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 QUEEN'S BENCH DIVISION
(Mr Justice Park)

		Royal Courts of Justice Strand London WC2 Thursday, 8th November 2001

Thursday, 8th November 2OO1

1. LORD JUSTICE PETER GIBSON: This is an application by Mrs Tilly for permission to appeal against the order of Park J dated 25th July 2001 dismissing her appeal from the decision of His Honour Judge Simpson on 6th April 2001. Park J made some case management directions, which I will recount in a moment. Judge Simpson in the Mayors and City of London Court had struck out an action brought by Mrs Tilly against the London Borough of Tower Hamlets ("the Council") as an abuse of the process of the court.
2. The procedural background is somewhat complex. Mrs Tilly is a tenant of a flat of which the Council is the landlord. For ten years she and the Council have been in dispute over her liability to pay rent, rates, community charge and council tax. She claims that she has made overpayments. The Council says that she is in arrears. Between 1993 and 1997 the Council obtained five liability orders against Mrs Tilly in the Magistrates Court. In addition four county court summonses for possession were issued. She obtained leave to apply for judicial review of the liability orders and they have been quashed.
3. The proceedings with which I am concerned are two actions brought by Mrs Tilly. The first was an action commenced on 29th September 1999. By it she claimed £50,000 damages for stress and harassment caused by the Council's "continual and malicious persecution" of the claimant, attempts to obtain various payments and possession. The Council claimed that there was no reasonable cause or action for harassment so far as the claim related to matters before 16th June 1997 when the Protection from Harassment Act 1997 came into force, and that there was no civil cause of action for malicious persecution. On 10th November 1999 Master Hodgson struck out Mrs Tilly's claim. However on 29th November 1999 Mitchell J allowed her appeal to restore the action to the limited extent that she was claiming that she had overpaid £1,235.42 rent and rates. Thus her action was simply limited to that single matter. She sought leave to appeal but that was refused by this court on 9th May. Mitchell J however, in the course of his judgment, made some comments which unfortunately have been misinterpreted by Mrs Tilly. He said this:

"As I have pointed out to her during the course of this morning's argument, if she were to succeed in establishing that there had been an overpayment and that she was entitled to recover from the Borough some money, then and only then would be the time to sit back and to consider whether or not there was, in law, a cause of action open to her which would enable her to recover damages in respect of the course of conduct over the years about which she complains. That there is such a cause of action, I doubt, but it is not for me to decide that now, nor am I equipped to do so."

4. He there raised the possibility that once she had succeeded in establishing that there had been an overpayment, then she might consider whether there was in law a cause of action to enable her to recover damages. But he doubted whether there was such a cause of action.
5. In the Court of Appeal where her application for permission to appeal was refused, Nourse LJ referred to Mitchell J's comment, saying:

"So that is one observation which would suggest that in certain circumstances it might not turn out that all was lost".

6. Again, it was not being suggested that there was definitely a cause of action.
7. Nevertheless Mrs Tilly on 11th August 2000 started a second action against the Council in the Mayor's and City of London Court. She claimed £1,135.54 overpayment of rents and rates and £60,000 damages against the Council for having issued summonses against her and for failing to examine her rent and rates payments and receipts. That came before Judge Simpson. Judge Simpson described the claim for £60,000 as bearing a similarity with the £50,000 claim. He said that the claimed overpayment of rent and rates was a duplication of the High Court proceedings. He did not accept that there could be a claim for damages such as had been suggested, but doubted, by Mitchell J. Accordingly Judge Simpson struck out the proceedings as an abuse of process. That he considered it was an abuse of process he makes clear at several places in his judgment.
8. Mrs Tilly then sought to appeal by an Appellant's Notice. She obtained from Lightman J permission to appeal from Judge Simpson's order but "limited to the claim for repayment of overpayments". In the form which Lightman J completed relating to the application for permission to appeal he said of the reasons for his decision to allow that application in part only:

"The order striking out the claim to £60,000 damages as an abuse of process was fully justified by the judgments of the first instance judge and Court of Appeal striking out this claim at an earlier stage in the proceedings."

9. The limited appeal which Lightman J had allowed came before Park J, but before I recount what happened then I should refer to a further attempt by Mrs Tilly to obtain an unqualified permission to appeal. She has shown me this morning an Appellant's Notice which is undated and bears no stamp on it to indicate that it has been received by that court. But in it she says that she wants to appeal Lightman J's order. She has also shown me a document in which she applies for an order for Lightman J's order to be amended so that the permission to appeal would be unlimited. That is shown as having been received (I think it must be in the High Court) on 23rd May 2001. Someone has written on it (I think Mrs Tilly herself):

"Before Park J 25th July".

10. Park J makes no mention of this further Appellant's Notice. He treated the matter before him as one which required him to give directions in view of the fact that the point which had been allowed by Lightman J to go to appeal was already a matter of which the county court was seized and would be going ahead pursuant to Mitchell J's order.
11. Park J made the following order on 25th July 2001. The order recited that there are two proceedings in existence between the parties. Unfortunately in referring to the action commenced by Mrs Tilly in the Queen's Bench Division he referred to it by the wrong reference number. The final digit was incorrect, but it is quite plain what is the action to which he referred. It is the action commenced in the Mayor's and City of London County Court. The order further recited that the action commenced in the Queen's Bench Division stood remitted to Bow County Court under Mitchell J's order. Mitchell J had ordered that the case be remitted to the county court.
12. I am told by Mrs Tilly that there have been a number of orders made in the county court. She did not want the action to proceed in Bow County Court as that was not convenient to her. She wanted it to proceed in the Mayor's and the City of London Court, and she has this morning shown me an order, made on 30th January 2001 by His Honour Judge Bradbury in the Bow County Court, allowing her appeal against the district judge's order and ordering that the action be transferred back to the Mayor's and City of London County Court.
13. Park J's order recited that the case was remitted to the county court for a determination of her claim to be entitled to repayment of overpayments of rent and rates, other parts of the claim having been struck out. It further recited her belief that the claim had been transferred to the Mayor's and City of London County Court. It also recited Judge Simpson's order striking out her claims in the proceedings commenced in the County Court and recited that Lightman J had granted permission to her to appeal, that appeal being limited to the claim for repayment of overpayments. Further, it recited that the appeal was before Park J for determination. There was another recital that no application was before Park J in the action which had been commenced in the Queen's Bench Division, but that the parties had consented to him giving directions in that claim by way of trial management.
14. The orders that were made were these. First, he ordered that, if the claim commenced in the Queen's Bench Division had not been transferred from Bow County Court to the Mayor's and City of London County Court, it should be so transferred for determination of the issue of repayment of overpayments. I pause there to say that that order is of course now ineffective, given that there has been a transfer to the Mayor's and City of London County Court pursuant to the order of Judge Bradbury. Second, Park J ordered that the appeal in the claim commenced in the County Court from the order of Judge Simpson, which appeal was superfluous by reason of the present position in respect of the claim commenced in the Queen's Bench Division, be dismissed, but, the order adds, not so as to affect Mrs Tilly's right to continue with the claim commenced in the Queen's Bench Division on the issue of overpayments. Finally, there was an order that she pay the Council's costs of the appeal.
15. She now seeks permission to appeal from Park J's order. She does so on a single ground, which I will read:

"Chancery (WG7) informed that The Honourable Mr. Justice Lightman had granted Leave to Appeal. My application to Appeal was limited to amending The Honourable Mr. Justice Lightman's Order to: `That the application be granted'. The Honourable Mr. Justice Park's Order however, has no bearing on my application."

16. In fact her Appellant's Notice, which Park J thought he was dealing with, makes it clear beyond doubt that her appeal from Judge Simpson's order was on the grounds that that her application was not an abuse of process and that the Council had wrongly stated that the action was the same as the action struck out by Mitchell J. So Park J quite rightly considered that that was the matter that was before him. Insofar as Park J had the application for permission to appeal from Lightman J's order before him, he would have been entitled to refuse to deal with such an application. There is no power for one High Court judge to allow an appeal from another High Court Judge. Moreover, where the decision of the earlier High Court judge was made in open court refusing permission to appeal, there is no power to take the matter further: see section 54(4) Access to Justice Act 1999 and Civil Procedure Rules, Part 52 Practice Direction, paragraph 4.8.
17. It would have been impossible for Park J to reverse Lightman J's order. That is the only matter that is before me today and, for the reasons which I have given, it is hopeless for her to seek to appeal against Park J's order on the basis that he did not deal with the application for permission to appeal from Lightman J's order. I would add that I have no jurisdiction to grant her permission to appeal for what would be a second appeal unless she can show that there is some important point of principle or practice that is raised by her appeal. There is none.
18. What it appears today she is complaining about most of all is the award of costs made against her. She says it is quite wrong that those costs should be asked of her when she is the one who has been claiming from the Council that overpayments had been made to the Council. She tells me that she has received a request from the Council to pay £6,814 by way of costs. She has not sought to have those costs taxed. Costs orders are made in the exercise of discretion by judges. It is very difficult for any appellate court to interfere with such exercises of discretion, and certainly no material has been put before me to show that the exercise of discretion in this case on costs was wrong.
19. Mrs Tilly has unfortunately made a number of claims which have no foundation in law, or she has brought a second claim repeating an earlier claim which has been struck out or which merely duplicates an earlier claim still to be tried. In these circumstances it is open to the court to order costs against her. Mrs Tilly suggests that that would be contrary to the Human Rights Act 1998. I cannot see any reason whatever under Article 6, or indeed any of the other Articles of the European Convention on Human Rights, which prohibits a court from ordering costs against an unsuccessful litigant. In my judgment therefore there is simply nothing in this case that raises any question which should be considered by this court on appeal.
20. Accordingly I must dismiss this application.
Order: Application dismissed. No jurisdiction for permission to appeal.