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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> London Borough of Camden Council & Anor v Saint Benedict's Land Trust Ltd [2019] EWHC 3576 (Ch) (20 December 2019) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2019/3576.html Cite as: [2019] EWHC 3576 (Ch) |
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Appeal No. CH-2019-000073 |
BUSINESS AND PROPERTY COURTS IN MANCHESTER
INSOLVENCY AND COMPANIES LIST (ChD)
On appeal from the Order of District Judge Obodai dated 22 February 2019
IN THE MATTER OF SAINT BENEDICT'S LAND TRUST LIMITED
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Sitting at the Royal Courts of Justice Rolls Building, London EC4A 1NL |
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B e f o r e :
(VICE-CHANCELLOR OF THE COUNTY PALATINE OF LANCASTER)
____________________
(1) LONDON BOROUGH OF CAMDEN COUNCIL (2) PRESTON CITY COUNCIL |
Creditors / Respondents |
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- and – |
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SAINT BENEDICT'S LAND TRUST LIMITED |
Debtor/ Appellant |
____________________
(solely in relation to an application to adjourn the hearing)
Tom Gosling (instructed by Greenhalgh Kerr Solicitors Ltd) for the Respondents
Hearing date: 18 December 2019
____________________
Crown Copyright ©
MR JUSTICE SNOWDEN :
The Factual Background to the Proceedings
"…it is very likely that the court will make such an order if [SBLT] is deemed to have made any further applications which are totally without merit."
"However, if any further meritless applications are made by [SBLT] to any court, this order can be prayed in aid of [a civil restraint] order."
"It is consistent with the overriding objective and in the interest of the efficient and fair administration of justice for the Appellant's application for permission to appeal to be heard and determined at the same hearing immediately prior to the Respondents' application for a civil restraint order. If and in so far as the outcome of the application for permission to appeal may have a bearing on the Respondents' application, the court will be in a position to take account of it. Further, there appears to be no good reason for the application for permission to appeal (and, if permission is granted) for the appeal itself to be dealt with in London, when the matter in respect of which the appeal is brought has been proceeding in Manchester."
"The order of Mr. Justice Mann refusing to vary or discharge the order of Mr. Justice Barling was fully reasoned and well within the scope of the reasonable exercise of his case management powers. In particular, for the reasons set out in the last paragraph of Mr. Justice Barling's reasons for his order of 12 June 2019, it is plainly appropriate that the application for permission to appeal and the consideration of whether to make a Civil Restraint Order should take place at the same hearing in Manchester which is where the underlying winding-up proceedings were heard and the order of District Judge Obodai was made."
"This application for permission to appeal is one of a number of meritless and abusive attempts by the Appellant to derail or at least delay the hearing of its application for permission to appeal, and if permission is granted the appeal … and consideration of whether a civil restraint order should be made against the Appellant…"
"It remains for me to deal with questions of the costs of the applications for permission to appeal and the issue of whether to make a civil restraint order against SBLT. I shall do so at an adjourned hearing on 18 December 2019 at which I will also deal with any other consequential matters. I shall extend any relevant time periods until after that hearing."
The Hearing on 18 December 2019
"1. What is injustice?
2. Whether a local authority's winding up petition for the proceeds of crime is ultra vires?
3. Whether totally without merit findings and civil restraint orders are unlawful?"
Attempt to adjourn the hearing on 18 December 2019
"It seems there has been a terrible mix up on instructions being finalised and Mr. Wolman was not aware that he was also instructed to deal with requesting,
1. Detailed assessment of costs
2. Permission to appeal to the Supreme Court
3. Why it is not appropriate to make a civil restraint order against the charity as all the matters that are totally without merit are either historic between Camden and the charity or are in the attached document of Matters Outstanding on appeal or review and to make a restraint order would be to deprive the charity access to the courts to defendant itself and its benefices [sic.]"
"MATTERS OUTSTANDING BETWEEN SAINT BENEDICT'S LAND TRUST LTD AND CAMDEN COUNCIL
1. CO.4788.2019 - Judicial Review Claim Saint Benedict's Land Trust Ltd v Highbury Magistrates - Camden Council & SoS Justice and SoS Housing. Judicial review claim filed on 28 November 2019 - refusal of Highbury to issue applications filed 15 October 2018 to set aside liability orders.
2. Investigatory Powers Tribunal - Human Rights Claim - Saint Benedict's Land Trust Ltd (and its trustees and beneficiaries) v The London Borough of Camden - a claim has been brought for breach of Regulation Investigatory Powers Act 2000 – trespass by rating officers Mr Quick and Mr Drennan – criminal matters.
3. CO/1156/2018 - Saint Benedicts Land Trust Ltd v Preston Magistrates Court Mr Justice Nicklin (TWM) – reopen closed case on new evidence from expert rating witness.
4. Claim Form & PoC - Trespass and Damage Saint Benedicts Land Trust Ltd v - Camden Council – Central London County Court – filed 13 December 2019.
5. C1/2019/0110 - 2019/PI/11650- 28 August 2019 application to set aside Hickenbottom LJ decision 12 August 2019 (TWM) and to consider reopening Patten LJ 8 February 2019 (TWM) on Patel v Mussa [2015] EWCA Civ 434 - refiled 16 December 2019.
6. A2/2019/2739 - 2019/P1/12386 - Arnold LJ - 28 November 2019 - reconsideration request 17 December 2019."
"Dear Judge:
SBLT: application for a civil restraint order
I understand that you have requested me to attend court this morning to explain why my colleague Mr Goss is requesting an adjournment on grounds of a mix-up over instructions.
I apologise profusely and sincerely. But I am dressed in a wholly inappropriate way for attendance at court as counsel and I am having to deal with the urgent affairs of another client who is facing the threat of an ex parte application to restrain him from presenting a winding-up petition.
As far as the matter that I understand is before you this morning. I can say the following for what it is worth, and recognising that SBLT may well take a different view. I believe that this is simply a case of poor administration and management on the part of SBLT, specifically its failure to get its ducks lined up for the purpose of giving me any, let alone any proper, instructions or making any arrangements to negotiate, agree and pay fees.
From all the emails I have now seen, I can confidently say, recognising my duty not to mislead the court, that this is not a case in which the applicant for an adjournment has made a conscious or cynical attempt to de-rail a hearing for its own purposes."
Permission to appeal
Civil Restraint
"An extended civil restraint order may be made … where a party has persistently issued claims or made applications which are totally without merit."
The effect of an extended civil restraint order is set out in CPR 3CPD paragraph 3.2, which so far as relevant provides,
"Unless the court otherwise orders, where the court makes an extended civil restraint order, the party against whom the order is made –
(1) will be restrained from issuing claims or making applications in –
…(b) the High Court or the County Court if the order has been made by a judge of the High Court…
concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order"
"A general civil restraint order may be made … where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate."
The effect of a general civil restraint order is set out in CPR 3CPD paragraph 4.2, which so far as relevant provides,
"Unless the court otherwise orders, where the court makes a general civil restraint order, the party against whom the order is made –
(1) will be restrained from issuing any claim or making any application in –
… (b) the High Court or the County Court if the order has been made by a judge of the High Court; …
without first obtaining the permission of a judge identified in the order."
"[58] As explained by the Court of Appeal in the leading case of Bhamjee v Forsdick [2004] 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 the 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."
i) whether the litigant has persistently issued claims or made applications which are totally without merit;
ii) whether an objective assessment of the risk which the litigant poses demonstrates that he will, if unrestrained, issue further claims or make further applications which are an abuse of the court's process; and
iii) what order, if any, it is just and proportionate to make to address the risk identified?
"…although at least three claims or applications are the minimum required for the making of an ECRO, the question remains whether the party concerned is acting "persistently". That will require an evaluation of the party's overall conduct. It may be easier to conclude that a party is persistently issuing claims or applications which are totally without merit if it seeks repeatedly to re-litigate issues which have been decided than if there are three or more unrelated applications many years apart. The latter situation would not necessarily constitute persistence."
"69. The fact that the litigant has repeatedly issued claims or made applications which are totally without merit will itself almost inevitably demonstrate the existence of [a risk of further such claims or applications]. But in considering the extent of the risk it may also be relevant to consider other factors, such as any statements of the litigant's future intentions, other aspects of the litigant's conduct and whether the circumstances which have generated the hopeless claims or applications are continuing or likely to continue.
70. The third question which the court needs to ask is what order, if any, it is just to make to address the risk identified. As I have indicated, because a civil restraint order represents a restriction on the right of access to the courts, any such order should be no wider than is necessary and proportionate to the aim of protecting the court's process from abuse. In accordance with this principle, the court should therefore approach this question by asking "what is the least restrictive form of order shown to be required"."
Costs