England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM CROYDON COUNTY COURT
(His Honour Judge Ellis)

		The Royal Courts of Justice The Strand London Tuesday 18 December 2001

Tuesday 18 December 2001

1. LORD JUSTICE SIMON BROWN: This is an application for permission to appeal against the order of Judge Ellis at the Croydon County Court on 4 October 2000 refusing Mr Hussein's application to transfer his action out of the Croydon County Court. It was adjourned by Mummery LJ at an oral hearing without notice on 15 May 2001.
2. Let me explain, as briefly as may be, the background to the case. The story begins over 14 years ago on 29 September 1987 when the applicant was arrested in his Clerkenwell Road office and charged with offences of false accounting and the like, and a large number of documents was taken from him. He says that the underlying reason for all this was that for the past two years or so he had been endeavouring to expose the misdeeds of Hambros Bank and the Bank of England. Be that as it may, in November 1989 he was tried at Acton Crown Court on a count of conspiracy to obtain money from building societies by deception and acquitted.
3. On 21 January 1991 he issued a specially endorsed writ against Hambros Bank and the Commissioner of the Metropolitan Police and two of his officers. He drafted the claim himself. Suffice to say that he claimed total damages of £11.8m for conspiracy, false arrest, wrongful prosecution and misfeasance. On 7 January 1994, on a pre-trial review of that claim, an unless order was made by Judge Sir David Hughes Morgan in the Croydon County Court, striking out the applicant's claim as against the police unless he were to file before 21 February 1994 evidence of his financial position. The claim was shortly thereafter struck out on the ground that such evidence had not been filed, whereas in fact, as will shortly appear, it had.
4. The applicant applied to the Court of Appeal for permission to appeal against that strike-out order. Initially his application was adjourned, in particular because it had been reserved to a constitution over which Russell LJ was to preside and he was initially unavailable to hear it. Regrettably, however, it then came to be overlooked in the Court of Appeal office. Finally, on the applicant's application, it was relisted and eventually brought before this court, consisting of Butler-Sloss LJ and Potter LJ, on 2 December 1997. By then the error as to the filing of the affidavit had come to light and both the application for permission to appeal, and indeed the appeal itself, were in the result allowed. The material part of Potter LJ's judgment reads as follows:

"It is the applicant's case that he did in fact file an affidavit and it is not in dispute that he served the defendants with a copy of the affidavit in time.

The defendants have resisted the application and the appeal to date because they seek to maintain the order in what is unusual and, as they see it, oppressive litigation. However, it now appears that whereas hitherto the chief clerk of the County Court has maintained the position that there is no evidence of the receipt at the County Court of the affidavit, a photocopy has been found on the court file which indicates that that may be incorrect. Consequently the defendants have taken the very proper attitude that they do not seek to oppose the application or indeed the substantive appeal. They have appeared before us by counsel today to indicate their position. In those circumstances I would consider it right to grant leave to the applicant to appeal out of time and to treat this application as the hearing of the appeal and to allow the appeal."

5. The action thus having been reinstated, further steps were taken in the Croydon County Court to progress it. On 23 July 1999, however, a second unless order was made against the applicant, this time in respect of his failure to give discovery. On 18 August 1999 a district judge at the county court struck the action out for non-compliance with that unless order. The applicant then appealed. The appeal came before Judge Ellis on 4 October 2000. The applicant, however, chose not to advance his appeal but rather to apply to Judge Ellis for the transfer of the entire proceedings out of the Croydon County Court to another court. As paragraphs 5 and 6 of Judge Ellis' short judgment record:

"5. Mr Hussein has made it clear that unless the Court orders that the case be transferred to another Court for the hearing of the appeal, he does not intend to proceed with the appeal. He says that is because he has no confidence in getting a fair trial if the matter remains at this Court.

6. He recognises that I come fresh to this case, I have not been involved in any earlier hearing. He does not seek to impugn my integrity. However, he says that even if I were to allow his appeal, there may well be further interlocutory hearings and in due course there would be a final hearing and he does not have confidence that others at this Court will enable him to have a fair trial."

6. The judge's reasons for refusing the transfer application were set out in paragraphs 10-13 of his judgment as follows:

"10. In his application for transfer to appeal (sic), the Claimant has made two serious allegations against the legal representatives of the Defendant. He said first of all that the Defendant solicitor, Mr Skipper, had arranged for the hearing to be transferred to a different district judge at the last minute. There is a witness statement from Mr Skipper (and I have no reason to doubt what he says) to the effect that he was not even at the hearing in August. He was away on holiday. There is also a serious allegation made against counsel, Mr Walters, who appears before me today, in which the Claimant states that counsel is lying, when he says that he is submitting a summary of hearing notes when in fact counsel did not attend the hearing.

11. The records show that Mr Walters did attend. Mr Walters tells me he attended and I have no reason to doubt his word about that. The Claimant has conceded that he may have been mistaken about that.

12. The importance of those two points is that they demonstrate that this is a Claimant who is prepared to make wild allegations when there is no evidence at all to substantiate them. In those circumstances, it seems to me, that I must approach with very great caution the other allegations that he has made against officers and judges of this court.

13. I have come to the conclusion that it would be wrong in the circumstances for me to order that the matter be transferred to another court. I am quite satisfied that I am in a position to give Mr Hussein a fair hearing of his appeal today and I am also satisfied that if his appeal were to succeed this Court would ensure that the matter proceeded to trial and would ensure that the claimant had a fair trial. For those reasons I refuse the application to transfer the appeal."

7. Having rejected the application for a transfer out of Croydon County Court, the judge then asked the applicant if in those circumstances he wished to proceed with his appeal against the strike-out order. When Mr Hussein indicated that he did not, but was intent rather upon pursuing the matter to Strasbourg, the judge dismissed that appeal.
8. Thus it was that the matter came before Mummery LJ acting as the single Lord Justice in this court on 15 May 2001. Mummery LJ recited something of the history of the case and then, in paragraphs 7 and 8 of his judgment, said this:

"7. The allegations made by Mr Hussein are serious and disturbing. He says in his application that the court at Croydon is corrupt and racist and the Metropolitan Police are in some kind of corrupt relationship with the court. He says that he has been subjected to racial prejudice. The district judge was simply not interested in the facts or the law in his case and the circuit judge had failed, despite his denial of human rights, to transfer his action to another court notwithstanding, he says, evidence of corruption and partiality in the court. What he wants is for this matter to be transferred to and tried in the High Court. .... He said that the Court of Appeal had previously ruled that his appeal should be allowed in view of the contradictory evidence filed by the chief clerk in Croydon in respect of an earlier appeal in this matter.

8. He complains that no action has been taken either by the circuit or the court against the administrator who, he says, has lied on oath. He, as a litigant, cannot in these circumstances have any confidence in that court. He [complains too] about the matter being transferred from the judge who, he says, would normally have heard it to a judge who would more normally deal with criminal cases."

9. I can pass now to paragraph 11 of Mummery LJ's judgment:

"11. In order to appeal against the exercise of the discretion, such as exists in the transfer of cases from one court to another, Mr Hussein would have to show that he had a real prospect of demonstrating on a full appeal to this Court that the discretion had been exercised in disregard of legal principle or that the exercise of it in refusing the transfer was plainly wrong. On the paper materials that I have at the moment, I would take a great deal of persuading that the appeal on that ground had a real prospect of success. However, as I have explained to Mr Hussein, I am concerned by the seriousness of the allegations which he is making, both in his notice of application and in his oral submissions today. I do not think it would be right for me to refuse permission without him having an opportunity to present to a full Court evidence in support of his complaints about the way that this matter has been dealt with in Croydon."

10. In the result, Mummery LJ adjourned the application to the full court, with the appeal to follow if permission were granted. By paragraph 2 of his order he ordered:

"the Claimant to swear a detailed affidavit, exhibiting all relevant documents and particulars of allegations and against whom he is making them and the basis on which he submits that it is not possible for him to have an independent and impartial adjudication of his case in the Croydon County Court."

11. That affidavit, with a bundle of exhibits, is now before us. Let me quote just a few core paragraphs from the affidavit to indicate essentially how the applicant puts his case and to give something of the flavour of his allegations:

"11. When my case was first dismissed by Judge Hughes Morgan Mr MB Callaby a senior MI5 officer sat in Court but a lady with me was cross-examined by the Judge for being in Court although the hearing was in open Court. When I appealed and the matter came up in Appeal I produced evidence of having complied with Orders, the Defendants admitted I had served them too, the Court adjourned my Appeal for Chief Clerk of the Court to file evidence. Mr Callaby's contact number was 071-218-0393 a Whitehall Counter Intelligence contact number.

12. The Chief Clerk filed perjured evidence at the Court of Appeal. It was a deliberate perjury. The Court of Appeal failed to list for 2 1/2 years knowing of the perjury. I had to threaten to take the Appeal to the European Court of Human Rights before my Appeal was listed, where it was granted. The Croydon Court failed to List it on my application and Defendants applied to strike me out for undue delay. All kinds of tricks were tried by the Defendants with the help of the Court and Counter Intelligence Services ....

15. ... The UK Courts are trying to cover up their frauds by wilfully and deliberately finding excuses to dismiss my action. All this is to assist the frauds of the executive.

16. In the circumstances the executive has been trying to obstruct Justice by various dishonest devices including influencing officers of Courts and the Judiciary. Misuse of Court rules by the Defendants and use of threats and intimidation by Police and MI5 officers to stop the Claimants action."

12. I have no doubt that Mummery LJ was right to give the applicant the chance he did to make good the "serious and disturbing" allegations he was making, rather than simply dismiss his application out of hand. For my part, however, I have equally no doubt that the affidavit and bundle of documents now produced by the applicant purportedly in support of his application fall far short of making good his "serious and disturbing" allegations and, indeed, provide no solid foundation whatsoever for disturbing the exercise of Judge Ellis' discretion below not to transfer this action out of the Croydon County Court.
13. Mr Hussein seeks to invoke before this court article 6 of the European Convention on Human Rights. He alleges actual bias on the part of the Croydon County Court, including Judge Ellis, on the basis that the chief clerk there is corrupt and as chief clerk he has influence with the judges at that court.
14. Of course it is regrettable that the chief clerk at the Croydon County Court, in his initial short affidavit of 30 March 1995, first maintained that there was no affidavit from the applicant on the court file, before later, as it subsequently appeared, a copy was to be found on the file. It is regrettable too that the applicant's appeal against the consequential strike-out order came to be overlooked by the Court of Appeal office for some two and a half years until finally it came to be heard by Butler-Sloss LJ and Potter LJ four years ago in December 1997. To suggest, however, that the chief clerk committed perjury is to my mind unwarranted, just as is the allegation in the applicant's recent affidavit that:

"The Court of Appeal failed to list for 2 1/2 years knowing of the perjury." (Emphasis added)

15. Mistakes, alas, can and do occur. That seems to me the likely, if not indeed the plain, explanation for what occurred here.
16. The applicant's suggestion that MI5 is involved in this case and is conspiring with the police and the courts to defeat his rights is, to my mind, equally far-fetched and unconvincing. It is simply not sustainable on the documents before us.
17. Judge Ellis noted in the passage already read from his judgment that the applicant is someone "prepared to make wild allegations when there is no evidence at all to substantiate them". That, I have to say, is the view that I have arrived at too. Mummery LJ rightly pointed out to the applicant that he:

"... would have to show that he had a real prospect of demonstrating on a full appeal to this Court that the discretion had been exercised in disregard of legal principle or that the exercise of it in refusing the transfer was plainly wrong."

18. That, in my judgment, Mr Hussein has signally failed to show. I would dismiss this application.
19. LORD JUSTICE SEDLEY: I agree. Experience shows that it is not wise for a court to dismiss anything as impossible. Experience also shows that the court must do nothing without proof. Assertion is not sufficient. In spite of Mummery LJ's direction to Mr Hussein to file affidavit evidence in support of his allegations, the only concrete evidence tendered by him has been the fact of the erroneous affidavit sworn by the chief clerk in March 1995. It is, as my Lord says, possible to depose to something which turns out to be untrue without being guilty of perjury. It is also possible for an officer of the court to hold a hostile view of a litigant - although I do not say that that was necessarily the case here - without his view having any influence at all on the judge's. No judge should ever let such views affect him, and in Judge Ellis' judgment I can detect no hint of a less than scrupulously objective approach to his own task and to the applicant.
20. I strongly suspect that the truth lies in something which Mr Hussein described to us in his oral submissions this morning. That is the fact - and I fear that it is a fact - that the papers in litigation which seems to be endlessly proliferating sometimes get misfiled by harassed county court office staff. Such errors, while always regrettable, do not require a conspiracy. They are a fact of life, and a fact quite sufficient to explain what went wrong here. I too would refuse this application.
ORDER: Application refused with costs