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Cite as: [2005] EWCA Civ 1478

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Neutral Citation Number: [2005] EWCA Civ 1478
A3/2005/1626

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE NORRIS QC
(sitting as a deputy judge of the High Court))

Royal Courts of Justice
Strand
London, WC2
11th November 2005

B e f o r e :

LORD JUSTICE LLOYD
____________________

MARLEY (UK) LIMITED Claimant/Respondent
-v-
EDWIN ARTHUR ALCOCK Defendant/Applicant

____________________

(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

The Applicant appeared on his own behalf
The Respondent did not appear and was not represented

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE LLOYD: This is an application by Mr Edwin Arthur Alcock for permission to appeal against an order made on 18th May 2005 by His Honour Judge Norris sitting in Birmingham, whereby he ordered that a property known as High View, Sutherland Road, Longsdon in Staffordshire be sold by way of the enforcement of a charging order granted on 3rd September 1999 in favour of the claimant, Marley (UK) Ltd.
  2. The charging order secures the payment of costs awarded to Marley as defendant in an action brought by Mr Alcock against them in 1987, which came to trial in 1994. Mr Alcock tells me that he obtained permission from the Court of Appeal to appeal against that judgment, but that he was ordered to give security for costs of the appeal in favour of Marley which he did not, and the appeal was thereby dismissed.
  3. The charging order was made on a provisional basis (a so-called charging order nisi) in May 1999. As I understand it, Mr Alcock was present at that hearing and he informed the court that he was not the owner of the property and that the owner was his mother. That led to some efforts to involve his mother in the proceedings to see what she said about it. Those efforts gave rise to a considerable resentment and sense of grievance on the part of Mr Alcock, who felt that his by then elderly and unwell mother should not be troubled with these matters. She did not in fact take any part in the proceedings.
  4. The upshot was that the order was made absolute on 3rd September 1999, as I have mentioned. It secured a sum of costs which, as I understand it, at that stage was of the order of 109,000, and the amount secured has grown substantially since then with the accrual of interest at the statutory rate.
  5. It seems that Mr Alcock applied to set aside the charging order, but did not appeal as such. His application to set it aside was unsuccessful. By the time the order had been made absolute, Mr Alcock's mother had died. By her will, which is dated August 1994, she made specific provision about the property. I think in the circumstances the sensible thing is to read the relevant part of the will, which is everything except for the opening words. It is as follows:
  6. "I am the sole owner of the dwelling and all associated land identified above [identified by her address that she had stated] by virtue of:-
    a) The original purchase of the property in the name of G.T. Alcock my deceased husband, myself and E.A. Alcock my son.
    b) Dual ownership with my son on the death of my husband.
    c) Sole ownership by deed of gift held by me of my son's half ownership. This follows the purchase of land adjacent to this site by means of a financing loan from the Co-Operative Bank, secured in the name of my son and now paid off.
    In return for the deed of gift of full ownership of this property I have granted to my son, my sole heir, a home for the rest of his natural life and ownership of the land on which exists his workshop.
    On the death of my son this property along with all my effects and monies are bequeathed to his immediate dependant children. By this means my son will not become owner of my property and effects on my death but will enjoy the normal rights and privileges of these items as the sole member of my immediate family for the rest of his natural life.
    Should my son die before or after my death without issue of children, under no circumstances is this property to be disposed to:-
    a) Any relative who has, or purports to have, a direct or indirect family connection related or not related to the family tree of my deceased husband or my family tree no matter how remote or close the family link the claimant may argue.
    b) Any person living or related to any person living in the village of Longsdon ST9 XXX, Staffordshire."

  7. That will, I should say, is now the subject of a grant of letters of administration with the will annexed to Mr Alcock and, he tells me, a friend called Cynthia Beckwith. That is dated 24th November 2004. He also tells me that there is an application pending in the Land Registry for the registration of the names of the personal representatives as the proprietors of the property. It is not, as I understand it, at present registered and, according to the judgment below, Marley has lodged a caution against first registration, which would presumably mean that the title can be registered but only subject to an appropriate entry in respect of Marley's interests under the charging order.
  8. The present proceedings were brought in 2004 to enforce the charging order. They were commenced in July 2004. Mr Alcock sought an adjournment of an early hearing in order to put in evidence in opposition. The judge gave that permission, but directed that certain matters be excluded from the evidence that he was permitted to lodge. In particular, the judge directed that the evidence to be put in shall not include evidence intended to:
  9. "(1) show that the dismissal of the Court of Appeal of the defendant's appeal against the order of His Honour Judge Wilson-Mellor QC dated 18 April 1994 was perverse or in contravention of the Human Rights Act 1998;
    (2) show that Marley UK Limited does not have the benefit of the judgment or the charging order relied upon in this claim;
    (3) show the failure of the attachment of earnings order is attributable to acts of Marley UK Limited or its legal representatives."

  10. Mr Alcock challenged that direction by way of limitation of the evidence. His application for permission to appeal came before Waller LJ on 11th April 2005, Mr Alcock appearing in person as he does before me and as he did before Judge Norris, and the application was dismissed.
  11. So Marley then went back to Judge Norris to make the substantive application to enforce the charging order, and that came before the judge on 18th May. Mr Alcock had not until then put in in any formal way evidence in opposition, but he had prepared a document headed "affidavit". On that day he took the opportunity to swear it at court, and it was read before the judge and it is in the bundle that I have.
  12. Marley were applying, first of all and foremost, for the enforcement of the charging order by an order for sale of the property. They also had two other applications, namely to tack on to the security given by the charging order some other costs which were not the subject of a charging order and, secondly, to seek to enforce some costs which were incurred during a period in the earlier history of the original action, when Mr Alcock had legal aid and therefore also had the protection given under the legal aid legislation against orders for costs against him.
  13. Mr Alcock's affidavit put before the judge deals mainly with the ownership and the history of the property. It is the property at which Mr Alcock lives and has for many years lived. He also works there in a building which he has caused to be constructed himself, as is referred to in Mrs Alcock's will in the words "the land on which exists his workshop". Accordingly, the enforcement of the charging order by sale would clearly have a very significant effect on Mr Alcock, as regards life, residence and work. The judge heard counsel for Marley opening the case. Then he heard Mr Alcock. There seems to have been a certain amount of toing and froing. In the course of the hearing, as I have mentioned, the affidavit was sworn and he gave judgment in favour of Marley.
  14. I should say that in the meantime Mr Alcock had applied to the European Court of Human Rights for remedies against the United Kingdom Government complaining of a number of things, but principally, as I understand it, firstly, the fact that his appeal against the 1994 order had been stifled by the requirement to give security for costs which he could not afford to comply with; and, secondly and more generally, an alleged breach of Article 6 of the Convention in respect of the inequality of arms, not quite for the whole of the 1997 case but for the whole of the period after the withdrawal of his legal aid, on the basis that thereafter he had no representation, he was fighting what he has referred to before me as a multi-million pound company and it was an unequal battle.
  15. Mr Alcock asked the judge to stay the proceedings as regards enforcement of a charging order pending the outcome of the application to the European Court of Human Rights. The judge refused that application, and it is dealt with at paragraph 12 of his judgment. Mr Alcock challenges that in this appeal and would seek exactly such an order from the Court of Appeal.
  16. Mr Alcock sought to put his wider grievances about not only Marley but others and other events before the judge, as the judge refers to at paragraph 15 of his judgment, and as indeed he has to some extent done before me this morning. The judge ruled those matters to be irrelevant to the question before him, and Mr Alcock complains by way of appeal against that narrow view of relevance.
  17. Mr Alcock took the point that he had no beneficial interest which could be the subject of a charging order. The judge considered whether, in respect of that, to direct an inquiry as to what if any beneficial interest he had and ruled that he would proceed without such an inquiry, and proceeded on the basis that Mr Alcock did have a sufficient beneficial interest to justify a charging order. That is also challenged by Mr Alcock today and is, to my mind at any rate, his principal point on this appeal.
  18. The judge then went on to consider, in the exercise of the discretion that he undoubtedly had, whether or not to order a sale, accepting that Mr Alcock would thereby lose his home. Although he did not refer specifically to losing his place of work, it seems to me that it cannot have been lost on the judge that that would also be the case, not least because the judge had himself quoted Mrs Alcock's will with the reference to the workshop. I have no doubt Mr Alcock referred to it to the judge as he has to me.
  19. The judge did proceed on the basis of the evidence before him as to values, which showed a likely gross proceeds of sale of the property of 300,000. On that basis and on the figures as they were, he said there would be some balance left for Mr Alcock on a sale. Mr Alcock disputes this and disputes generally the exercise of the discretion in favour of a sale. I should say that in the context of deciding whether to order a sale, the judge made specific reference to Article 8 of the Convention.
  20. Mr Alcock brought his appeal to this court relying on a number of grounds. First is the proposition to which I have referred, that no further steps, including the enforcement of the charging order, should be taken pending the resolution of the European Court of Human Rights proceedings. Second, I think I can fairly summarise by saying that the judge was wrong in disregarding, or ruling irrelevant, Mr Alcock's wider grievances and his case for saying that there had been breaches of the European Convention on Human Rights in a number of respects. The third is in substance the question of whether he has a beneficial interest in the property. The fourth was the question of whether there would be any equity in the property. For good measure, he added a further point before me turning on the delay before Marley sought to enforce their judgment, while it was accruing interest at the, for present purposes, high statutory rate of 8%.
  21. The first question, namely the stay, is dealt with by the judge at paragraph 12. He refused to grant a stay. He had no idea of the nature or timescale of the European Court proceedings and, having regard to the time that the matter had been outstanding, he considered that he ought not to delay the matter any further. It seems to me that he was entirely right to take that position, and indeed I would go one stage further with an additional reason for refusing a stay on that ground. If Mr Alcock has a justified complaint of breach of any of the relevant Articles of the Convention -- and he relies on Articles 3, 6, 8 and 14 and from time to time I think other Articles have been mentioned, but those are the main ones -- then he may have a case for being awarded just compensation by the European Court against the United Kingdom Government for its failure to ensure that the law gives him adequate protection under Article 6 or Article 8, or as the case may be. No order made by the European Court of Human Rights can have any impact on the rights and obligations as between Mr Alcock and Marley. That is a basic proposition of human rights law. Human rights obligations are binding on public authorities: they are not binding as between private persons.
  22. Accordingly, whatever the outcome of his proceedings in the European Court, they have no relevance to the proper order to be made in these national proceedings. Indeed, if and so far as these proceedings are relevant to the European Court proceedings, one of the basic propositions of human rights law is that a party who seeks a remedy from the European Court must use to the full his remedies under national law first. Therefore, he must have bought to a conclusion any proceedings that he is entitled to bring.
  23. For those reasons, it seems to me that the judge was quite right not to stay the proceedings pending the European Court application, and I see no prospect of an appeal succeeding against that.
  24. I should perhaps have said already that the only true scope of this application is to decide whether Mr Alcock has reasonable grounds for seeking to persuade a Court of Appeal on the full hearing of an appeal in this matter that the judge's order to enforce the charging order was wrong. Mr Alcock has sought to persuade me that there is a much wider ambit of these proceedings, but in my judgment he is plainly wrong about that.
  25. The second challenge to the judge's order was indeed as regards the judge's failure or refusal to take note, or to have regard to, the breaches that Mr Alcock says he has suffered of the European Convention on Human Rights. It seems to me that Mr Alcock has identified what may well be arguable breaches, though I have no idea of the substance of his case, as regards security for costs and legal aid. Those are points which have been considered by the European Court before and which would be within their jurisdiction. The question of the rights and wrongs of a contract dispute, neither party to which is a public authority, is not something with which the Court of Human Rights would have any dealings.
  26. As it seems to me, the judge was entirely right to disregard the matters of history that Mr Alcock had described to him, going back to the circumstances of the original building contract; the consequences of the failure of that contract; the litigation; the conduct of which he accuses Marley in pursuing him for costs; and the conduct that he alleges that caused the loss of his employment with the Health and Safety Executive; and, for that matter, the conduct of Marley's solicitors in, as he says, harassing his late mother by seeking to serve documents on her.
  27. So far as this court is concerned, the judgment in Marley's favour stands. The charging order has been made and has not been appealed. The only question is whether, on the footing that there is a valid judgment and a valid charging order, that charging order should be enforced. In my judgment, the previous history, as strongly as Mr Alcock feels about it, and that may be entirely natural, is irrelevant to the question before this court.
  28. What is arguably relevant to the question before this court is the issue of ownership of the property. Mr Alcock's ground of appeal on this point is also put as a matter of human rights. He says:
  29. "The judge has refused to accept that the provisions of my late mother's will dated 1994 are protected by Article 8 as above. As such he was operating out of his jurisdiction on a matter settled at a probate court."
  30. On the face of it, that is a little puzzling. The judge was shown Mrs Alcock's will. He read it out in his judgment, as I have, and he did not question its terms. What he did consider was what was the effect of those terms. What he said is in paragraphs 28 and 29 of the judgment, which I will read:
  31. "28. The only issue is whether that interest is an entire beneficial ownership or the sort of beneficial ownership created by the trust described to me by Mr Alcock. It seems to me that Mr Alcock's interest under that trust is as good as an absolute freehold interest. He has an entire life interest. There is then an intervening interest in favour of his dependant children of whom there are at present none. The will then makes an ineffective disposal of the remainder of the beneficial interests. There is accordingly a partial intestacy. On the evidence Mr Alcock is entitled to the entirety of that intestate interest. Effectively, therefore, if the will rules, he has an equitable fee simple, defeasible in the event that he has a dependant child who fulfils the condition. If the true arrangement is to be derived from the deed of gift, as described to me, it seems to me that once again Mr Alcock has a life interest in the property and there then follows an ineffective disposal of the reversionary interest which results to him, so that he is, in effect, the owner of the equitable fee simple."
  32. So far as the deed of gift is concerned, the judge had already said that the basis of that was that the property would be Mr Alcock's home for the rest of his life, but otherwise it was his mother's property, so that that would have been given effect by the terms of the will. That was paragraph 28. At paragraph 29 he goes on as follows:
  33. "I do not have to determine for the purposes of the exercise of my discretion which precisely is the true analysis, for they are sufficiently close to be of equal weight in the exercise of the discretion. Whatever interest Mr Alcock has, has been found by the Court to be a chargeable interest, is (on the evidence which persuaded the Court to grant the charging order) a fee simple absolute, or is (on the alternative case advanced by Mr Alcock) virtually as good as a fee simple absolute. The arrangements which were entered into seem to have been prepared by a draftsman, I know not who, displaying all the artifice of one who seeks to keep High View from being available to Mr Alcock's creditors but all the artlessness of one unfamiliar with the English law of settled land then current."
  34. So far as that is concerned, Mr Alcock takes issue with the concept of partial intestacy. He says you cannot be partially intestate; either you leave a will or you do not. So far as it goes, that is true. Mrs Alcock did leave a will, of which, as I say, letters of administration have been granted. So there is no question as to the formal validity of that will. But the words "partial intestacy" are used in this sense, that a man (or woman, for that matter) may leave a will by which dispositions are made of his or her assets, but, for whatever reason it may be, the will does not dispose of all the assets. This may be, for example, because it relates to one specific asset and not to the generality of other assets, or in the present case, as the judge saw it, what Mrs Alcock has done is to make a disposition of the right to occupy which Mr Alcock claims, and is indeed clearly entitled to under the will for his life, she has made a disposition to his dependent children (if there were to be any on his death), but she has made no disposal of the property in the event that he does not leave dependent children on his death. In that sense, she is partially intestate because if when he dies he is not survived by dependent children, there will be nothing in the will that says to whom the property is to go.
  35. Mr Alcock's answer to that, as I understand it, is that that is a matter for him, that his successors have nothing to do with Marley, and Marley cannot claim to attach their property. I think that it may be that Mr Alcock understands that, subject only to the question of whether he is survived by dependent children (and he has none at the moment), it is up to him in his will to say where the property should go. That is not the result of anything said by Mrs Alcock in her will. She has not chosen to direct what is to happen to the property in that event. The result is that there is a partial intestacy because in a particular event she has not disposed of the asset. To that extent the property does pass on an intestacy, and because Mr Alcock is her sole next of kin it passes to him. It is for that reason that the judge said that, subject to the possible event of his being survived by a child who fulfils the condition, Mr Alcock is the absolute beneficial owner of the property. It seems to me that the judge is plainly right.
  36. There is no possible breach of Article 8 of the Convention involved in that. Mrs Alcock's freedom of testamentary disposition is entirely respected. There is no question of operating outside relevant jurisdiction. The probate registry has indeed the sole jurisdiction on the question whether the will ought to be admitted and made the subject of letters of administration, and they have now decided that. It is right and necessary the Chancery Division and for Judge Norris to determine what the effect of the will was and he has done that. It seems to me he has plainly come to the right answer. As he says at the end of his judgment, it may be that, as Mr Alcock has told me, the will was designed to keep the property away from Marley, but it has not succeeded in keeping the property out of his ownership. If, subject to Mr Alcock's right to occupy and subject to the possible interest of his dependent children, Mrs Alcock had left the property to some other named person or to a charity, just to quote examples, then Mr Alcock would not be entitled to the property other by way of a right of occupation which amounts to a life interest. As it is, subject only to the possibility of his having dependent children surviving, he is the owner, both of the life interest and of the capital. Accordingly, it seems to me plain that he had a sufficient beneficial interest on which the charging order could bite.
  37. I should say that, as the judge recognises, the making of the charging order in the first place might be said to have resolved the question of ownership, because already at that stage Mr Alcock had taken issue with the question of whether he had any beneficial interest sufficient to be charged. That was not appealed, and a court might have taken the view that that was the end of the matter. Judge Norris decided that it was appropriate to look the matter more fully and he has done so, and in my judgment he has come to the right and indeed the only possible answer.
  38. Mr Alcock, as I have mentioned, took another point which is that the judge was wrong, when he went on to consider the exercise of his discretion at paragraph 30 and following, to approach the matter on the basis that the gross proceeds were valued at some 300,000. That was the evidence before the judge. His directions for evidence had permitted Mr Alcock to put in evidence on valuation. Indeed at paragraph 13 the judge records that Mr Alcock had told him that the property was worth no more than 150,000 because he has done no work on it, it has deteriorated hugely and is on the point of becoming uninhabitable. But in the absence of evidence, the judge thought it right to proceed on the basis that the property as a whole was worth of the order of 300,000 and that would leave some balance, after the enforcement of the charging order and of course the costs of sale, in order to fund Mr Alcock's future accommodation. He concluded paragraph 30 of his judgment by saying:
  39. "I am satisfied that there is no significant risk that Mr Alcock will be homeless unless that is the course that he chooses for himself."
  40. So far as the evidence before the court is concerned, there is no prospect that a court could come to the conclusion that that was the wrong way to proceed because, as I say, Mr Alcock did not put in evidence on that point.
  41. Mr Alcock, as I have said, also sought to rely on the excessive time that the matter has been running, particularly in circumstances in which 8% has been accruing by way of statutory interest all along. He referred to the fact that Marley's solicitors were late in lodging their bill for taxation, although I think I am right in saying that, while that is true and they had to obtain permission to proceed to taxation late, interest was disallowed on costs for a given period. But be that as it may, it is undoubtedly the case that with the rate of interest on judgment debts at 8%, there is a considerable incentive on any judgment debtor who is in a position to do so to pay off the judgment in full or in part early. That is simply a fact. Mr Alcock said that Marley and their solicitors would regard this asset, earning interest at 8%, as "a nice little earner". It was in this context that before me, as I think also before the judge, he said that they had harassed his late mother with a view to being able to enforce against the property. I take no more regard of that allegation than the judge did. The fact is that the judgment stands and under the law, as it is, interest accrues on it. But I would find it very surprising to suppose that on the history of this case either Marley or their solicitors would regard this asset as anything like "a nice little earner".
  42. Mr Alcock applies for Judge Norris' order to be set aside and for the matter to be stayed pending the decision in the European Court of Human Rights and only then be tried. Secondly, he applies for a judicial review of the action, by which he made it clear to me that what he means is a wide-ranging review of the entire conduct of the matter since 1987, if not before, on the part of Marley and their solicitors and others concerned. Next he seeks an order against Staffordshire police to reveal the name of an informant against him under the provisions of the Data Protection Act and the Freedom of Information Act and other legislation. As I understand it, Mr Alcock may have taken proceedings against the police already to seek such information. Plainly, even if that had any relevance to the charging order and its enforcement, which it does not, no such order could be made without notice to the police.
  43. I am satisfied that there is no prospect on the grounds that have been put to me by Mr Alcock that he could persuade a Court of Appeal that the judge was wrong to order enforcement of a charging order. It is plain to me, as it no doubt has been to all the other judges that have dealt with this, or at any rate it plainly was to Judge Norris, that Mr Alcock has a huge sense of grievance against Marley, against their solicitors and against others, and he was willing to associate all the Birmingham judges with whom he has had any dealings with that. It is not for me to say whether and if so how far any of that is justified. All I can rule on is the one question, namely whether he should have permission to appeal against the order enforcing the charging order, and in my judgment he should not because there is no prospect that any such appeal would succeed.
  44. What I would say in addition to that is that it seems to me, for all Mr Alcock's strongly felt sense of grievance and plain sincerity in bringing the application and making the assertions that he has, this is an application which is entirely without merit. There never was any prospect that it could succeed on the grounds on which it was put. A finding to that effect means that the court has to consider, under the new practice direction, whether to impose on the applicant any form of civil restraint order. I have considered whether I should make a limited civil restraint order as regards Mr Alcock in relation to these proceedings. I have come to the conclusion that I should not. The main reason for that is that, although I would have jurisdiction to do so, the practice direction about civil restraint orders indicates that in the ordinary way it is following the making of two applications which are dismissed as totally without merit that a civil restraint order ought to be made. It seems to me that when the question of such an order comes to be considered by the court without an application from the opposing party, it is right for the applicant to be on notice of the possibility of such an order, rather than having it, as it were, sprung on him.
  45. Accordingly, my dismissal of Mr Alcock's application will record that the application is entirely without merit. He should be aware that this may have the consequence that if he makes further such applications in these proceedings which are considered by the court to be of that nature, he may find that a limited civil restraint order is made against him, the result of which would be that he would not be able to make further applications in these proceedings without the permission of a nominated judge. Who that judge would be would depend on the terms of the order. He would, of course, be able to resist any applications brought by the other side, but he would not be able to initiate applications without permission.
  46. As I say, I will not make such an order today because I think it would be premature. But the dismissal of Mr Alcock's application on this ground means that he is, as it were, on notice that that question may arise in future.
  47. For today, therefore, all I will do is dismiss the application and record that the application is dismissed as being entirely without merit.
  48. ORDER: Application for permission to appeal refused; it is to be noted on the court record that the application is dismissed as being entirely without merit.
    (Order not part of approved judgment)


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