England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE BLACKBURNE)

		Royal Courts of Justice Strand London WC2 Wednesday, 12th December 2001

Wednesday, 12th December 2001

1. LORD JUSTICE TUCKEY: These two applications by Mr Perotti for an extension tension of time and permission to appeal relate to a search and seizure order made by Blackburne J on 7th July 1999, and an order made by Laddie J on 16th July 1999 that certain documents seized and held by the supervising solicitor when the earlier order was executed should be disclosed to the respondents. Both applications were made on 20th December 2000, so they were more than 16 months out of time.
2. This morning Mr Perotti objected to our giving judgment on these applications now. He said all the matters before us were inextricably linked so we cannot and should not give judgment on any one of them until we have heard all of them. I do not agree. This court must determine which appeals it has to decide and which it does not as soon as possible. That is why permission is required. The procedure for obtaining permission ensures that this is done shortly, so that such a decision can be made. Where the court has to consider such applications, as well as an appeal, the usual procedure is that they determine such applications first so that everyone knows where they stand; in other words so that everyone knows what can and cannot be argued before the court. Mr Perotti has addressed us at great length on these applications, but nothing he has said has persuaded me that we should depart from the usual procedure in this case. I shall explain later in this judgment why I do not think these applications are inextricably linked to the appeal which we are to hear.
3. The two orders in question followed freezing orders made by Rimer J on 18th and 24th June 1999, and were followed by proceedings for contempt which resulted in Mr Perotti being sent to prison for three months on 10th September 1999 for breach of the freezing orders. On 20th July 1999 Mr Perotti applied for permission to appeal the freezing order which was refused by this court when it disposed of a number of his other applications and appeals in February 2001. Mr Perotti did not need permission to appeal the committal order; and in so far as he needed an extension of time we gave it to him yesterday and have still to hear that appeal on its merits.
4. Mr Perotti's explanation for the delay in appealing the two orders in question can be summarised as follows. He would have applied within the time limit (then 28 days) but did not do so because in this time he was faced with having to defend himself against the contempt proceedings; so he was overwhelmed by events. He was then sent to prison and when he came out he tried to obtain assistance from a number of solicitors to whom he made it clear that he regarded appeals against the freezing, the search and seizure and the committal orders as one. They failed to file a notice of appeal against the two orders in question or advise him that he needed to do so. He added that, as this court had adjourned his appeal against the committal order generally in September 1999, he had assumed that the same applied to his appeal against the search and seizure order.
5. Mr Perotti rightly submits that in considering delay the court should also have regard to the merits of the proposed appeals. These he submits are very strong. To explain why I need to set out a little more of the background.
6. The orders were made to assist the respondents to enforce large orders for costs made against Mr Perotti in the proceedings. The trial had been heard by Rimer J who, at its conclusion on 18th April 1997, made a number of orders including one which reserved all further applications to himself.
7. At the hearing on 24th June 1999 when he confirmed the without notice freezing order which he had made a few days earlier Rimer J give the respondents permission to cross-examine Mr Perotti about his assets. In the course of this cross-examination Mr Perotti objected to answering questions about what he had done with the proceeds of a loan of just over £119,000 raised on the security of his flat on the grounds that his answers might incriminate him. Rimer J upheld Perotti's objection "with a degree of reluctance" saying:

"Mr Perotti, having asserted the point I could not safely conclude against him that if he were required to answer the questions he would not in some way risk incriminating himself."

8. The respondents are now unable to explain why they made the application for the search and seizure order to Blackburne J and not to Rimer J, other than that Blackburne J was the applications judge at the time. Leading counsel, who appeared for the respondents, told Blackburne J that the order was required principally to try and obtain documents relating to the £119,000 loan, but he did this by reference to an affidavit, Mr Perotti's 30th, sworn on 30th June 1999 in response to Rimer J's order that he disclose his assets. The exhibits to this affidavit showed, so it was submitted, that Mr Perotti had made conflicting and inconsistent statements to lenders about his income and assets, including what he intended to do with the £119,000 loan, which they submitted justified the search and seizure order so as to obtain documents to show what the true position about Mr Perotti's wealth was. Counsel also told the judge about what had occurred before Rimer J, and said that because they were concerned to protect Mr Perotti against the danger of self-incrimination they proposed that the search should be carried out by an independent solicitor. The order provided for this and contained the usual terms about self-incrimination, and provided that Mr Perotti should gather together any documents he believed might be incriminating and hand them to the supervising solicitor before the search began. This is what happened when the search and seizure usual order was executed.
9. On 16th July Laddie J was asked to consider whether the documents held by the supervising solicitor should be withheld from the respondents. He decided they should not. He took the view that Rimer J had not resolved one way or the other whether in fact Mr Perotti's claim to privilege was justified but had simply stopped the cross-examination to enable the hearing to proceed without this issue being resolved. Of the documents themselves he said:

"I have looked at the documents which the supervising solicitor obtained on execution of the search and seizure order. I agree with Mr Perotti's characterisation that those documents themselves give rise to no suggestion whatsoever that Mr Perotti is at risk of incriminating himself. Furthermore, I have seen and heard nothing today which has persuaded me that the risk of incrimination is real. As I say it is for Mr Perotti to persuade me that it is real. In my view he has singularly failed to do so."

10. Mr Perotti submits that the respondents deliberately applied to Blackburne J for the search and seizure order because they knew that Rimer J would not have made such an order in view of his earlier ruling about self-incrimination. Rimer J had already decided this point in his favour, so neither Blackburne or Laddie JJ should have made orders which effectively went behind that decision. Mr Perotti relied on an earlier decision of this court in these proceedings to the effect that once a judge had made an order which had been sealed and perfected that judge or another judge at the same level could not amend it. At least, Mr Perotti submits, Blackburne J should have been told that Rimer J had reserved all applications to himself, and he was not. Only Rimer J with his long experience of the case was in a position properly to assess whether a search and seizure order was justified in all the circumstances. The order made by Blackburne J was not proportionate as shown by the fact that Mr Perotti has been ordered to pay costs of £47,500 in respect of it. Finally, as I have said, Mr Perotti submits that his appeal against the committal order is inextricably linked with the appeal against the search and seizure order.
11. In my judgment the delay in appealing the two orders in question was inordinate and is not in any way excused by what Mr Perotti has said. With his great experience as a litigant in person he is well aware of the time limits for appealing. These limits are there for a purpose: to bring finality, particularly where interlocutory orders are concerned. Mr Perotti was able to file a notice of appeal in time (on 20th July 1999) against the freezing order despite the fact that he already faced contempt proceedings at that time. There is no reason why he could not have appealed the two orders in question at the same time. His efforts to obtain legal assistance do not provide any excuse either. He has acted through most of this litigation in person, and the correspondence with solicitors which we have seen shows clearly that he was well aware of the fact that he had not filed a notice of appeal. It also does not support his assertion that he did not believe that a notice was required.
12. Thus the question is whether the merits of Mr Perotti's prospective appeals are so strong that we should overlook the delay in the interest of justice. I do not think they are. No one on the respondents' side can now remember why the application was made to Blackburne J and not to Rimer J. There may be a perfectly good reason which would probably have emerged if the application had been made in time. In these circumstances it would be quite unfair to infer that this was done for some improper purpose. Blackburne J should have been told that Rimer J had reserved all applications to himself. But if he had been I do not think this would have made any difference. The important thing was that he was given enough of the background to enable him to see the extent to which Rimer J had been involved and, more importantly, he was told in some detail about what had occurred on 24th June and that Mr Perotti had invoked the privilege against self-incrimination. That is clear from pages 44-49 of the transcript of the hearing before Blackburne J, and the skeleton argument which the respondents put before him for the purpose of that hearing. Rimer J had not made any binding decision or ruling about self-incrimination and no order about this was or could have been drawn up. He had merely stopped counsel cross-examining. As I have said, the request for a search and seizure order was not simply to obtain incriminating documents, but was based on information provided by Mr Perotti in his affidavit which was not before Rimer J on 24th June and cast doubt on what he had said about his means.
13. Looking at that information all I need say for present purposes is that I can understand why it gave the respondents cause for concern. Insofar as potentially incriminating documents were seized on the search Mr Perotti was adequately protected by the terms of the order which Blackburne J. The procedure enabled the respondents to find out what had happened to the £119,000 without exposing Mr Perotti to the risk that he would incriminate himself. In other words if incriminating documents relating to this transaction were discovered they would not have to be disclosed. This was a safer method of discovery from Mr Perotti's point of view than cross-examination. In the event, as Mr Perotti conceded before Laddie J, no incriminating documents were seized and so Laddie J's order that they should be disclosed cannot be faulted.
14. Rimer J would have been best placed to decide whether or not to make a search and seizure order; but even with the benefit of hindsight I do not think it is possible to say that he would not have made an order in the circumstances as they were put before Blackburne J. On the contrary, I think on the new material he would have made such an order. This was an expensive exercise because of the safeguards written into the order to protect Mr Perotti and because the search took two days, for reasons which I need not elaborate, but which certainly cannot be blamed on the respondents.
15. I do not accept that it is necessary for Mr Perotti to be able to appeal the search and seizure order to enable him to advance his appeal against the committal order. One of Mr Perotti's complaints about the search and seizure order is that it yielded little, if anything, of value to the respondents. The committal was for breach of the freezing order. The most serious allegation was that Mr Perotti had, by vesting assent transferred a flat of which he was the legal owner into the name of his daughter two days after the first freezing order was made. The respondents learnt of this from Mr Perotti and not as a result of the search and seizure order.
16. For those reasons I would refuse these two applications for extensions of time and permission to appeal.
17. LORD JUSTICE CHADWICK: I agree. If there had been material from which the inference could properly be drawn that Mr Watson or his advisors had made the application for a search and seizure order to Blackburne J rather than to Rimer J, who, on 24th June 1999, had reserved the further applications to himself with the intention of obtaining some forensic or other advantage I would have taken a different view. But there is no such material. There is simply no explanation which those representing Mr Watson are now able to offer as to why they took the course they did. It would not be right now to draw an inference which would carry with it connotations of improper conduct in the circumstances that the application for permission to appeal has been so long delayed.
18. LORD JUSTICE PILL: I agree with both judgments.
(Applications refused; respondents' application 2000/3778A dismissed by consent; no order for costs).