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 ROBERT WALKER)

		Royal Courts of Justice Strand London WC2 Tuesday, 27th November 2001

Tuesday 27th November 2001

1. LORD JUSTICE PETER GIBSON: This is an application by an appellant's notice filed on 14th September 2001 by Rajinder Paul Sharma for permission to appeal from an order made by Robert Walker J as long ago as 25th January 1995. The delay in the application is not the only extraordinary feature of it. One other feature of note is that the order from which Mr Sharma wishes to appeal is a consent order which he has already unsuccessfully sought to set aside both in the proceedings themselves in which the order was made, and in other proceedings. These circumstances enable me to state the facts very briefly.
2. The order made by the judge was in an action for possession brought on 17th August 1992 by the mortgagee, the Royal Bank of Scotland, against the mortgagors, Mr Sharma and his wife, and other members of Mr Sharma's family to whom he had purported to grant leases or licences of parts of the mortgaged property.
3. Mr Sharma had been represented by solicitors and counsel when the trial started, but on 20th January 1995 legal aid was withdrawn from him, and Mr Sharma and the other members of his family then appeared in person. Mr Sharma asked for a four-month adjournment. The judge granted an adjournment of four days. That ruling was not appealed. After negotiations a consent order was agreed on 25th January on terms that the bank recovered possession of the mortgage property, and that all further proceedings in the bank's action and on Mr Sharma's counterclaim, and on a further related action brought by Mr and Mrs Sharma against the bank which would have been heard immediately after the bank's action, were stayed. The judge specifically ascertained from Mr Sharma that he agreed the terms before the judge made the consent order. A few weeks later Mr Sharma applied to the judge to set aside the order. He alleged that it was obtained by duress by the bank. The judge, on 11th April 1995, dismissed that application on the ground that he had no jurisdiction to set aside a consent order. That relief, he said, could only be sought by a separate action brought for the purpose, though the judge did not encourage such action. I have not been shown any notice of appeal or order made by the Court of Appeal from that order, though Mr Sharma has told me today that he did appeal that order. There can be no doubt that he must have done so unsuccessfully.
4. In March 1999 Mr Sharma brought fresh proceedings to set aside the order of the judge of 25th January 1995. They were struck out by Master Turner on 16th May 2000. The Master also made a Grepe v Loam order that Mr Sharma should not be permitted to issue any claim out of the High Court in respect of the consent order, nor to seek to set aside that order without leave of a judge of the High Court or the Court of Appeal. Mr Sharma applied for permission to appeal against the Grepe v Loam order. That was refused by Buckley J on 15th June and after an oral hearing by Smedley J on 14th July 2000.
5. I shall treat the application for permission to appeal as including, in the first place, an application to this court under the Grepe v Loam order for permission to seek to set aside Robert Walker J's order even though the appellant's notice makes no mention of the fact that a Grepe v Loam order was made.
6. Mr Sharma repeats that he was under undue influence from the bank and that he was subjected to undue duress. He says that not only was the bank exercising duress, but also the judge, through his clerk, exercised undue influence over him. He seeks to invoke Article 6 of the European Convention on Human Rights because he says he has not had a fair hearing. He attached a medical certificate from a doctor to explain the extraordinary delay. The medical certificate so attached did not bear a date, but there has been handed to me today a copy of that certificate bearing the date 22nd November it 2001, which I am told was placed on the certificate by the receptionist at the doctor's surgery. This states that Mr Sharma had only been registered with that practice since 1996 and that for the past four to five years he had been suffering from various ailments. The certificate says that those conditions were gradually getting worse but since he has been under specialist care and on medication (which is specified) all of his medical problems have been stabilised. Thus it does not purport to deal with the delay from the making of the judge's order in January 1995 until some unknown date in 1996. It does not say how long he has been under specialist care, nor does it give a date for when his medical problems were stabilised. It certainly does not state that during any part of the period he was unable to attend to matters such as getting on with an appeal. Further, it is obvious from the fact that Mr Sharma brought the fresh proceedings in March 1999 and that this went to a court hearing in 2000 that Mr Sharma has for some considerable time been able to attend to his legal affairs. As a way of seeking to excuse the gross delay, in my judgment, this certificate is hopelessly inadequate.
7. In any event I can see no prospect whatever of Mr Sharma succeeding on an appeal from the judge's order of 25th January 1995. The order sought to be appealed against was a true consent order, consent to which the judge had taken pains to ensure that Mr Sharma had given. His attempt to get the judge to set aside that order failed. He cannot appeal that order. His attempt to bring new proceedings have also failed.
8. Mr Sharma has today repeated the accusation that the judge behaved in an improper way in seeking to influence him through his clerk. There is not a trace of that allegation in April 1995 when the judge gave his judgment refusing the application to set aside his order. In my judgment this attempt to smear the judge is absurd, and there is, similarly, no substance whatever in the allegation that his rights under Article 6 of the Convention were breached by what occurred in 1995. The Human Rights Act 1998 only came into force in October last year, and there is simply no way in which it can be applied retrospectively to what occurred in January 1995. In any event, I can see no breach of Article 6 of the Convention. Parties are free to compromise their disputes.
9. Mr Sharma has sought to address me today on the underlying merits of his claim. I have attempted, I fear probably unsuccessfully, to explain to him why the prior obstacle to be overcome is the fact that there has been a consent order to which he subscribed. In these circumstances there is no question of this court going into the underlying merits of the dispute compromised back in January 1995.
10. I have, therefore, no hesitation in refusing him consent to seek to set aside the judge's order by his intended appeal and in refusing permission to appeal.
(Application refused; no order for costs).