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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Watson v Sadiq & Anor [2013] EWCA Civ 822 (16 July 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/822.html Cite as: [2013] EWCA Civ 822 |
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ON APPEAL FROM LUTON COUNTY COURT
Mr Recorder Bueno QC
0WD00322
Strand, London, WC2A 2LL |
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B e f o r e :
Lord Justice Jackson
and
Lord Justice McCombe
____________________
JULIAN WATSON |
Claimant/ Appellant |
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- and - |
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TARIQ MAHMOOD SADIQ KHALID MAHMOOD SADIQ |
Defendants/ Respondents |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Nicholas Isaac for the Respondents
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
"Upon hearing the Claimant and Defendant's [sic] in person and Counsel for the Defendants
Upon trial of this action on 26th, 27th, 28th and 29th March 2012.
And Upon the parties having agreed the terms set out in the attached schedule.
IT IS ORDERED BY CONSENT THAT
1. All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect.
2. Liberty to apply as carrying such terms into effect.
3. Liberty to the Claimant to apply to determine any issue about his possessions at 67 Redwood Drive, Hemel Hempstead, Herts. HP3 9ER
4. The restrictions dated 30th July 2009 in the proprietorship Register of Title Number HD147984 applied for by the Claimant for 25 Goldcroft, Hemel Hempstead, Hertfordshire HP3 8ET be removed.
5. The restriction dated 5th August 2009 in the Proprietorship Register of Title Number HD283086 applied for by the Claimant for 67 Redwood Drive, Hemel Hempstead, Hertfordshire HP3 9ER be removed.
AND THE COURT HAVING HEARD ARGUMENT FROM THE PARTIES FURTHER ORDERED THAT:-
6. The Defendants do pay the Claimant interest assessed in the sum of £6,889.60 by 26th April 2012.
7. The Defendants do pay 60% of the Claimant's costs, to be subject to a detailed assessment unless agreed."
The schedule referred to read as follows:
"In full and final settlement of all claims that the parties have against each other whether brought in claim no 0WD000322 in the Watford County Court and transferred to the Luton County Court ("the Action") or at all.
1. The Claimant agrees that all his equitable interest in 67 Redwood Drive, Hemel Hempstead, Hertfordshire HP3 9ER ("Redwood") has been assigned to the First Defendant, the registered proprietor of Title Number HD283086 as from 30th September 2009.
2. The Claimant agrees that all his equitable interest in 25 Goldcroft, Hemel Hempstead, Hertfordshire HP3 8ET ("Goldcroft") has been assigned to the Second Defendant, the registered proprietor of Title Number HD147984 as from 30th September 2009.
3. The Claimant and the Second Defendant have settled the purchase account as between themselves for the purchase of Goldcroft attached hereto and marked "A".
4. The Claimant and the First Defendant have settled the rent accounts to 30th September 2009 for Redwood attached hereto and marked as "B".
5. The Claimant and the Second Defendant have settled the rent accounts to 30th September 2009 for Goldcroft attached hereto and marked as "C".
6. The First Defendant will arrange to deliver to the Claimant at an agreed date and time all of the Claimant's possessions set out in the attached schedule marked "D" that remain at Redwood to the Claimant's son outside Redwood.
7. The First Defendant will pay the Claimant the sum of £67,175.50 as to £10,000 by 5th April 2012 and the balance by 26th April 2012.
8. The parties agree that they will keep these terms of settlement confidential and will not disclose the same to any third party without the consent of the other parties unless ordered so to do by any judicial authority or under compulsion of the law."
The schedule is signed by Mr Watson and by counsel then appearing for the Respondents.
"….without Mr Watson's true consent by reason of duress or undue influence, specifically by the improper pressure placed on the Appellant to settle by the learned Recorder. The fact that the duress or undue influence was at the hands of a third party (the learned Recorder) is immaterial here, as it was clearly within the knowledge of the Respondents, who were present throughout the hearing both personally and by counsel" (Skeleton Argument dated 31.5.13 of counsel for Mr Watson, paragraph 52)".
(B) The course of the proceedings
"92. …..looking at the nature of the disputes that you know, friends and former business partners, who have fallen out in this way is very regrettable and if the parties are able to reconcile their differences, then it would make, I think….it would be of enormous assistance, I think for the parties themselves, because you know a prolonged trial which is scheduled for four days and goodness knows how long before I can get a judgment out, it's just going to linger on and on and on. So I mean, you will all hear and take the advantage of the fact that I'm going to be adjourning for a couple of hours to read this stuff and see whether or not some sort of a settlement can be arrived at. If not then we'll proceed to try the case, okay."
"267. Recorder Bueno QC: Well let's not worry about that. I mean if the trial must proceed, it must proceed. I have no preconceived notion, one way or the other, I can assure you, but the one exception, the one preconceived notion I do have is in this case, you should exhaust the possibility of the compromise before we actually embark on a trial and the time isn't being wasted, because I'm reading and I suppose it will save time if push comes to shove. How much time do you need because I mean realistically I'll give you what time you require?
268. Mr Gun Cuninghame: Would you like us, Your Honour, to try and agree a trial bundle this afternoon, if we can't reach an accommodation?
269. Recorder Bueno QC: Look if you are talking constructively, you're talking constructively, I'd much rather the time was spent pursuing those discussions, I mean I am told that the trial bundle is virtually agreed anyway, your bundle 2, with a few additions, which we can add in. So I'm going to work on that.
270. Mr Gun Cunninghame: Very well.
271. Recorder Bueno QC: But I mean if I have to actually read this, to the point of being entirely au fait with the papers, it would take me a couple of days. I don't know how much time you both spent on this."
"570. Recorder Bueno QC: It seems to me, listening to so much of this, it seems to me this is a case where a lot of progress ought to be made. You know I'm not going to enquire too closely, my job of course is to try the case if the parties can't agree, but I also see it as very much part of my function where there is a prospect of a principle compromise, to give appropriate latitude. But anyway, let's not waste time on that, we can talk about it over the luncheon adjournment."
A little later the Recorder said,
"602. Recorder Bueno QC: I really have to rub my eyes in disbelief that grown men you know who have been friends and partners for many years, they've fallen out, we should actually be bickering over items like this, it's absolutely mind boggling. I mean it's a grotesque waste of time and money that we should be having to litigate all this. I mean, I'm sorry, I'm not criticising you for one moment, but I really am rubbing my eyes in disbelief, as this is unfolding. Just the thought now, we're going to have to try and reconstruct what all this stuff is, what the value of it is, and how it's going to be dealt with, I mean this is just farcical."
"799. Mr Gun Cunninghame: Well I think it might be helpful if we just had a little bit of time to take stock and just…..
800. Recorder Bueno QC: Shall we say quarter past 12?
801. Mr Watson: Could I just ask that simple question, how much do they accept that they owe me?
802. Recorder Bueno QC: Well look, I mean I'm sure I'm just as keen as you are to know what the real dispute is between the parties at the moment, I mean there are difficulties on both sides, as I've said I know that there have been serious problems, you know, and I think as a result of that there are allegations of bad faith which are flying around, but at the end of the day as I've said, when businessmen enter into complicated business relationships, and they choose not to record their arrangements in writing but leave it as a matter of trust, then things invariably go wrong and you know, having to trawl through detail of this kind, at this remove, you know is very, very unsatisfactory. So as I say these are not matters of trust, these are matters of record and you know just as one party is convinced that he may be right, so the other party is convinced he may be right and there is ample scope here for misunderstanding, Mr Watson, on both sides and you know sometimes when there are problems of this kind, the thought becomes father to the deed and so I think take stock. I shall re-read your witness statement and make sure it's coming from the right bundle. Okay."
"807. Recorder Bueno QC: Word has reached me, Mr Watson, do sit down please.
808. Mr Watson: Thank you very much.
809. Recorder Bueno QC: You've had a little bit of a turn……I do understand.
810. Mr Watson: I'm so sorry.
811. Recorder Bueno QC: Don't apologise. The important thing is, are the parties talking constructively?
812. Mr Gun Cunninghame: Yes, well actually more than that Your Honour, we've agreed points of principle which should resolve all the issues between the parties.
813. Recorder Bueno QC: Well that's a very happy bit of information. I'm very glad, because as I said, some decisions would have had to be taken down the line which perhaps would have been uncomfortable for one or other of the parties, perhaps both.
814. Mr Gun Cunninghame: We need to work out the figures, and in view of Mr Watson's situation, we found the conference room very stuffy, what we are proposing to do is to go elsewhere, I'm going to stay with the parties and we're going to work through the figures this afternoon and this evening.
815. Recorder Bueno QC: Do you want to come back tomorrow morning then?
816. Mr Gun Cunninghame: The idea would be to come back with a draft Order tomorrow morning. Also Mr Watson may want to take some legal advice.
817. Recorder Bueno QC: Well you know the one thing that is most important is that this agreement is ….I mean no settlement, ones parties are happy with, I mean you know everybody's unhappy when a case settles, but on the other hand everybody should be happy. But these are matter of great moment so far as you're concerned, and indeed so far as the defendants are concerned and you know if you're a little bit under the weather at the moment, if you feel a little bit under pressure, the last thing that we want is for you to feel that in any way you're being coerced into a settlement. But I mean at the moment, if you are satisfied the points of principle which are principled ones and ones with which you're comfortable, have been arrived at, then it's a question of rolling up your sleeves and quietly working through the figures, then you should have that opportunity to do so. So are you happy for the matter to proceed as Mr Gun Cunninghame….
818. Mr Watson: Yes, I am.
819. Recorder Bueno QC: So I mean….
820. Mr Watson: I don't feel under pressure.
821. Recorder Bueno QC: Well I mean I can take it that there is an accord, there is consensus as to how this matter may now finally be disposed of.
822. Mr Watson: I think that we both think that we are talking about the same figures.
823. Recorder Bueno QC: Do I take that as a yes or as a maybe?
824. Mr Gun Cunninghame: Well the only thing I would say is that until everything is agreed, nothing is agreed."
The Recorder indicated that he was willing to adjourn to any time on the following day (the final date of the fixed hearing) that was convenient to the parties: 10 a.m., 10.30 and 11 o'clock were canvassed by the Recorder. He asked finally whether 2 p.m. might be more realistic, to which the Respondents' counsel indicated his agreement; Mr Watson did not dissent.
"893. Recorder Bueno QC: Is that alright for you both to come back, I think it's as well to have everybody here so it's done and dusted and you know if there is any point of principle at all, anything anybody wants to discuss, I'm at the parties' disposal. I shall gather all these back and take these with me and I shall labour mightily overnight just in case it isn't settled. Well off you go and good luck to you. If there is a need for anybody, they want to have a telephone conference with me tomorrow morning, because I'll be here, is there a telephone number at the court at which I can be reached? You could phone, if there is a need, if you phone the court office, they'll get word to me and I'll get in touch with you somehow. Take your dad back and give him a drink, that'll perk him up. Thank you very much for your help."
"14. Mr Recorder Bueno QC: I did mention to you that interest is of course discretionary and indeed there are cases at the highest level certainly Court of Appeal I am thinking one particular authority of (inaudible) LJ which I am sure you will be familiar with. Where a party brings problems and delays on himself then of course there is a good case even for disallowing any interest and you know you should bear in mind Mr Watson that whatever the outcome of these proceedings you chose deliberately to conduct your financial affairs, your commercial relationship, with the Defendants in a covert way in order to obscure your financial dealings from your wife and of course as a result of that we have got a lot of problems. So I give you fair warning at this stage and I am not pre judging anything but I am telling you at this stage fair warning that there is a real likelihood at the end of this case that you will not get the interest that you are seeking because I mean as I said you are to a large extent the author of your own misfortunes. If these arrangements had been reduced to writing in the way that proper commercial men regulate their affairs rather than your having obscured your relationship in order to shield your financial dealings from your wife then a lot of this could have been avoided so I think you should bear that point very much in mind. Now where are we at?"
"56. Mr Watson: Objection Your Honour to that.
57. Mr Gun Cunninghame: It's now too late.
58. Mr Watson: No, no I can't take that.
59. Recorder Bueno QC: Look let's try and be realistic about it because these proceedings as I said are ones which should never have come about I have bestrewed (sic:eschewed) the use of language which you know would actually reflects my true feelings about litigation of this kind but when we get down having narrowed the issues to these particular items here looking at the case in context, looking at the matter in the context of the case as a whole I really, I do raise my hands in utter exasperation.
60. Mr Watson: Me too…..
61. Mr Recorder Bueno QC: There is an issue here of proportionality and you know these proceedings are now almost out of control. They are almost Un-triable and again Mr Watson you are in a substantial mess and responsible for these proceedings not being correctly prepared for Trial and again this is something that may well reflect on costs at the end of the day. Now I mention all these matters now because you are not legally represented today but you must bear in mind what my provisional thinking on these matters is. Now I am not pre judging anything but I certainly know more than enough about the case to express those views. Bearing in mind what I said about interest and bear in mind what I have said also about costs because I mean these, the bundles that I have and the lack of pagination I mean it's shambolic and you are the Claimant at the end of the day, you are responsible for the conduct of these proceedings. It is your job to ensure that the paperwork is in order and with your failure to comply with the District Judge's direction with regard to the service of an index which has resulted in very considerable inconvenience to the Court."
Mr Watson drew to the Recorder's attention the absence of a statement of issues from the Respondents' side, in compliance with the court's earlier direction. The Recorder's riposte was, "Well your statement of issues was extraordinarily unhelpful". Mr Watson said, "Well it's what we're using". The Recorder replied, "Your statement of issues is one page. [I]t was almost unintelligible, Mr Watson". He added a little later, "…we have received a very detailed skeleton argument on behalf of the Defendants…It very helpfully set out what the issues in the case were in an uncontentious way and that was of considerable assistance to me…". There ensued the following,
"81. Mr Recorder Bueno QC: ………Now if you, it is for you to decide Mr Watson if you don't wish to compromise this case that is your right and if you're saying that settlement of this case depends upon settlement of all items but those two particular matters should not be regarded, sorry those two particular matters will balk the overall settlement then so be it we will continue with the Trial.
82. Mr Watson: That is what I am saying.
83. Mr Recorder Bueno QC: You're saying that are you . Alright then this is twenty past two on day 4. We have wasted a huge amount of time in this case obviously there is no point in proceeding with this case today. Either I simply abandon this Trial and it would have to be re listed before another Judge on another occasion and I give draconian directions and I will also hear submissions about costs and whether you want any interim costs orders or anything of that sort. Either side can ask for that of course and I am not talking to you I am talking to both of you, or else I will press on this afternoon with Mr Watson and we will adjourn this matter and it will come back to me at some time when the parties are free and when I will be able to do it and the Court can accommodate us."
"102. Mr Watson: In an effort to be reasonable Your Honour we have a difference of £2,000 on that and without being able to reach agreement on which should be taken I suggested that we settle it 50/50 draw a line down the middle of it.
103. Mr Gun Cunninghame: We perfectly agree Sir.
……….
116. Mr Watson: Yes but the answer is yes."
The Recorder also checked that Mr Watson had been able to speak to his solicitor, as he had indicated on the previous day that he wanted to do. But still there followed statements indicating that interest and costs remained in dispute. Shortly before a further break in proceedings, the Judge said, (obviously jovially),
"149. Mr Recorder Bueno QC: ………….I should give everybody fair warning that this is a building which deals with criminal cases. I am sure there are cells here which could be put to good use if you haven't settled."
I should also refer to the following passage, to which Mr McLinden referred, which appears a few pages further on in the transcript and before the break:
"251. Mr Watson: I agree and I am more than willing to reach agreement but as you quite rightly said yesterday I will not be steamrollered into reaching an agreement particularly when I am not represented.
252. Mr Recorder Bueno QC: It was your choice not to be represented Mr Watson.
253. Mr Watson: No unfortunately it wasn't my choice. If you don't have any money you can't be represented.
254. Mr Recorder Bueno QC: Mr Watson there it is the fact is that you are not legally represented today. If you feel that you are being steamrollered and you don't feel that you are in a position properly to exercise a free and independent mind well then we will simply continue with the Trial. If you on the other hand you as an experienced businessman feel that you have made good progress so far[sic]."
"362. Mr Recorder Bueno QC: Yes but the point is I can see that the parties are not going to agree about costs here and if the parties don't agree about costs then the settlement falls out of bed on that basis well I mean that would be a very, very unhappy circumstance because the costs consequent at the end of the day are going to be horrific but on the other hand if the parties are prepared to trust me first of all to deal with costs and second to deal with interest I mean I have expressed such views that I feel able to express at this time on the basis of the cases I know and I think I have got a pretty shrewd idea of what this case is all about now. "
The suggestion arose that the judge should decide the issues of interest and costs and there follows a passage in the exchanges upon which Mr Watson relies strongly in his appeal to this court. It is however, unclear whether the answer at 371 below should or should not be attributed to Mr Watson rather than to Mr Gun Cunninghame. The passage is as follows:
"369. Mr Gun Cunninghame: Well he is saying from his point of view would you like to hear how I see the costs.
370. Mr Recorder Bueno QC: Oh god I am not going to make a, in fact I am bullying him slightly.
371. Mr Gun Cunninghame: You are indeed you are doing my job which is why I will shut up.
During the same session, however, it was said,
"579. Mr Recorder Bueno QC: I don't want to shoot from the hip because we are all of us tired. So.
580. Mr Watson: Can I just say that I do appreciate Your Honour sitting so late to sort this out."
A further break in proceedings followed.
"974. Mr Recorder Bueno QC: Thank you very much. Right now the Order is now signed, the case is now at an end. You had better go because the Court staff here have been extremely indulgent. It has been a long innings and I would like to just congratulate the parties for having settled this case. I know it's not been very easy. There has been goodwill on all sides and I don't know whether the bruises will appear through the passage of time but anyway thank everybody. I am not going to apologise for keeping everybody here because I have a strong suspicion that if I hadn't been cracking the whip this matter wouldn't have been resolved. May I also particularly thank the Usher here whose has had a huge amount you know keeping everybody at bay.
975. Mr Watson: Thank you very much.
976. Mr Recorder Bueno QC: And you might find this difficult Mr Watson but I am going to thank Mr Gun Cunninghame because he has been of great assistance.
977. Mr Watson: He has.
978. Mr Recorder Bueno QC: He has and somehow or another he has steered this rather rocky ship into the safety of the harbour.
979. Mr Watson: He has done an excellent job.
980. Mr Recorder Bueno QC: So thank you very much indeed you have been very helpful.
981. Mr Watson: Now can I on behalf of both parties' thank you very much for sitting so late and being so helpful Sir.
982. Mr Recorder Bueno QC: Well actually it was entirely self protection for suspecting having to decide this case could have been very daunting."
(C) Events after the order
(D) The Arguments on the Appeal
i) It is a trial judge's duty to "case manage" the trial justly to completion within the time allocated for the hearing;
ii) Where parties wish to discuss settlement that should not displace the primary duty as in i) above;
iii) A trial judge may properly encourage settlement, but should not engage in the process of it.
"The judge's part….is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevances and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal."
i) Was there an agreement?
ii) If so, is it open to the court to interfere?
iii) If so, in what circumstances?
iv) Is a violation of Article 6 such a circumstance?
v) In answering iv), what is the violation in question?
vi) Was that violation "causative" of the wrong of which the subject complains?
vii) In this case, in any event, was the agreement affirmed?
viii) Further or alternatively, has there been acquiescence by Mr Watson or is there an estoppel arising which bars his present appeal?
"31 To my mind, the CPR therefore give the court rather more wide-ranging, more flexible powers, than the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wider public interest. Further, the objection to deal with a case justly must, as I see it, sometimes (albeit rarely) require the court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that that means that the court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart form what the parties have agreed."
"23.In this case the March 2009 Order contains, in the schedule, a binding contract between the parties compromising the proceedings. It is not a consent order made at an interlocutory stage by which a particular application is compromised on terms, including terms as to time for compliance. Nor is it a consent order which incorporates the binding contract as terms of the order. It is in the form of a Tomlin Order. In the commentary to CPR 40.6 at paragraph 40.6.2 of the White Book Volume 1 it is stated:
"Essentially, a Tomlin Order records terms of settlement agreed between the parties but those terms are not ordered by the court and are not enforceable as a judgment, at least not without a further order.
The terms contained in the schedule are not something for approval by a judge. The judge will, however, approve the order itself.
...
If it is intended to embody terms of settlement which can be enforced as an order the terms need to be in the order itself (not the schedule) and set out clearly. Such an order should not include provision for a stay of the proceedings as there would be no point in such a stay."
24. As set out in that passage, the schedule to a Tomlin Order sets out an agreement which has been made between the parties as to the terms on which the proceedings have been settled. In general once the parties have entered into an agreement the ability to set aside or vary that agreement depends on there being a remedy in relation to that contract. Otherwise the court is only concerned with the meaning of the agreement in the schedule and this depends on normal principles. As Lord Steyn said in Sirius International Insurance Company (Publ) v FAI General Insurance Limited [2004] 1 WLR 3251 at [18] "The settlement contained in the Tomlin Order must be construed as a commercial instrument."
25. In my judgment where the terms are contained in a schedule to the Tomlin Order the position is different from the terms being incorporated as part of a consent order. As set out in the commentary to the White Book a party can settle a case and seek a court order in one of two ways. First it can seek to incorporate the terms of the settlement within the body of the order so that those terms are part of the court order. The alternative way is by way of a Tomlin Order under which the parties seek a stay of the proceedings on terms that the parties will comply with the agreement in the schedule, with liberty to apply to enforce those terms. The court approves and orders the consent order in the first case but only approves and orders the terms of the order but not the terms of the schedule in the second case.
26. In the case of a Tomlin Order a stay is given on the basis that the agreement is complied with. The terms of the schedule are not ordered by the court. Frequently the terms of the agreement in the schedule to a Tomlin Order are detailed and contain matters which go beyond the scope of the original dispute in the proceedings.
27. As a general rule, I cannot see that the provisions of the CPR either in the overriding objective in CPR 1.1 or in the requirement for active case management under CPR 1.4, as referred to in Ropac, have any application to the terms of the agreement in the schedule to a Tomlin Order which have been freely entered into by the parties as a binding contract. As set out in Weston v Dayman CPR3.1(7) gives the court power to vary or revoke an order and Arden LJ proceeded on the basis that it applied to the consent order in that case, without deciding that it did. In principle, it would seem that the provisions of the CPR might permit the court to vary or revoke a consent order but, even in that case, a major and often determinative factor in the exercise of that power would be the fact that there was an agreement: see Ropac and Weston v Dayman. Equally, I see no reason why that same principle would not apply to the order part of the Tomlin Order. "
(E) Discussion
"In most litigious situations the expressions "waiver" is used to describe a voluntary, informed and unequivocal election by a party not to claim a right of raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicant's failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint: p 465, para 54. In Pfeifer and Plankl v Austria 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked: p 713, para 38. In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified…."
(F) Conclusion
Lady Justice Arden:
Lord Justice Jackson: