton argument, but that is the conclusion to which we have come.

6. THE LORD CHIEF JUSTICE: Mr Ullah, Have you personally spoken to Dr Matthews?

7. MR ULLAH: I have not, my Lord. I have had a few words with the solicitors over the telephone on Friday. I have not spoken to Dr Matthews.

8. THE LORD CHIEF JUSTICE: Well, he should be here then.

9. MR ULLAH: I have no idea why he is not. My Lord, I am told he has heart trouble. He is sick.

10. THE LORD CHIEF JUSTICE: Thank you, Mr Ullah. We have been told informally that there may be some problem with regard to Dr Matthews' health. He has not communicated that to the court in any form. In the circumstances we propose to proceed to deal with his application for permission in his case in due course.