Tuesday 18 November 2001
- LORD JUSTICE CHADWICK: These applications have been listed for 9.45 am this morning on the basis that they are urgent. Mr Barnes has received notice of that, as appears from a faxed message which he sent to the court earlier today. It is now five minutes past ten and Mr Barnes has not yet appeared to make his applications. In his fax of this morning he requests an adjournment but, as he says, he does not wish the judge to dismiss the applications in his absence if he is five or ten minutes late. He indicates that he will endeavour to get to the right court by 9.45 am. The hearing has been put back by 20 minutes to accommodate the possiblity that he has been delayed. In the circumstances that Mr Barnes is still not present, I propose to deliver a ruling on the applications which I understand he wishes to make. I do so in the hope of saving further time in this matter.
- These applications arise out of a mortgagee's possession summons issued on behalf of Woolwich Plc on 20 October 1997 in the Bishop's Stortford County Court under reference ZI7 01443. The summons seeks possession of a property known as Hill Top Cottage, Mill Road, Henham, Essex, mortgaged by Mr Barnes under a legal charge dated 18 May 1990. The amount of the mortgage loan then outstanding was £128,000, or thereabouts, and there were arrears of approximately £7,500. On 17 November 1997 Mr Barnes served a reply, in which he disputed the claim in so far as it was based on administration charges and arrears.
- There were then three adjournments before the matter was relisted in the Harlow County Court for hearing on 27 January 1998. On that occasion, Mr Barnes not appearing, a 28-day possession order was made, and the monetary claim was adjourned. On 19 February 1998 the possession order was set aside on the grounds that it had been made in Mr Barnes' absence. Mr Barnes was given an opportunity to file a defence. That he did, on 30 April 1998. His defence, put shortly, was that he had a right of set-off against the Woolwich, arising from its alleged failure to honour an insurance claim in respect of another property. The matter was listed for hearing on 30 November 1998. By that stage, the arrears under the mortgage had reached some £17,000 or more.
- In the meantime, on 27 July 1998, a bankruptcy order was made against Mr Barnes on the petition of Uttlesford District Council. The petition debt has no connection with the claim for possession in these proceedings.
- On 30 December 1998 the defence and counterclaim in these proceedings was struck out and an order for possession against Mr Barnes was made. An appeal against that order was dismissed by Mr Recorder Brennan QC, sitting as a judge of the County Court in Cambridge, on 27 May 1999. Mr Barnes did not attend on that occasion. The following day (28 May) Mr Barnes applied for a stay of that order. That application (to stay execution and to set aside the order of 30 December 1998) came before His Honour Judge Haworth, sitting at Cambridge, on 17 June 1999. The judge heard the matter on its merits and delivered a full and careful judgment, setting out his conclusions. Mr Barnes was represented on that occasion by counsel instructed by solicitors. The judge ordered possession to be given by 17 August 1999. That is now more than two years ago.
- On 13 August 1999, shortly before possession was due to be given, Mr Barnes' solicitors applied for a stay of the possession order. That application was made, I think, under section 36 of the Administration of Justice Act 1970 as extended by section 8 of the Administration of Justice Act 1973. It came before His Honour Judge O'Brien, sitting at the Cambridge County Court, on 10 September 1999. He was persuaded to stay execution of the order for possession on the payment off of arrears at a rate of £118.23 per month, in addition to current payments due under the mortgage. He directed that the matter should be relisted before the Cambridge County Court on 10 March 2000; that is to say, six months from the date of the hearing before him.
- The matter came before the County Court on 10 March 2000. The stay was continued on the same terms until further order. It seems, however, that, although payments of instalments due under the mortgage were maintained out of benefits, further payments in respect of the arrears ceased to be made. Accordingly the suspensive condition imposed on 10 September 1999 and continued on 10 March 2000 fell away. The order made by His Honour Judge Haworth on 17 June 1999 was capable of being enforced.
- On 13 July 2000 Mr Barnes sought permission to appeal against the order for possession that had been made by His Honour Judge Haworth on 17 June 1999. Permission to appeal was refused by this Court (Schiemann LJ) in Mr Barnes' absence. The application to this Court was coupled with applications for permission to appeal in two other matters. Mr Barnes sought to reinstate his applications at a hearing before me on 12 October 2000. Permission to do so was refused.
- On 29 December 2000, Mr Barnes issued five further applications in the county court. Those five applications, together with four more applications which Mr Barnes had issued on 29 January 2001, were dismissed by His Honour Judge O'Brien on 2 February 2001.
- On 2 February 2001 His Honour Judge O'Brien gave a full judgment in which he referred to the history and set out his reasons for making a Grepe v Loam order to the effect that no further applications in the case (that is to say, the case concerning Hill Top) should be made without permission of the court. As I have said, at that stage there was no stay on the possession order which had been made the previous year.
- Permission (required under the Grepe v Loam order made on 2 February 2001) to apply for a stay was made and refused on 6 February 2001. Mr Barnes promptly gave notice of his intention to appeal to the High Court against the judgment of His Honour Judge O'Brien. A stay of execution of the possession order was granted in the High Court by Henriques J pending the hearing of the application for permission to appeal.
- The application for permission to appeal, made in the Queen's Bench Division of the High Court, was adjourned on no fewer than six occasions between 4 May and 16 July 2001. Eventually, on 16 July 2001, the application was adjourned to be heard in the Chancery Division. It came before Jacob J on 3 August 2001. Jacob J refused permission to appeal. He stayed the execution of the warrant for possession for seven days.
- The following day, on 4 August 2001, Mr Barnes made application to the Cambridge County Court for a further stay of the execution of the possession order. That application came before His Honour Judge Sennitt in Cambridge on 20 August 2001. The judge treated the application as an application for permission to make an application for a stay - that being the only application open to Mr Barnes in the light of His Honour Judge O'Brien's order of 2 February 2001 – and refused that permission. But Judge Sennitt was persuaded to stay the execution of the possession order until 11 September 2001 on being told by Mr Barnes that he needed time to obtain and move to rented accommodation, which would be available to him on or after 11 September.
- On 6 September 2001, Mr Barnes made an application to set aside the order of Jacob J and a further application to extend the stay on execution of the warrant pending various appeals which he was proposing to mount. He applied for permission to appeal against the order which Judge Sennitt had made on 20 August 2001. That application was transferred to the Royal Courts of Justice on 7 September.
- I come then to the events of last week. On 10 September 2001, an application for stay pending the hearing of the application for permission to appeal was refused by Patten J. Following the dismissal of the application for a stay of execution by Patten J on Monday 10 September, a further application was made to the same judge. The application had been listed for hearing on Tuesday 11 September, but Mr Barnes did not make the application at court during the day. Rather, he applied to the judge at 9.30 pm on Tuesday evening seeking a stay of the warrant, which was about to be executed. The judge was told that Mr Barnes had an appeal pending against the bankruptcy order. The judge stayed execution of the warrant until Thursday 13 September 2001, when he was to sit as applications judge.
- On Thursday 13 September the judge had three applications before him by Mr Barnes. There was his application for a stay, pending hearing of the application for permission to appeal from Judge Sennitt; an application on notice to the Woolwich to vary or discharge the order of Jacob J; and an application in the bankruptcy proceedings to restrain the execution of the warrant pending an appeal against decisions which had been before Mr Registrar James on paper.
- The judge came to the conclusion that there were no grounds upon which he could properly interfere with the execution of the order for possession. Accordingly he dismissed all of the applications before him. He refused Mr Barnes permission to appeal in the bankruptcy applications. On the other matters, of course, the judge had no power to grant permission to appeal, those being matters which came within section 55 of the Access to Justice Act 1999.
- Mr Barnes made a further application to Patten J.
(The judge conferred with the Associate)
- He applied to this court at about 5.00 pm on Friday 14 September 2001. It could not be dealt with at that hour. Mr Barnes made a further application to Patten J on the afternoon of Sunday 16 September and was granted a further stay of execution.
- His application to this Court was considered on paper yesterday and refused. Mr Barnes requested an oral hearing which was fixed for 9.45 am this morning. It is now 10.25 am. Mr Barnes has just appeared in court, some 40 minutes after the time for which this matter was listed. I will now hear him, if he wishes to say anything to me in the short period of five minutes that I have before this court resumes, in another constitution, to hear a matter which is to occupy its time for the rest of the day.
- Mr Barnes, is there anything you wish to say to me?
THE APPLICANT:I'm grateful. My Lord, have you received my fax----
LORD JUSTICE CHADWICK: I have.
THE APPLICANT: -- sent through to the Listing Office this morning----
LORD JUSTICE CHADWICK: Yes, I have.
THE APPLICANT: -- which indicated that the electricity power failure-----
LORD JUSTICE CHADWICK: I have seen that.
THE APPLICANT: -- last night, which meant that I could do no typing, no faxing, no skeleton argument, no photocopying and no bundle for today?
LORD JUSTICE CHADWICK: No one is asking you to do any of those things. I have a bundle.
THE APPLICANT: Can I ask my Lord which application is it that is before you today, or applications?
LORD JUSTICE CHADWICK: The application which I am concerned with is an application for permission to appeal against the orders made by Patten J on Thursday 13 September.
THE APPLICANT: My Lord, I'm sorry to interrupt. May I ask permission to record, with the leave of the court, what is going on?
LORD JUSTICE CHADWICK: No, you will not have permission to use your tape recorder and you should switch it off now.
THE APPLICANT:It is not on, my Lord. I can prove it is not on.
LORD JUSTICE CHADWICK: You can obtain a tape recording either from the master tapes or from the shorthandwriter in this Court.
THE APPLICANT:Because I did, I was up in the High Court yesterday and I lodged -- -- I have been waiting for the past two weeks because there is two other appeals I have in the High Court which I'm asking for a stay pending those appeals. And I lodged yesterday the appeal against Deputy Master di Mambro's refusal of those and they said that they may or may not be able to put them before your Lordship today. So there is three applications that I have for a stay. Your Lordship has indicated you are only dealing with one of those at the moment.
In the short time that I have I would say merely this, is that I have an appeal against a wrongly-made bankruptcy on, I think it is 18 October. Most of my appeals have been all heard in my absence whilst I was ill. I was made bankrupt whilst I was ill, Miss Judge Hegarty heard the leave to appeal the statutory bar in my absence whilst I was ill. The shop was repossessed whilst I was ill when it was - the court sent it to - the notification of the hearing after the hearing had taken place. My other property was repossessed by Norwich sending me notification of the hearing after it had taken place. The maladministration in this case goes on and all I ask for a is a fair trial for once. The appeal that I have on 18 October against the wrongly-made bankruptcy which has got in there all the - I don't know, has my Lord got the small ring binder?
LORD JUSTICE CHADWICK: Yes, I have.
THE APPLICANT: With all the police in there. Where the police have had to investigate 15 missing applications withheld by this court. It's criminal, my Lord.
LORD JUSTICE CHADWICK: Mr Barnes, if you want to use the very short time that is available to you to any purpose, you had better address the actual application that I am dealing with.
THE APPLICANT: The application you are dealing with does deal with that. That's the whole point. This appeal on 18 October will be rendered useless if I do not get the stay now. I need to keep my position stable until the outcome of that appeal is known. It is only a matter of five weeks away. There is no prejudice to the Woolwich. The property is worth £400,000. The mortgage I understand with the legal charge is 150, in the region of.
LORD JUSTICE CHADWICK: Mr Barnes, have you had a copy of the direction I gave when looking at this application on paper yesterday?
THE APPLICANT: No, because the fax is an e-fax. It goes to the States, and they e-mail it.
LORD JUSTICE CHADWICK: Let me tell you what I said yesterday, when I dealt with this matter on paper.
Your application for permission to appeal is an application which falls within section 55(1) of the Access to Justice Act 1999. In those circumstances you cannot be granted leave to appeal to this court unless the court is satisfied either that there is some important point of principle or practice raised by the appeal, or that there is some other compelling reason why the court should hear the appeal.
If I am to grant you permission to appeal I have to be satisfied of one or other of those things. On the papers I have seen (and which, if you had taken the trouble to turn up at the time when this application was listed, you would have heard me recite) I am not satisfied of either of those matters.
THE APPLICANT: On those points, my Lord, number 1 I passed a message to the usher. There was an accident on the M11 which I was held in a queue. I phoned the court that I am definitely coming and I'm definitely turning up.
With regards to the compelling reason, I asked Mr Justice Patten to adjourn because the trustee was telling lies and has not accounted to the court. They previously sent a letter to the court saying that it is highly unlikely that there will be any money left. They didn't say they will and they didn't say they won't. So I then, when I asked for the stay afterwards to Mr Justice Patten, said "Hold on a minute, on the Friday, the day afterwards, was a hearing in Harlow County Court regarding another property against me which is worth £160,0000, of which they are asking £67,000 for the mortgage." There is plenty of equity there. To say that when that property is sold there is no realistic prospect of success of Mr Barnes paying off £29,000 which the Woolwich are claiming----
LORD JUSTICE CHADWICK: I have indicated to you the matters that I have to consider.
THE APPLICANT: The matters----
LORD JUSTICE CHADWICK: I am not prepared to let you waste further time.
THE APPLICANT: My Lord, I -- it's not a question----
LORD JUSTICE CHADWICK: There are other matters to be heard today.
THE APPLICANT: What about my----
LORD JUSTICE CHADWICK: You have had your opportunity to appear.
THE APPLICANT: Well, my Lord-----
LORD JUSTICE CHADWICK: I propose to dismiss your applications for permission to appeal against the orders made by Patten J on 13 September; and I propose further to order that no application is to be set down by this Court in relation to your litigation in respect of Hill Top Cottage without the written permission of a single Lord Justice.
THE APPLICANT: My Lord, I need notice of that. You have not given me notice to respond to that. It is bad enough not being able to respond---- Well, my Lord, can I address you on the point of the bailiff coming in, then, for repossessing the property?
LORD JUSTICE CHADWICK: No, you cannot address me any further, Mr Barnes. Had you chosen to turn up at 9.45, you would have had the opportunity.
THE APPLICANT: My Lord, that makes a binding---- This is ridiculous, my Lord. Where -- is this a fair trial? It is a fix.
(The court adjourned)