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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Eady and Mr Justice Roderick Evans)

		Royal Courts of Justice Strand London WC2 Friday 20th July, 2001

1. LORD JUSTICE PILL: These are two applications for permission to appeal made by Miss Christine Hanson. She seeks permission to appeal against a decision of Roderick Evans J given on 17th May 2001 and a decision of Eady J given on 7th June 2001. Roderick Evans J refused an application by the applicant under CPR 23.11(2) to relist a claim for negligence brought by Miss Hanson. Eady J made what is commonly known as a Grepe v Loam order against the applicant with respect to the proceedings in which Roderick Evans J had made his order. Roderick Evans J had adjourned the question of a Grepe v Loam order when he delivered his judgment on 17th May.
2. Before summarising briefly the underlying proceedings in that action, I refer to the circumstances in which I come to deliver judgment. The applicant had appeared before both learned judges I have mentioned by a litigation friend, Mr D Chitolie. The application for permission to appeal against the judgment of Roderick Evans J having been made, it was sought by the applicant to obtain a direction that Mr Chitolie should again appear before this court as a MacKenzie Friend. There has been correspondence on that subject between a representative of the Civil Appeals Office and the applicant. The applicant specifically requested the office not to obtain a direction from the court in advance of the hearing as to whether Mr Chitolie could make submissions on her behalf, but that the application would be made at the hearing itself.
3. A letter dated 13th July 2001 and signed both by applicant and Mr Chitolie has been received in the office. It was submitted that the notification of the listing of the second application (that is the application against the judgment of Eady J) had only been received on 11th July. An adjournment was requested on the ground that the notice was insufficient and that Mr Chitolie has another commitment on 22nd July (that is in two days' time), which involves his flying off Bognor Regis pier in the course of a charity event. It was also said that the application for permission to appeal against Roderick Evans J's judgment had been "contaminated by the introduction of the inadmissible documents". It is suggested that in the court office documents have wrongfully been added to the bundle. Having regard to the nature of the present applications, I see no merit whatever in that complaint. Moreover, it certainly does not provide any ground for granting an adjournment.
4. The letter concludes with this sentence:

"Therefore we humbly request that the court adjourn the 20th July listed double application hearing for the reasons above, in order that the matter can be fully considered fairly and without prejudice."

5. It was also stated in the letter that:

"Both feel that it's pointless attending this irregular listed hearing, although according to CPR permission cannot be refused."

6. Allegations are made against people working in the Civil Appeals Office, which on the material before me I find to be wholly unsubstantiated.
7. Having considered that letter and the bundles which the applicant has submitted to the court, I refused to grant the adjournment. The case was listed for today, one hour having been assigned. In the event neither the applicant nor Mr Chitolie were present when the court sat this morning. I am told that efforts have been made to contact Mr Chitolie, but without success. It is now eight minutes before 4.00 o'clock in the afternoon, the applicant's name has again been called out side the court, the hearing has been properly notified to the applicant and I have decided that I should deal with it upon the basis of the documents submitted, the transcript I have of the judgment of Eady J, together with a file note supplied by solicitors of the judgment of Roderick Evans J on 17th May.
8. In 1988 the applicant bought a flat in Devonshire Terrace at a price of £55,000. It is not necessary for present purposes to go into the subsequent events, save that the applicant never lived in the property because, she says, she was concerned about the absence of any means of escape in the event of fire. She released the property back to the second defendants, the Woolwich Building Society, who sold it for a lesser sum and there is an outstanding claim for the alleged shortfall.
9. In 1994 the applicant issued a writ against solicitors for negligence in not carrying out a search. There was also a claim against the second defendants for allegedly, by surveyors, overvaluing the property. A claim was also made against the London Borough of the City of Westminster for failing to carry out a proper search.
10. It should be noted that on 16th May 2000 the second defendants successfully applied to have the claim against them struck out for showing no reasonable cause of action. On 25th July a consent order was signed, ordering that the case against the third defendants be dismissed. That left a claim against the solicitors practising as Wadham-Smith & Co (a firm). The relevant background us set out in the judgment of Eady J.
11. However, on 18th September the first defendants obtained an order that the amended statement of claim against them be struck out. That order was made by Master Ungley. It appears that while he was giving the judgment the applicant became distressed and left court.
12. At the hearing before Roderick Evans J she sought to have the claim relisted under CPR 23.11(2). That provides:

"(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.

(2) Where-

(a) the applicant or any respondent fails to attend the hearing of an application; and

(b) the court makes an order at the hearing,

the court may, on application or of its own initiative, relist the application."

13. The grounds of the proposed appeal to this court state:

"(1) The 18th September 2000 order of Master Ungley was made unlawfully and must be set aside in accordance with the CPR.

(2) Notice application of the unlawful 18th September 2000 hearing was not issued by the court and is not in the court's file.

(3) The court could not issue the application notice for the 18th September 2000 hearing, because: it's out of time to make an application against the court's own initiative order – 20th April 2000.

(4) The 20th April order is and remains valid and supersedes any order(s) thereafter."

(The 20th April order was made by Master Ungley himself.)
14. It should be added that before the matter came before Roderick Evans J, Blofeld J had on 16th October 2000 refused on paper an application for permission to appeal against the decision of Master Ungley. That application was pursued by way of oral hearing, and on 20th November 2000 Sullivan J refused permission to appeal.
15. By taking those steps the applicant has exhausted her rights to seek to overturn the decision of Master Ungley. I can see no reason why Master Ungley was lacking in jurisdiction to make the order he did, or that it was not an order properly made by him. That, however, is by the way, because the present application for permission to appeal is not directly against the order of Master Ungley, but it is against the decision of Roderick Evans J.
16. Roderick Evans J summarised the facts and dismissed the application under CPR Part 23.11(2). He referred to the case as a "terribly sad case" and stated that he could well understand how the applicant has felt.
17. I see no merit whatever in this application. Roderick Evans J dealt with the matter on a broader basis than he needed to. The application was presumably based on the fact that the applicant was not present in court throughout the hearing before Master Ungley. The applicant has sought to raise broader points. I have referred to some of those.
18. I should add that the applicant submits that Roderick Evans J was poisoned by the defendants and their acting representatives to begin with, and only realised the truth halfway through the hearing. Hence the judge needed to be convinced to grant permission to appeal.
19. In the second bundle which is submitted in relation to the request for permission to appeal against the judgment of Eady J, other allegations are made which I do not propose to incorporate into this judgment. They end with the allegation:

"No wonder the country is in such a sorry state."

20. As I have said, the applicant by going before Sullivan J and having her application considered on paper by Blofeld J had exhausted her remedies in this jurisdiction: Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1, at 7 per Brooke LJ. The applicant made her submissions before Master Ungley and it is not arguable that this is a case where the power conferred in CPR 23.11(2) should be exercised.
21. I do not propose to make a definitive ruling as to whether there is a right to seek permission to appeal to the Court of Appeal against the judgment of Roderick Evans J on the basis of the application made to him. Even if there is such a right to seek permission, then I have no doubt that permission must be refused. It is not arguable that a rehearing before Master Ungley should be ordered by the Court of Appeal and it would not so be ordered. It is neither necessary nor appropriate to deal with the broader points and complaints made in writing by the applicant.
22. I come then to the judgment of Eady J. He made what is commonly known as a Grepe v Loam order. He expressed his conclusion in this way:

"In the light of the circumstances which are set out before me, it seems to me that it is appropriate to make an order in this form and I do so, but I emphasise that it is in no sense an order against the claimant as though she were a vexatious litigant. If she has other claims she is entitled to bring them without any let or hindrance. It is only if she seeks to re-litigate matters which were the subject of this litigation that the order would bite. Then she has to go through the additional step of obtaining permission to do so. I will make the order in the terms sought and I will now deal with the consequences of that."

23. The order is set out at pages 5-7 of the bundle which the applicant has helpfully prepared for the application in relation to the judgment of Eady J. It does expressly refer to the proceedings in the Queen's Bench Division, 3726, and is limited to those proceedings. Eady J has accurately summarised the effect of the order and I agree with his approach in the circumstances. The applicant has exhausted her possible remedies.
24. She has now sought, by means of the application before Roderick Evans J, to reopen the matter in another way. That indicates an approach on her part which, in my judgment, justified Eady J in making the order in the terms it was granted. The judge referred to the recent case in this court of Ebert v Venvil [2000] Ch 484, Lord Woolf MR presiding. The headnote states:

"... the High Court had an inherent jurisdiction to prevent the initiation, without the leave of the court, of civil proceedings which were likely to constitute an abuse of process; that, as part of the High Court's supervisory jurisdiction in relation to the county court, such an order could, in appropriate circumstances, apply to county court as well as High Court proceedings; that the order needed to be sufficiently certain so as to enable the person at whom it was directed to know what he was, and was not, entitled to do; and that, accordingly, since the orders made by the judge met that requirement, leave to appeal would be refused."

25. Eady J was justified in making the order he did. The order is, in my view, in a form appropriate to the circumstances of this case. It is not, in my judgment, arguable that upon an appeal to this court the order would be rendered of no effect. I only repeat what Eady J stated and what is plain from the terms of the order, that it leaves open to the applicant the possibility of applying in writing to a judge of the Queen's Bench Division if she wishes to take further action with respect to the matters in dispute. I am confident that the applicant has understood the meaning and effect of the order which will remain in force.
26. For those reasons, both applications for permission to appeal are refused.
ORDER: Applications for permission to appeal refused. (Order not part of approved judgment)
27. ____________________