England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
(Lord Justice Keene, His Honour Judge Krikler and Mr Recorder Rayner James)

		Royal Courts of Justice Strand London WC2 Wednesday, 4th July 2001

Wednesday, 4th July 2001

1. LORD JUSTICE ROBERT WALKER: There are before the court three applications by Mr Richard Noueiri (on whose behalf we have been addressed by Mr Anthony Alexander).
2. Two of the applications were made on 25th June last, that is the Monday of last week. One of these is an application for a stay of execution of a possession order made against Mr Noueiri in proceedings brought against him in the Willesden County Court by a mortgage lender, Paragon Finance Plc ("Paragon"). The warrant of possession relates to leasehold residential premises at Flat 2, 13 James Avenue, London NW2, which is Mr Noueiri's home.
3. The other application made on 25th June is for permission to appeal from an order of Keene LJ made in open court on 20th June last, striking out, under Order 52 Rule 9 of the Civil Procedure Rules, a notice of appeal from an order of Hallett J made on 15th January last. This application also seeks permission to adduce further evidence and a stay.
4. The third and most recent application, made in the same proceedings in the Willesden County Court, is for permission to appeal from an order of Mr Recorder Rayner James made in that court on 27th June last, dismissing Mr Noueiri's application for an extension of a temporary stay of execution which the Recorder had granted on 25th June. Again, this application also seeks permission to adduce further evidence and a stay.
5. This matter has a long history beginning with a mortgage loan of over £90,000 made in 1989 to Mr Noueiri by Paragon (then, I think, either named or trading as National Home Loans). But for present purposes it is not necessary to go back more than a year. It should be said at the outset of recounting the facts that Mr Noueiri is now, most regrettably, seriously ill and it is impossible not to feel sympathy with his position.
6. His position is that he is facing imminent eviction because on 5th January last His Honour Judge Krikler, sitting at Willesden County Court, dismissed Mr Noueiri's appeal from District Judge Dabezies, who had on 24th November 2000 refused to set aside a possession order and a warrant of possession. The District Judge also ordered that no further application should be made, without the permission of the court, unless it was accompanied by a payment into court of the sum of £30,000. Judge Krikler considered but dismissed an argument that Mr Noueiri would soon be able to pay off Paragon by the proceeds of sale of a property in Beruit, Lebanon, and a further argument that the mortgage was an extortionate credit transaction.
7. Mr Noueiri, or Mr Alexander on his behalf (and I shall have to come back to Mr Alexander's position in this matter), wished to make a further appeal. His first step was to seek permission to appeal in the Queen's Bench Division of the High Court. That was a mistake since Mr Alexander was (on Mr Noueiri's behalf) seeking to make a second appeal and permission to appeal for a second appeal can be granted only by this court, and then only in limited circumstances: that is the effect of section 55 of the Access to Justice Act 1999. On 15th January 2001 Hallett J correctly struck out the notice of appeal as misconceived.
8. Mr Alexander, on behalf of Mr Noueiri, then took the correct course and applied for permission to appeal from this court. That application was heard in open court by Keene LJ on 24th April 2001. Keene LJ refused permission to appeal. At the end of his judgment he said:

"Putting all these matters together and bearing in mind the points of law which were raised originally before the district judge and rejected by him and rejected again by the county court judge, there seems to me to be no important point of principle or practice which is raised in this appeal or any other compelling reason for the Court of Appeal to hear it. I would go so far as to say that indeed I can see no realistic prospect of success for this appeal from the decision of His Honour Judge Krikler. In those circumstances this application for permission and the associated applications must be dismissed."

9. That should have been the end of the road, for reasons which I shall come to. But on 14th May 2001 Mr Alexander (on behalf of Mr Noueiri) filed at the Civil Appeals Office an application for permission to appeal from the order of Hallett J striking out the misconceived notice of appeal to a judge of the Queen's Bench Division.
10. That application was listed before Keene LJ and was heard by him in open court on 20th June. As I have said, he struck out the application under Order 52 Rule 9 of the Civil Procedure Rules, a summary course which is to be taken only for a compelling reason. Keene LJ found that there was a compelling reason. He said on that occasion (towards the end of his judgment):

"Apart from anything else, Hallett J's decision was entirely correct. She had no jurisdiction to entertain that application. No appeal against her order has any prospect of success whatsoever. Moreover, this is, so far as the merits of any appeal are concerned, a matter which has been determined by this court. This is a futile application which has no prospect of success whatsoever."

11. Mr Alexander takes the view that that decision of Keene LJ, although made in open court, is still liable to be called in question before the full court. On the strength of that he obtained a stay of execution from Mr Recorder Rayner James at Willesden County Court on 25th June. However, on 27th June, at a further hearing on notice, the Recorder declined to continue the stay. That is the subject matter of the third application which I have mentioned.
12. In these circumstances, the first and primary issue which we have to consider is whether this court has any power or jurisdiction to hear an appeal from, or to review, Keene LJ's decision of 20th June 2001. Under the old procedure a distinction was drawn (by Order 59 rule 14(12) of the Rules of the Supreme Court) between the determination by a single Lord Justice of an application for permission to appeal and any other determination by a single Lord Justice (for instance of an application for security for costs). That distinction drawn in the Rules of the Supreme Court reflected a provision of the primary legislation then in force, that is section 54(6) of the Supreme Court Act 1981.
13. There has, as I shall explain, been a significant change in procedure in this respect and it is possible that Mr Alexander has recollections of the position under the old procedure. Section 54(6) has been repealed by the Access to Justice Act 1999 as part of far-reaching changes both in the requirement for permission to appeal and in the powers now exercisable by a single Lord Justice. The requirement for permission to appeal is now covered by section 54(4) and section 55 of the Access to Justice Act. As regards the powers of the single Lord Justice, the essential provisions are now as follows.
14. Section 54 of the Supreme Court Act 1981 as amended by the Access to Justice Act 1999 provides in subsections (1) to (4) as follows:

"(1) This section relates to the civil division of the Court of Appeal; and in this section `court', except where the context otherwise requires, means a court of that division.

(2) Subject as follows, a court shall be duly constituted for the purpose of exercising any of its jurisdiction if it consists of one or more judges.

(3) The Master of the Rolls may, with the concurrence of the Lord Chancellor, give (or vary or revoke) directions about the minimum number of judges of which a court must consist if it is to be duly constituted for the purpose of any description of proceedings.

(4) The Master of the Rolls, or any Lord Justice of Appeal designated a him, may (subject to any directions under subsection (3)) determine the number of judges of which a court is to consist for the purpose of any particular proceedings."

15. No directions have so far been given by the Master of the Rolls, with the concurrence of the Lord Chancellor, under subsection (3). The consequence is that, if any type of application is listed (under the authority of the Master of the Rolls or a supervising Lord Justice) before a single Lord Justice, that Lord Justice is for all relevant purposes a court of the Civil Division of the Court of Appeal. That is consonant with Order 52, rule 16(6) of the Civil Procedure Rules which provides:

"At the request of a party a hearing will be held to reconsider a decision of

(a)a single judge, or

(b) a court officer made without a hearing."

16. Those last four words are very important. These changes have simplified and, to my mind, have rationalised the old procedure.
17. It follows, in my judgment, that this court has no power to hear an appeal from, or to review or revisit, Keene LJ's order made on 20th June last. Mr Alexander suggested that it was a matter which could be done as a matter of inherent jurisdiction. However, the Court of Appeal is, as has repeatedly been said, a court governed entirely by statute and its jurisdiction is statutory. It appears to me that all three applications before us, together with their ancillary applications, are attempts to prolong litigation which effectively came to an end on 24th April last when Keene LJ refused permission to appeal from His Honour Judge Krikler. I would therefore dismiss all three applications and all the ancillary applications.
18. I must, however, add something about the position in this litigation of Mr Alexander. He has in the past been an experienced litigant in person. On 15th May last he was made subject to a restraining order pronounced by this court (in the persons of Schiemann, Judge and Chadwick LJJ). Such an order is sometimes called a Grepe v Loam order (see Grepe v Loam [1887] 37 Ch D 168; also Ebert v Venvil [2000] Ch 484). Such an order prevents a litigant in person from making applications to the court, either in particular specified proceedings or in connection with any proceedings relating to a particular specified subject matter, without the leave of the court. The purpose of the proceedings is to prevent those involved on the other side of the litigation from being harassed by numerous unmeritorious applications. Mr Alexander is also an undischarged bankrupt. He has told the court that he was made subject to a bankruptcy order on 24th February 2000. He has told us that he is challenging it in various ways. The fact is, however, that that is his present position.
19. In spite of those matters, Mr Alexander has in this and other cases sought permission, and has so far on a number of occasions obtained permission, to act as a lay representative for other litigants in person. I refer in particular to an occasion on the 1st December 2000 when Peter Gibson LJ said, when giving judgment in a case called Mensah v Islington Council and East Sussex County Council in which Mr Alexander had been permitted, with considerable reluctance on the part of this court, to address it:

"In accordance with the overriding objective of the CPR and to avoid the waste of today's hearing, attended as this court had earlier directed, by counsel for the defendants, we took the exceptional course in this highly unsatisfactory situation of allowing Mr Alexander to speak for Mr Mensah.

But I must make it clear that this should not be taken as creating any precedent as to how those who have no right of audience can act as advocates for litigants in person. Anyone who aspires to be an advocate should obtain the requisite qualifications, and the court should be very slow to permit those who are allowed to be present in court as Mackenzie friends to act as advocates. That is not the proper function of a Mackenzie friend. The position in law was recently restated by this court in R v Bow County Court ex parte Pelling [1999] 1 WLR 1807. I repeat and endorse the warning given by Lord Woolf MR at page 1825 that if a person chooses to appear regularly as a Mackenzie friend and uses the litigant as a mere puppet, such behaviour could provide a firm foundation for a judge not wishing him to be present as a Mackenzie friend."

20. Since the time when Lord Justice Peter Gibson gave that warning Mr Alexander has been made subject to a Grepe v Loam order and he has, on behalf of Mr Noueiri, made the misconceived and hopeless applications which have been before the court today. It appears to me that there is grave doubt as to whether Mr Alexander is a proper person to be allowed to act as a Mackenzie friend or lay representative on behalf of any other litigant in person.
21. However, Mr Alexander is entitled to have the opportunity of considering this matter and of preparing such submissions as he may wish to make to the court before any order is made against him. This court (in a different constitution) is to hear several matters connected with the appeal process and with Part 52 of the CPR on Tuesday 31st July next. If my Lord agrees, I would propose to adjourn to that constitution, sitting on that date, the question whether some order should be made, and if so in what terms, restricting Mr Alexander's activities in preparing and lodging applications and other papers and in appearing as a lay representative, or in any other capacity as an advocate, for or on behalf of other litigants in person. Mr Alexander should understand that this is a matter of concern not only to this constitution of the court but to the Civil Appeals Office generally, and it may be that her Majesty's Attorney General will be asked to instruct counsel to assist the court on that occasion.
22. LORD JUSTICE TUCKEY: I agree with all that my Lord has said, and that the matter to which my Lord has referred should come back before this court on 31st July.
Order: Application dismissed. (Order does not form part of approved judgment)