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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Goodfellow v Markos [2007] EWCA Civ 254 (28 February 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/254.html Cite as: [2007] EWCA Civ 254 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SOUTHEND DISTRICT REGISTRY
(HIS HONOUR JUDGE YELTON)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE LLOYD
____________________
GOODFELLOW |
Claimant/ Respondent |
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- and - |
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MARKOS |
Defendant/ Appellant |
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THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Crown Copyright ©
Lord Justice Chadwick:
"18. I would not, however, set aside the other parts of the order of 6 September 2005. It seems to me that the judge took a very sensible course in transferring the possession order to the High Court. The High Court can decide how that order should be enforced if it is necessary to enforce it. The protection afforded to a person against whom an order for possession has been made in the High Court is greater than that of the County Court; not least because the High Court does not issue a writ of possession without a hearing on notice. In that respect the procedure in the High Court differs from the procedure for the issue of warrants for possession in the County Court.
"19. The position, therefore, is that the enforcement of this charging order will be in the hands of the High Court. That court can consider, with its expertise and powers at its command, how best to ensure that Mr Goodfellow is paid the order for costs to which he is undoubtedly entitled; without, if possible, adopting the draconian measures which will lead to Mrs Markos, an elderly lady, being evicted from her home or sent to prison. I put it that way because 44 Glenbervie Drive appears to be a property in which there is substantial equity. It should not be beyond the ingenuity of a Master or Judge of the High Court to realise the comparatively modest sum of £10,000 or thereabouts out of that equity without the need for possession proceedings.
"20. That will require a degree of co-operation on the part of Mrs Markos which seems not to have been forthcoming to date. It is very much in her interest that she appreciates that this debt will have to be paid sooner or later; and that her campaign of resistance, which is apparent from the various documents in the bundle before us, is not going to succeed in the long run."
In referring to the possibility that a Master or Judge of the High Court might devise a means of realising what was then the comparatively modest sum of £10,000 or thereabouts out of the substantial equity in the property at 44 Glenbervie Drive, I had in mind that, in the Chancery Division at least, consideration might be given to the appointment of a receiver with power to raise money on the security of an equity release mortgage. It is pertinent to have in mind that Mrs Markos is of an age at which some form of equity release -- which did not require periodic payments of interest but permitted accruing interest to be rolled up -- might well be available to her.
1. That in order to give effect to paragraph 2 of the order of 6 September 2005, the action be transferred to the High Court of Justice, Queen's Bench Division, Central Office.
2. That any interlocutory applications be referred in the first instance to himself, sitting as a High Court Judge under section 9 of the Supreme Court Act 1981 at Southend County Court.
The judge directed that because the order had been made by the court of its own motion, without considering representations from the parties, the parties should be at liberty to apply to have it set aside, varied or stayed. There is nothing in the papers before us to suggest that either party did seek to have that order of 27 October 2005 varied or set aside.
"Hearing before His Honour Judge Yelton sitting as a Deputy High Court Judge. Mr Markos and Mrs Markos did not attend. The Judge began by commenting that the Markos[es] usually ring or write if they are not coming to Court and he wondered whether they [had] been served with notice of the application. We pointed out that service was down to the Court but the Judge was happy to go ahead in their absence.
"He commented that his reason for transferring enforcement to the High Court has been endorsed by the Court of Appeal the last time [the Markoses] appealed. The procedure is different in that he would have to apply for permission to obtain a possession order whereas in the County Court it is just done administratively on paper. This gives the Defendant an opportunity to be represented and make representations.
"[The] Counsel showed the Judge my chronology showing all the problems I have had dealing with the RCJ. The Judge did not comment on that but said he could see no grounds why the writ of possession should not be issued and therefore made an order that we had permission to issue the writ of possession forthwith and costs in any event."
The order which the judge made on that day, 21 June 2006, contains a recital that notice of the hearing had been given to the defendant who failed to attend or be represented. It is clear from that that the judge must have taken some steps to satisfy himself that the defendant had notice of the hearing.
"1. The order of HH Judge Yelton disregards the Court of Appeal Judgment of Lord Justice Chadwick and Lady Justice Smith dated 24 October 2005. [This] defendant has repeatedly suffered abuses contrary to Law in this and related proceedings.
"2. It is contrary to theHuman Rights Act
1998 -- Articles 8 & 14 & Common Law. It is not proportionate to sell the defendants (sic) house because the loss to the defendant (and her son) would far outweigh the gain to the claimant. The claimant seems to be above the law, yet the defendant (and her son) do not seem to not have any rights under the law!
"3. There was no lower court hearing notification or documents and there were abuses of the process and serious irregularities. The discretion was not exercised on proper judicial principles. That was also the case with the charging order where the defendant was unable to attend court due to documented poor health, but the court ignored this.
"4. In the County Court judgment of 8 October 2003 HH Judge Yelton stated that the defendant indicated that he would not enforce any costs orders.
"5. Pro Bono Barrister has confirmed that there are serious irregularities concerning the [cost] order upon what this due action is based. The order is arbitrary and contrary to judicial principles.
"6. The defendant is unable to represent herself due to old age, poor health and circumstance. The lack of available legal assistance/representation is contrary to Basic Human Rights and the principles of a fair trial.Human Rights Act
1998 -- Article 6.
"7. The defendant totally succeeded in the related matter upon what this action is based. The order in section 5 would set a perverse precedent with a repugnant outcome contrary to law and civilisation [The order in section 5 is the order of 21 June 2006]."
The appellant's notice sought, in section 10(A), suspension of the order identified in section 5 because (it was said) that order was "contrary to the Human Rights Act 1998 -- Article 8. It is void of legal basis and is something similar to what the Nazis were perpetrating in 1941".
"If the [appellant] were not given notice of the hearing on 21 June 2006 (para 3 in her grounds of appeal) then the proper course is for her to apply to the High Court to set aside the order made in her absence. If she were given notice, but failed to attend, then she will need to explain to that court why she did not attend. There is no reason to come to the Court of Appeal unless and until she has exhausted the remedies given to her by the Civil Procedure Rules in relation to an order made in her absence.
"There is no substance in any of the other grounds set out in section 7 of the appellant's notice."
"There is no basis upon which this court should suspend the order of 21 June 2006. The applicant can apply to the High Court for that relief."
"With all due respect to Lord Justice Chadwick, kindly note Southend County Court have repeatedly treated me in a less favourable manner than other citizens in an analogous situation.
"To make any application to set aside at Southend will be treated with continued ridicule and simply subject me to further abuse contrary to Basic Human Rights."
"Legal aid has been applied for and I understand from Solicitors (Edwards Duthie) that under new rules, she meets the financial and merits criterion for this to be granted shortly. Legal Counsel has agreed to meet her next week to discuss the matter. I understand that this is the earliest that he can arrange."
On the basis of that application and that information, Pill LJ granted an adjournment. In granting the adjournment on 26 September 2006, he noted:
"I well understand the listing for this week, but having regard to the orders of Mummery LJ and Calvert-Smith J and to the fact that solicitors submitted an application for legal aid on Friday last I feel obliged to grant the application. [The] hearing should take place asap. Mr Brodrick [who is an officer in the Civil Appeals office] will monitor [the legal aid application] with the solicitors and ensure that they (Edwards Duthie) are aware of the Court's concern about the delay."
There is no material before us which suggests that an application for legal aid had, in fact, been made on 22 September 2006 -- the Friday before 26 September 2006 -- in relation to the renewed application for permission for the appeal. Nevertheless, at that stage, this court was proceeding on the basis that an application for public funding in respect of the hearing of the renewed application for permission to appeal from the order of 21 June 2006 had been made and was under consideration by the Legal Services Commission.
"I do so, having had an opportunity to speak to Mr Wyatt, [who was another fee earner in the firm and who was himself dealing with the matter. Mr Wyatt had] been able to update me as follows:
1. Instructions were last received from Mr Markos during the week of 11 December. These were concerned with formulating an application for legal aid to the Legal Services Commission. This was by way of an application for a Public Funding Certificate to set aside the Costs Order made by Southend County Court.
2. The legal aid application has not yet been sent to the Commission because Mr Wyatt still awaits instructions from Mr Markos.
3. Mr Wyatt has left a number of telephone messages on Mr Markos's voicemail asking him to make contact to give instructions on behalf of his mother. To date he has yet to do so."
Lord Justice Lloyd:
Order: Application refused.