England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE NEUBERGER)

		Royal Courts of Justice Strand London WC2
		Friday, 5th October 2001

Friday, 5th October 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Robert Hurst and his wife, Mrs Ann Hurst, for permission to appeal against an order made by Neuberger J on 24 September 2000, dismissing their application for a stay of execution of an order for possession made in respect of their property, 73 South Way, London NW11. The application is made by Mr Hurst in person. Mrs Hurst is also here and has added some submissions of her own. The prospective respondent to the appeal, Mr Nicholas Treppass, is also present by Mr Stephen Wilson of counsel, albeit that there was no direction for an inter-partes hearing. In the event, I did not find it necessary to call upon Mr Wilson to address me. He has, however, submitted a written skeleton argument which Mr Hurst has seen and on which Mr Hurst has made submissions.
2. There is a long history to this application. The story begins in 1989 when Mr Hurst and some 19 other partners, including Mr Treppass, the claimant in the action, entered into a solicitors' partnership in the firm name of Malkin Janners. In January 1992 Mr Hurst commenced a partnership action joining his copartners, including Mr Treppass. The case eventually went to the House of Lords, but Mr Hurst was unsuccessful at all levels, that is to say at first instance, in the Court of Appeal and in the House of Lords.
3. Following the trial at first instance before Carnwath J the judge made an order for costs in favour of Mr Treppass against Mr Hurst. The costs were subsequently certified in a sum of approximately £27,500. Mr Hurst applied for a stay of the costs order. This was refused, however, on an undertaking offered on behalf of Mr Treppass not to enforce his costs order otherwise than by way of a charging order. In 1995 Mr Treppass obtained a charging order absolute over Mr Hurst's beneficial interest in the property and subsequently further costs orders were made in his favour against Mr Hurst. Numerous applications by Mr Hurst followed in which he sought to dispute the position between him and Mr Treppass.
4. On 24 May 1997 Master Dyson ordered the sale of the property, giving conduct of the sale to Mr Treppass. On 31 March 2000 the House of Lords dismissed Mr Hurst's appeal against the decision of the Court of Appeal affirming the decision of Carnwath J at first instance.
5. In April 2000, on the application of Mr Treppass in his capacity as chargee under the charging order, Ferris J made an order for possession of the property within 14 days after notification of exchange of contracts. The subsequent history of the matter and of numerous further applications by Mr Hurst is set out in detail in a judgment of Lloyd J delivered on 18 January 2001 which led to his order of that date. I should briefly refer to the terms of that order. By his order Lloyd J ordered that:

"Any current and all future applications by the Defendants in these proceedings [that is a reference to Mr and Mrs Hurst] or by the first Defendant herein (as Claimant) against the Claimant herein (as a Defendant) [he then gives the short title of the partnership action] be stayed unless and until the following orders for costs are satisfied."

6. Then five orders for costs are set out. In paragraph 3 of his order, the judge ordered as follows:

"The Court finding that the Claimant is not a litigant in person within the meaning of Part 48 of the Civil Procedure Rules in relation to the said applications and the Orders referred to in paragraph 1(3) and 1(4) hereof, the Defendants do pay the Claimant's costs of the said applications summarily assessed..."

he then gives the figure.

7. On 25 September 2000 Master Bowles ordered that possession of the property be given within 28 days.
8. On 15 March 2001 a Deed of Settlement was entered into between Mr Treppass and Mr and Mrs Hurst which was expressed to be in full and final settlement of all disputes between them. By that Deed of Settlement Mr Hurst agreed (in summary) not to take any further steps in the proceedings whether by way of applications or appeals or otherwise howsoever, and Mr and Mrs Hurst agreed that the sum owed to Mr Treppass was £74,000 and that they would forthwith instruct Godfrey & Barr Estate Agents to sell the property for the best price obtainable in excess of £700,000 as soon as practicable, and in any event within six months (that is to say by 15 September 2001). For his part Mr Treppass agreed, provided that Mr and Mrs Hurst complied with their obligations, not for a period of six months to take any action to instruct to sheriff to execute a writ of possession.
9. On 12 April 2001 a bankruptcy order was made against Mr Hurst. The trustee in bankruptcy has not yet been appointed but I understand will be appointed within the next few days. On 8 May 2001 a costs certificate was issued by the House of Lords in respect of Mr Treppass' costs of Mr Hurst's unsuccessful appeal to the House of Lords, which Mr Hurst was ordered to pay.
10. In July 2001 Master Bowles stayed the possession order by consent on (it appears) Mr Hurst's assurances that the property would shortly be sold. In September 2001 Mr Hurst again applied to Master Bowles for a stay of the possession order but Master Bowles refused a stay.
11. The latest episode in this saga of litigation was an application by Mr Hurst to Neuberger J on 24 September 2000 seeking a stay of the possession order made by Master Bowles. It is against the judge's dismissal of that application that Mr Hurst now seeks permission to appeal. Before Mr Neuberger J Mr Hurst contended, among other things, that the costs order which was secured by the charging order was arguably defective in that it may have been obtained by fraud or deception. In support of this contention Mr Hurst relied upon a cheque for £3,929.88 which had been sent by the House of Lords' Taxing Clerk out of funds lodged by Mr Hurst as security for costs of his unsuccessful appeal to the House of Lords to Mr Trepass' home address at Mr Treppass's request. Mr Hurst learnt, he says, of this only on 12 July 2001. In paragraph 26 of his witness statement Mr Hurst says this:

"Mr Treppass's conduct raises my suspicion as to the validity of his representation to the House of Lords to the effect that he was obliged to indemnify Howard Kennedy for the costs incurred by him in the litigation. As a consequence of that representation, he was awarded an hourly rate of £195 instead of £9.25."

12. In paragraph 30 of his witness statement Mr Hurst says:

"Mr Treppass's conduct in relation to the House of Lords' cheque raises doubts as to the credibility of his representations [in] various courts which I would like to investigate in conjunction with my Trustee in Bankruptcy."

13. Mr Hurst asserts that he and Mrs Hurst signed the Deed of Settlement on the footing that the costs orders had been validly and honestly obtained. They now wish, he tells me, to discuss with the trustee in bankruptcy how the Deed of Settlement might be set aside, and how the matter ought to proceed with a view to challenging the order for costs upon the basis of which the charging order was originally made; hence the application for Neuberger J for a further stay and hence this application.
14. There is, it seems, no transcript as yet available of the judgment delivered by Neuberger J on 24 September 2001, but there is available a full attendance note made by a Mr Mark Presland, a representative of Mr Treppass' solicitors, of the hearing and of the judgment. Mr Hurst has been given an opportunity to consider this attendance note and he accepts that, although it is not a verbatim transcript of the judgment, it is substantially correct. I accordingly will treat the note as being a substantially correct record of Neuberger J's judgment. I read an extract from the attendance note which recounts the judge's treatment of the merits of the case. The attendance note reads in this respect as follows:

"As to the merits of the case, the question of whether Mr Treppass acted as a litigant in person was considered by Lloyd J, and he decided that Mr Treppass was not a litigant in person. Mr Hurst's argument is based on improper dealings by Mr Treppass and it is open to Mr Hurst to bring forth facts made available since Mr Justice Lloyd's Order in support of that argument. The alleged dishonesty it based on, firstly the fact that Mr Treppass asked the House of Lords to pay his costs by a cheque made to him personally, to be sent to his home address, and secondly Mr Newey's letter to Mr Hurst for 23 July 2001.

On the first point it is clear from the tax of costs breakdown of the House of Lords that Mr Treppass acted - it says -"from the tax of costs breakdown of the House of Lords that Mr Treppass acted as a litigant in person formerly then subsequently not as a litigant in person and at the time the CPR permitted that. Of the proximately £4,000 attributable to Mr Treppass half were duly his costs and rest was paid to Howard Kennedy by Mr Treppass. If assuming Mr Treppass' fraud, and I do not wish the record to reflect that I am in any way alleging any fraud on the part of Mr Treppass, all that shows is that Mr Treppass defrauded Howard Kennedy but it doesn't affect the present matter.

On Mr Hurst's second point, regarding Mr Newey's letter, understandably Mr Newey wanted to keep his correspondence with Mr Hurst short. The words relied on by Mr Hurst actually mean, that there was no agreement between Mr Treppass and Mr Newey personally, not as Mr Hurst contends, between Mr Treppass and Howard Kennedy. This is supported by the next part of the sentence where Mr Newey says,'we expect the appropriate invoice to be issued and discharged'. That is to say Mr Newey makes a distinction between 'we' being Howard Kennedy, and 'myself' being Mr Newey.

Notwithstanding that, Mr Hurst has still not upset the Deed of Settlement which resulted in the Charge against their house; nothing about Mr Treppass being a litigant in person affects the Deed of Settlement. Even if that were the case, only one Costs Order would be affected as there are various other Costs Orders not affected by Mr Treppass being a litigant in person, and they have all led to the Charging Order.

Mr Hurst argued that Howard Kennedy had been secretive regarding negotiations with previous partners. However, even if there had been dishonesty it does not affect the present case.

Mr Hurst has become totally obsessed in a totally unreasonable way. I am not sure whether to feel sorry for him, in the way he has wasted his money and time, or admire his ingenuity; but this isn't an application which should be acceded to.

Insofar as Mrs Hurst is concerned, sympathy outweigh exasperation. She wanted to keep her home, her family, and she isn't a solicitor. So should she have legal advice to challenge these points? No, they are bad points. What of other points that may arise in the future? I think it would be wrong to give an adjournment for what might arise in the future. She has had plenty of time to seek legal advice before and Mr Hurst's idea to get her legal advice now is too late.

Every shot in the locker has been used.

Mr & Mrs Hurst's persistent attempts to stop this, only prolong the agony of losing their house.

Application dismissed."

15. In his oral submissions before me Mr Hurst repeated the application which he made to Neuberger J that a stay should be granted and the application adjourned so that Mrs Hurst could seek legal aid to be represented. I indicated that I rejected that application. My reasons are the same as the judge. There are, in my judgment, no points of substance to be litigated and in any event it is now far too late for such a course even to be contemplated.
16. As to the substance of the matter Mr Hurst has, in effect, repeated the submissions which he made to Neuberger J. He submits, in addition, that Neuberger J's approach to the application was flawed in that his mind was, as Mr Hurst put it, tainted by the judgments of Lloyd J and of Master Bowles. Mr Hurst submits that the judge ought to have concentrated exclusively on events after 12 July 2001 when, according to Mr Hurst, he (Mr Hurst) first heard of the sending of the cheque in respect of costs to Mr Treppass' personal address. Mr Hurst seeks what he described as a "brief respite" in order to enable him to discuss the matter with the trustee in bankruptcy when appointed, with a view to taking a decision as to how the matter should proceed and whether specialist counsel should be instructed.
17. He repeats, in substance, the submissions which he made to the judge as to the effect of demonstrating that Mr Treppass had acted dishonestly in relation to the costs order in the House of Lords. He submits that that reflects upon the earlier costs orders, including the order the subject of the charging order. In other words, he submits that the dishonesty (as he would have it) of Mr Treppass in relation to the House of Lords' costs order effectively reopens the whole matter right from the start and enables Mr Hurst to challenge the original costs order which has led to this saga of litigation.
18. For my part, however, I can see no substance whatever in any of the contentions which Mr Hurst has made this morning. It seems to me, indeed it is plain from the attendance note, that the judge addressed carefully and thoroughly all the relevant issues, and I can see no reason to differ from any of his conclusions on those issues. I see no grounds for allowing any further delay in the execution of the possession order. As the judge aptly put it, every shot in the locker has been used.
19. Accordingly, I conclude that the proposed appeal has no chance of success and I have no hesitation in dismissing it.
(Application dismissed; no order for costs).