[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 887 (Ch)
||Case No: B30BS071/B30BS107/A00TA241
IN THE HIGH COURT OF JUSTICE
BRISTOL DISTRICT REGISTRY
||Bristol Civil and Family Justice Centre
2 Redcliff Street, Bristol BS1 6GR
B e f o r e :
HHJ PAUL MATTHEWS
sitting as a judge of the High Court
|| Alison Virginia Ashcroft
John Francis Penley
||- and -
||Rupert Jolyon St John Webster
Oliver Wooding (instructed by Clarke Willmott LLP) for the Claimants
The Defendant in person
Hearing date: 21 March 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
HHJ Paul Matthews:
- This is my judgment on an application by the Claimants to extend the life of an extended civil restraint order made against the Defendant on 23 March 2015 by HHJ McCahill QC for another two years. The application is made by notice dated 8 March 2017, supported by the first witness statement of Esther Margaret Woolford dated 8 March 2017, together with one exhibit. The application is opposed by the Defendant, who has made a statement dated 21 March 2017. The application was argued before me on 21 March 2017, by Oliver Wooding of counsel for the Claimants and the Defendant in person.
The context in which the earlier extended civil restraint order was made by HHJ McCahill QC is one of complex family dealings in property followed by a number of pieces of litigation involving the same or similar parties. In order to make this judgment intelligible, I will shortly say something of the family and its members, and the property dealings, and then something about the litigation. Fuller details are set out in the judgment of HHJ Purle QC of 22 May 2013,  EWHC 1316 (Ch). In this judgment I shall mostly use Christian names to distinguish the various members of the Webster family. I intend no disrespect to any of them in doing so.
- Captain Antony Webster and his wife Valerie had four children. There were two sons and two daughters. Valentine was the elder son and Rory was the younger. Virginia (later Ashcroft, the First Claimant) and Antonia (later Sloane) were the two daughters. Valentine married Jennifer, and they had three children, Rupert (the Defendant), Letitia and Arabella. Rupert married Jane, and they have three children, Beatrice, Roselle and Luke.
- In 1950 Captain Webster acquired the property in the village of Ash Priors, Taunton, known as Priory Farm, consisting of some 44 acres including eight cottages. In 1965 two of these cottages were sold to Valerie. She later sold a half share to Rory. In 1987 Captain Webster transferred another three cottages to Valerie. In 1990 part of the estate known as Priory Barn was sold to a company belonging to Valentine.
- Meanwhile, in 1971 Valerie purchased a nearby property known as Monks Walk. She sold most of it to Valentine in 1972, and gave him the rest in 1990. Valentine attempted to develop the Barn, using Monks Walk as security, but ran into financial difficulties. In 1992 the mortgagee took possession of Monks Walk, and sold it.
- In April 1992 Captain Webster transferred the farmhouse and two fields out of the Priory Farm estate to himself and Valerie as tenants in common. Three weeks later, Captain Webster transferred the remaining agricultural land and certain cottages to Valerie. Two days later, Valerie created a discretionary trust of that land and cottages, of which her four children were discretionary objects. This was all part of a tax planning exercise, carried out on the advice of Bevirs solicitors, assisted by the Second Claimant, Mr Penley, the family solicitor (not from Bevirs).
- In December 1992, Valentine became bankrupt. Other members of the family became bankrupt later. In October 1995 Priory Barn was repossessed and sold by the mortgagee. Valentine and Jennifer moved into the farmhouse, The Priory. In February 1996, Captain Webster died, and probate of his will was granted to Virginia and Mr Penley, the Claimants, in May 1996. His will operated on his 50% interest in the farmhouse and two fields, and created a nil rate discretionary trust for the benefit of Valerie and his issue, with a small legacy to Virginia and the residue going to Valerie. She died in August 2007, and the Claimants became personal representatives of her estate also. Valentine had unfortunately died the year before, in September 2006, aged only 64, and his son Rupert, the Defendant, became personal representative of his estate.
The original claim
- After the death of his father, Valentine, in 2006, and of his grandmother in 2007, Rupert, as personal representative of his father's estate, sought to make a claim in proprietary estoppel against his grandparents' estates. The claim was issued in 2009. It was based on various alleged representations or promises made over the years, but apparently starting in the 1970s, by both Captain Webster and his wife Valerie, to the effect that The Priory would come to Valentine.
- This claim was issued primarily against Virginia and Mr Penley (the Claimants in these proceedings), although Jennifer, Rory and Antonia were also joined as defendants. Ultimately it was taken to trial, when Rupert (as claimant) and Virginia and Mr Penley (as defendants) were represented by counsel, and the other defendants appeared in person.
- The claim was dismissed by HHJ Purle QC in a written judgment handed down 22 May 2013. He said, in summary:
"23. … In my judgment, no representation or promise to the effect suggested by Rupert was ever made. Nor, if I am wrong about that, was there detrimental reliance."
- The judge also said this:
"28. … What did emerge very clearly from the evidence, however, was the fact that Valentine held the strong conviction that as the eldest son he was entitled at least morally to control and (ultimately) inherit The Priory as his birthright. That conviction was not, however, shared by other family members, and Valentine knew this. During the course of the tax planning exercise undertaken in 1992, Valentine's conviction was expressly rejected by Valerie at a family meeting in the presence of solicitors (fully minuted) on 25 February 1992. Notably, Valentine did not rely upon any representation or promise at this stage, only a conviction of his prior entitlement as the first born son.
29. That said, there is little doubt that the hope was expressed from time to time, in different ways, especially by Valerie, that Valentine might inherit or live at Ash Priors, or the farmhouse. But there was nothing amounting to a commitment to ensure that any part of Ash Priors, or the farmhouse, or the two fields, would become his. Moreover, after the 1992 tax planning exercise, Mr Penley was very much against the taking any step that might imperil the tax efficiency of the structure he had helped to put in place, and his advice was heeded."
- The Defendant having lost at first instance, and having been refused permission to appeal by the judge, he applied on paper for permission to appeal to the Court of Appeal. On 31 October 2013, Lord Justice Lewison refused permission to appeal. The Defendant sought to renew his application at an oral hearing before Lord Justice Floyd on 13 February 2014. Lord Justice Floyd also refused permission to appeal.
- The Defendant sought to protect his position in the pending litigation by means of entries dated 6 March 2012 in the register of pending land actions, to which he later added two further entries dated 3 September 2013, and then two entries dated 24 February 2014 in the register of land charges to protect claimed substantive rights, all registered against the property in the Land Charges Registry, it being unregistered land. In May 2014, after the original claim had been dismissed and all appeals exhausted, the Claimants applied by notice to vacate those land charges. Sitting then in the Chancery Division of the High Court as a deputy master, I acceded to that application in August 2014, and vacated all six charges.
- The Defendant then brought a new claim (A00TA241) against the Claimants in September 2014 in the County Court at Taunton, seeking possession of a part of the property at Ash Priors, on the basis that he had a right, whether through his mother Jennifer, pursuant to the estate of his father Valentine, as a member of a class of objects under a discretionary trust, or under a statutory tenancy or licence, to occupy that part of the property. Parts of the claim were then struck out as totally without merit by Deputy District Judge Orme, sitting at Taunton. The remainder of the matter was transferred to Bristol, where on 23 March 2015 HHJ McCahill QC struck out the remainder, also as totally without merit.
- The Claimants then brought a claim (B30BS071) against the Defendant in early 2015 in trespass and slander of title. On 23 March 2015 HHJ McCahill QC granted a final injunction against the Defendant, requiring him not to enter the property, not to interfere with or prevent the marketing or sale of it, not to make any entry on the title of the property without the permission of the court, and not to publish or use words to the effect that he had an interest in The Priory or that his permission was required before its disposal or that the registered owners were not freehold owners of the property and/or that the trustees did not have the power to give instructions as to the disposition of the property.
- The Defendant in the meantime brought a new claim (B30BS107) against the Claimants in the Bristol District Registry. This was treated as effectively an application being made by the Defendant to vary the injunction granted in claim number B30BS071. It was struck out by HHJ McCahill QC on 23 March 2015.
The first extended Civil Restraint Order
- As a result of the last three matters, HHJ McCahill QC on his own initiative made an extended civil restraint order against the Defendant, restraining the Defendant until 22 March 2017 from issuing any claim or application against Virginia or Mr Penley (in their capacity as executors of the estate of Valerie and trustees of the will of Captain Webster), except for any personal claim the Defendant might bring in professional negligence as a disappointed beneficiary or otherwise. So, for example, it does not apply to a claim brought by the Defendant against lawyers alleging negligence causing him loss as a disappointed beneficiary. It is however common ground that the present ECRO goes too far, in that it purports to apply to "any courts" rather than being restricted to the High Court and the County Court. Only a judge of the Court of Appeal can make an ECRO applying to "any courts": CPR PD3C, para 3.2(1)(b).
- It is also clear that the order, even when it applies, does not bar access to the courts. Instead, it constitutes a filter through which applications and claims must first pass before they can have any impact on any respondents or defendants: see Nowak v The Nursing and Midwifery Council  EWHC 1932 (QB), , quoted later in this judgment. If the judge to whom the application or claim has been referred considers that it has any prospect of success, it passes through the filter and is thereafter in the same position as an application or claim made by any other litigant.
Events after the first ECRO
- The property itself was sold by the Claimants to a third-party purchaser in October 2015 for £1.125 million. The new owner is not a party to the present litigation or to this application.
- On 14 April 2015, in Claim B30BS071, the Defendant made a written request under CPR Part 18 for further information, this consisted of some 56 questions spread over 12 pages. A cursory examination shows that it covers much the same ground as that covered by the original claim which was dealt with by HH Judge Purle QC.
- Before the extended civil restraint order was made in March 2015, the Defendant had also issued three further claims against the Second Claimant alone, under claim numbers HC14B01306, HC14C01307, and HC14D01309. At the hearing, the Defendant told me he had been advised to bring three separate proceedings. Each claim sought to challenge the valuation of the estate of (respectively) Valentine, Valerie and Captain Webster. After the extended civil restraint order was made, on 11 June 2015 Mr Justice Birss struck out all three claims, recording that each was totally without merit. The judge made a (second) extended civil restraint order against the Defendant. I make clear that the present application to extend the order made by HHJ McCahill QC on 23 March 2015 does not include an application to extend the order made by Mr Justice Birss.
- On 28 September 2015, Lord Justice Lewison on the papers refused permission for the Defendant to appeal against the decision of HHJ McCahill QC of 23 March 2015, recording that the appeal was totally without merit.
- On 14 December 2015 the Defendant applied to set aside the default judgment dated 23 March 2015 in claim B30BS071. He attached a draft defence putting in issue matters which had been dealt with by the original claim dismissed by HH Judge Purle QC. On 13 January 2016 HH Judge Denyer QC ordered that that application fell within the scope of the extended civil restraint order made against the Defendant on 23 March 2015, and declined to give permission for that application to be made. (I note that in a letter dated 10 January 2017 the Defendant referred to the draft defence and the application to set aside the default judgment as matters that remained "still to be heard".)
- On 17 December 2015 Lord Justice Floyd on the papers refused permission for the Defendant to appeal the decision of Mr Justice Birss of 11 June 2015. On 17 November 2016 Lord Justice Patten refused a renewed (oral) application for permission to appeal the decision of Mr Justice Birss. He recorded in his judgment that an appeal would be totally without merit.
- In September and in November 2015 the Defendant issued two new claims, this time against the Lord Chancellor or the Ministry of Justice, claiming a breach of his, or his family's, human rights pursuant to the European Convention on Human Rights, as rendered justiciable in the courts of the United Kingdom by the Human Rights Act 1998. The first such claim was the subject of a Tomlin order made by Mr Justice Snowden on 8 December 2015, and was therefore stayed. The second claim appears never to have been progressed. At all events, no Particulars of Claim have ever been served.
- On 13 May 2016 yet another claim (HC-2016-001499) was issued by the Defendant against the Ministry of Justice. This claim is expressed in the claim form to be
"for the Claimant's family's rights as expressed through claims HC 09C01570, A320132303, HC 14B01306, 07 & 09, A00TA241, B30BS071, B30BS107, A320151181 ("the claims"); the Protection from Eviction Act 1977; the Inheritance Act 1977; sections 12 to 15 of the Trusts of Land and Appointment of Trustees Act 1996; and instructions given trustees that have been informally exercised for over 20 years such that now the first registration of the family home includes the Claimant under the Land Registration Act 2002 ("the Acts"); without application of which are alleged violations of Articles 8, 14 and Protocol 1 Article 1 of the European Convention ("the articles")."
- On 5 October 2016 the Ministry of Justice issued an application for an order that the claim form and particulars of claim be struck out, for it to be recorded that the Claimant's claim was totally without merit, for the imposition of a (third) civil restraint order, and for the Claimant to pay the Defendant's costs. On 17 October 2016 Mrs Justice Rose made an order adjourning this application, for the parties to agree directions and for contact to be made with the Bristol District Registry in order to ascertain whether the judges currently supervising the existing extended civil restraint orders would be content to be named as supervising judges should the further extended civil restraint order sought in the present application be granted.
- A number of costs orders have been made in the original claim against the Defendant which remain outstanding. The Claimants have sought charging orders over the interests of the Defendant under various trusts in order to secure those orders. An interim charging order was made by me in the original claim, then sitting as a chancery master, on 5 January 2017. That order was made final by Deputy Master Nurse on 9 March 2017. A witness statement of the Defendant dated 7 March 2017 in relation to these applications made allegations and claims which mirrored those made in the original claim dismissed by HH Judge Purle QC.
- Finally, there is an issue relating to the Defendant's continued use of The Priory as an address for service for one of the companies which he controls. It appears that the new owner of The Priory had applied to Companies House to remove The Priory as the registered address. Companies House had invited the Defendant's response. The Defendant was apparently concerned that if he responded to Companies House he might breach the terms of the injunction. The attitude of the Claimants was that, although arguably the Defendant was in breach of the injunction, since the property had been sold the Claimants were not directly concerned by this matter. The Defendant prepared a draft letter to Companies House, in which he would object to the new owner's application on the basis that there was a possibility that the Defendant and his company might be authorised to use The Priory for the registered address after the hearing of his claims against the Lord Chancellor.
- On 8 February 2017 the Defendant sent an email to the court, the effect that he was preparing three applications, to vary the injunction to allow him to communicate with Companies House, to appeal the decision of HH Judge Denyer QC, and to rely on claim HC-2016-001499.
- I add that, after the hearing, I received an email dated 23 March 2017 from the Claimants' counsel. This informed me that the Defendant had issued an application in the County Court at Taunton for an order setting aside a statutory demand issued by the First Claimant and served on the Defendant in respect of costs orders in the original claim. The notice of hearing is dated 20 March 2017, which means that the application to set aside must have been issued before the hearing before me on 21 March. The Defendant made no mention of it at that hearing, though there is a reference in his witness statement of 21 March 2017, para 11.2, to applying to set aside a statutory demand, and this may be a reference to that application.
- The Claimants in their email submitted that the application was caught by the terms of the first ECRO. I invited the Defendant's comments on the email. In an email dated 24 March 2017 to the Court, he appeared to challenge the view that the application was so caught, and concluded that
"the ECRO against me ought to be brought to an end without delay. I have already served my time."
Whether an application to set aside a statutory demand falls within the scope of the first ECRO is a matter which was not argued before me at the hearing. However, for reasons which will become apparent, I do not need to resolve this question now, or to take this matter into account in reaching my decision on the continuation of the order, and accordingly I have not done so.
The relevant law
- I turn now to the law relevant to extending the life of an extended civil restraint order. CPR rule 2.3 (1) provides that "civil restraint order" means "an order restraining a party –
(a) from making any further applications in current proceedings (a limited civil restraint order);
(b) from issuing certain claims or making certain applications in specified courts (an extended civil restraint order); or
(c) from issuing any claim or making any application in specified courts (a general civil restraint order)."
Rule 3.11 provides:
"A practice direction may set out –
(a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;
(b) the procedure where a party applies for a civil restraint order against another party; and
(c) the consequences of making a civil restraint order."
Practice Direction 3C to Part 3 of the CPR in paragraph 3.10 provides:
"The court may extend the duration of an extended civil restraint order, if it considers it appropriate to do so, but it must not be extended for a period greater than 2 years on any given occasion."
- In Nowak v The Nursing and Midwifery Council  EWHC 1932 (QB), Mr Justice Leggatt explained the justification for civil restraint orders. He said:
"58. As explained by the Court of Appeal in the leading case of Bhamjee v Forsdick  1 WLR 88, the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or no cost to themselves. Typically such litigants have time on their hands and no means of paying any costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court's resources.
59. It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court's process from abuse, and not to shut out claims or applications which are properly arguable."
- In Noel v Society of Lloyd's  EWHC 360, Mr Justice Eady discussed in some detail the circumstances in which it might be appropriate for the court to extend the duration of an extended civil restraint order. That decision is not reported, and the parties have been unable to procure a transcript to put before me. However, full extracts from the judgment of Mr Justice Eady are to be found in another case which is reported, namely Society of Lloyd's v Noel  1 WLR 4406, a decision of Mr Justice Lewis.
- At paragraph 12 of his judgment, Mr Justice Lewis quotes from paragraphs 23 to 27 of the decision of Mr Justice Eady, as follows:
"23. I think in the context of a proposal to extend the civil restraint order, at the expiry of the period of two years, what the court would need to focus on particularly is evidence which suggests that there is good reason to apprehend vexatiousness and, in particular, persistent vexatiousness, for the future. That might be demonstrated by conduct or by threats, perhaps, but there must be, I would have thought, a reasonable apprehension that vexatious applications or claims will be made once the period expires or, in this case, when the undertaking expires following the court's ruling. That must be evidence based and, as I have indicated, the evidence relied upon here is that to be found in paragraphs 5 to 12 or Mr Demery's witness statement.
24. I have no doubt that the Society of Lloyd's and its representatives have a genuine apprehension or concern that trouble might break out, if I could put it that way, once the protection of the ECRO is removed. That is based on their past experience and on the background of vexatiousness in the past, all those matters which were taken into account by Steel J when he made the order in November 2007.
25. But their apprehension, based on the past, does not seem to me necessarily to make it appropriate to grant an extension of the order at this juncture. There must be something more solid in my judgment. The mere request for documents and information on 2 November would not justify such an apprehension. The mere negative failure to comply with the request for an assurance as to the future does not amount to a threat or solid grounds for an apprehension or fear as to the future.
26. It is said to be irrational on Mrs Noel's part that she turned down the offer that was made to her in November, which was that the outstanding costs order of £16,000 would not be enforced if she were to give such an undertaking. That was such a carrot, it is suggested, that she must have in mind an intention to make further applications or to launch further claims of a vexatious nature.
27. I think that is to infer too much from her limited conduct so far and I feel in all the circumstances, therefore, that the criteria have not been fulfilled to date. I would add, however, if evidence emerges in the future, in particular the near future, that there is an intention to make any vexatious claim, or an application launched, then the matter will be reviewed in the light of that further evidence."
- And, at paragraph 43 of his judgment, Mr Justice Lewis quoted again from paragraph 10 of the decision of Mr Justice Eady:
"10. It seems to me that it would be necessary in such circumstances for Lloyd's to demonstrate why it is now appropriate for a fresh order to be made. There cannot simply be a presumption of continuance. There must be evidence that the criteria are once again fulfilled. Of course, the background is important as background and the degree of persistence, in particular, prior to the original order being made would, no doubt, be a highly relevant factor. So too would the conduct of the relevant person after, the order was made; the extent, for example, to which he/she had sought to get round the order or made unmeritorious applications during its subsistence."
- In a more recent decision of Mr Justice Warby, in The Chief Constable of Avon and Somerset Constabulary v Gray  EWHC 2998 (QB), the judge made two observations which are relevant to the present application:
"7. (2)… Secondly, the threshold requirements in PD 3C 4.1 needs to be satisfied before a GCRO is made. But the test for the grant of an extension is different: it is whether the court "considers it appropriate". This plainly makes sense, as a person who has already been subject to a GCRO will in principle have had no opportunity to issue any TWM claim or application, other than an application for permission to proceed, or to vary or discharge the GCRO.
[ … ]
(4). Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime."
- From these authorities it is clear that, in considering whether it is appropriate to extend the ECRO, I cannot go back to the beginning and ask whether the court would now be justified in imposing a further ECRO. For one thing, that would be to give double credit for the applications or claims held to be "totally without merit" that justified the order in the first place. For another, the filter mechanism means that there are not inherently likely to be many further applications anyway, much less many which are "totally without merit". Third, the test for an extension is simply whether the court considers that it is "appropriate" to do so. It is quite different from the test for the first ECRO.
- On the other hand, in considering whether it is "appropriate", all the circumstances must be taken into account. Here, the Defendant's conduct leading to the ECRO is still relevant, not least as setting the scene: cf Noel v Society of Lloyd's  EWHC 360, -. Normal people do not behave in this way. They eventually accept that they have lost, and move on. For such persons, not subject to an ECRO, the subsequent conduct on its own might be more susceptible of an innocent, non-vexatious explanation. But where an ECRO has properly been made, what comes afterwards is seen through the prism of the earlier conduct. In such a case it is easier to see the likelihood of further vexatious conduct. This is not double-counting, but rather better understanding a person's motivation in acting in a particular way.
- The Claimants submit that during the course of the existing (first) extended Civil Restraint Order the Defendant has persistently issued proceedings which touch upon the same underlying matters that were first determined against him by HH Judge Purle QC, which are without merit, and continue to impose burdens both in time and costs, not only on the Claimants, but also on the system and its users.
- The Claimants further submit that the Defendant is simply waiting for the expiry of the current civil restraint order in order to issue further applications against the Claimants. They say that the Defendant imposes costs on others at little or no cost to himself, and has no means to pay any costs of litigation. There is no real prospect, they say, of any future costs incurred by the Claimants in dealing with or responding to the Defendant's litigation being satisfied. Accordingly, they submit that it is appropriate for the civil restraint order to be extended, and for 2 years on this occasion.
- The Defendant rejects these arguments. He submits that the civil restraint order jurisdiction ought to be exercised sparingly, and says that his conduct is not as severe as has been claimed. He says the complaints are over 18 months old and following an appellate process. He submits that the application is unwarranted and unnecessary. At the hearing he told me that the Solicitors Regulation Authority had said he should go to the Ombudsman. But the letter dated 9 March 2015 from Lord Faulks QC at the Ministry of Justice said instead that he should go to the courts. He invites the Court to dismiss the application.
- For the Defendant, the problem stems from the fact that the implementation of the tax planning exercise in 1992 did not carry into effect what he says was an (oral) agreement between his grandfather Captain Webster and the Second Claimant, Mr Penley. He referred me to a letter written by Mr Penley to the Defendant's grandparents on 24 April 1992 (pages 165-6 of the bundle). He says that, three years later, his grandmother changed her mind and instructed Mr Penley to put the oral agreement in writing. But Mr Penley, it is said, refused.
- However that may be (and of course I make no findings on any of these points), all of this was either part of, or should have been part of, the litigation fought out before HHJ Purle QC, and decided by him in 2013. The Defendant sought to appeal, but two Court of Appeal judges, looking at the matter separately (one on the papers, the other at an oral hearing) and taking into account what he wanted to say, each concluded there was no real prospect of success, and each refused permission. So the Defendant has had his "day in court", his opportunity to prove his case, and an experienced trial judge (reviewed by two more senior judges afterwards) has held that he has failed to do so. In our system, that ought to be the end of the matter. Other people have cases to be heard and decided, too.
- Since then, however, the Defendant has repeatedly sought to go back over all or some of the issues raised and decided in that litigation. He placed two pending land action entries and two land charges on the Land Charges Register in relation to the land, which had to be vacated. He brought two further separate claims against the Claimants, and interfered with the proposed sale of the property to the extent that the Claimants were obliged to bring further proceedings (successfully) to restrain him. These actions led directly to the first ECRO in the present case, that of March 2015. The Defendant also brought the three sets of valuation proceedings against the Second Defendant.
- Since the first ECRO, the Defendant has unsuccessfully tried all avenues of appeal from that and other orders, including those striking out the three sets of valuation proceedings. He has issued the Request for Further Information under CPR Part 18, the application to set aside the default judgment, the three new claims against the Ministry of Justice (to which he has said the Claimants should be joined: see the Clarke Willmott letter of 2 February 2017 (bundle, 34/189)), and has also sought to argue the Companies House address issue. All of these, to a greater or lesser extent, raise questions mirroring or overlapping with those arising in the original claim dismissed by HHJ Purle QC. All of them burden the Claimants, and sometimes others, to some extent. And they take up huge amounts of time and court resources that, frankly, the system can no longer afford. The Defendant has already had far more than his fair share of these, without at any stage having any sufficient merit to his claims.
- At the hearing before me, where his conduct and behaviour since the imposition of the ECRO were considered, the Defendant accepted that he had gone too far in seeking to set aside the default judgment and put in a defence raising issues already decided. He also said that the Companies House issue had been resolved, as he had changed the address for his company to a box number. But, in answer to a question from me, he made clear that he is still complaining about the decision of HHJ Purle QC, and that, if he could get back into possession of the property through the courts, he would do so.
- It is clear from the authorities cited to me that there is no presumption of continuance of an expiring ECRO. There must be evidence that it is "appropriate" to extend its life. I ask myself whether, in the words of Mr Justice Eady, there is "good reason to apprehend … persistent vexatiousness for the future". Mere concern on the part of the Claimants is not enough.
- On the material before me, my appreciation of the present situation is this. The Defendant has made some progress. He now has at least some self-awareness in relation to his own difficulties in moving on from the judgment of HHJ Purle QC. He claims to have resolved the Companies House issue, and accepts he went too far with the default judgment application. But he still believes that the decision of HHJ Purle QC was wrong, and, despite having had more than his share of court resources he is still looking for a way to get round or over it, using the courts to get back into possession of the property if he can. He intends, if permitted, to make further applications in future: see his letter of 10 January 2017 and his email of 8 March 2017 (bundle, 33/177 and 37/226). He persists in an irrational refusal to take "no" for an answer.
- Moreover, so far as I can see, he has no money to pay any costs orders made against him. I was told at the hearing by the Claimants that, in addition to approximately £120,000 of costs orders which are secured against entitlements of the Defendants under family trusts, there are a further £150,000 of costs orders which remain unsecured. The Defendant challenges these figures. He says that about £186,000 of costs are secured and only £47,000 plus interest are unsecured.
- As to the Defendant's financial resources, in his witness statement dated 7 March 2017 in relation to the charging orders made in the original claim, he says
"13. [ … ] My financial position is that legal insurers paid out their entire indemnity fund of £100,000 to solicitors. I then found myself evicted, I say unlawfully and possibly fraud. Local Police told me it was a civil matter requiring a court process, and so I paid out funds to solicitors and barristers to protect my (and my mother's) home and property. Having now forfeited my house, and office, and my small agricultural business, I cannot afford to pay more money to court."
In addition, his marriage has broken down. Sadly, he has nothing more to lose.
- In my judgment, the Defendant's behaviour since the ECRO of March 2015, in the light of everything that has gone before, shows that there remains a clear and serious risk to the Claimants, to third parties such as the new owners of the property, and (importantly) to the administration of public justice, which is simply too great to allow the first ECRO not to be continued.
- I have considered whether it would be safe to extend the ECRO for a short period, for example six months or even one year, so that the restraint can be limited in time as far as possible. I have concluded, however, that that would not be enough. We are now nearly four years on from the original decision of HHJ Purle QC, and, as I say, the Defendant still wants to overturn it if he can. I see no sign that six months' or a year's further lapse of time would cause the risk of vexatious behaviour on his part to diminish sufficiently.
- I will therefore extend the order (but of course limited to the High Court and the County Court) to expire on 22 March 2019.
Copyright Policy |
Donate to BAILII