England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE PUMFREY)

		Royal Courts of Justice The Strand London Thursday 8 February 2001

Thursday 8 January 2001

1. LORD JUSTICE PETER GIBSON: The claimant, Abdul Ghaffar Khan-Ghauri, applies for permission to appeal out of time from the order of Mr Justice Pumfrey on 15 June 2000. The judge dismissed with indemnity costs Mr Khan-Ghauri's applications to strike out the defence of Dunbar Bank Plc ("the bank"), a defendant in each of four actions commenced by him in 1998 against the bank and four other defendants, and his application for an order under section 320 of the Insolvency Act 1986 ("the Act"). On the bank's applications the judge dismissed the actions. The judge refused permission to appeal.
2. The appellant's notice was filed on 11 August, well outside the fourteen-day period prescribed by Civil Procedure Rules Part 52.4(2)(b). Mr Khan-Ghauri gives two excuses for the delay. The first is that he did not receive a copy of the order of the judge until 8 July. However, time runs from the decision and Mr Khan-Ghauri was present when the judge gave his decision. The second is that he suffers from asthma. He has produced a form of medical certificate on which a doctor, who examined Mr Khan-Ghauri on 4 August purports to advise him that because of asthma he should refrain from work from a date five weeks earlier, 1 July, to 31 August. That is a strange document, but even on its face it does not explain why Mr Khan-Ghauri did not file his appellant's notice in the two weeks prior to 1 July. Further, I note that Mr Khan-Ghauri's asthma did not prevent him from writing letters to the court in July. The delay is not adequately explained. However, this court's practice is to pay most attention to the question whether there are merits in the proposed appeal.
3. The background facts in summary are these. Mr Khan-Ghauri owned a number of properties in Cardiff and Manchester. In 1989 the bank provided Mr Khan-Ghauri with a loan facility of £180,000 on the security of his properties. By a legal charge the bank had the right to appoint receivers in the event of default. Mr Khan-Ghauri fell into arrears. On 11 March 1991, the bank issued in the Cardiff County Court a summons for possession in respect of 2 Gold Street, Cardiff. By a defence and counterclaim Mr Khan-Ghauri denied the bank's claim and counterclaimed for a minimum of £50 million towards damages and compensation from the plaintiff for "misrepresentation and professional negligence". The bank applied to strike out the defence and counterclaim, and Deputy District Judge Evans made an order to that effect on 10 October 1991. On 6 February 1992 His Honour Judge Francis dismissed an appeal from the Deputy District Judge's order. Earlier, in 1990 Mr Khan-Ghauri had brought proceedings in the Queen's Bench Division relating to alleged breaches by the bank of the loan facility. At the end of 1991 in that action he applied for the committal to prison of the directors of the bank. That was refused on 14 January 1992 by Mr Goldblatt QC, sitting as a Deputy Judge of the High Court. Mr Khan-Ghauri also applied for a stay of the Deputy District Judge's possession order of 10 October 1991. Further, he sought other injunctive relief and also sought the transfer of the bank's County Court proceedings to the High Court. The Deputy Judge refused all these applications too. In the course of his judgment he referred to one of the Manchester properties, which Mr Khan-Ghauri had claimed to be a second home for him. The Deputy Judge commented that if that property had been asserted to be the primary residence, the court would be sympathetic because if it had been Mr Khan-Ghauri's actual home the bank would not have been able to obtain possession without a court order. But the Deputy Judge went on to say that the claim by Mr Khan-Ghauri that the Manchester property was a second home was "a rather shadowy one". In the event he did not have to decide whether it was a second home. I mention this because Mr Khan-Ghauri has suggested that there had been some breach of an order made by the Deputy Judge. In my judgment, it is plain beyond argument that the Deputy Judge gave no ruling which would have enabled Mr Khan-Ghauri to complain of a breach by the bank. Mr Khan-Ghauri sought, but was refused, permission to appeal by the Deputy Judge and by this court.
4. I revert to the bank's County Court proceedings. On 28 February 1992 Judge Francis ordered a stay of possession until 20 March 1992. Further, if Mr Khan-Ghauri was given permission to appeal from the Judge's order dismissing the appeal from Deputy District Judge Evans before 20 March 1992, the stay was to continue until the appeal was determined. But Mr Khan-Ghauri never obtained permission to appeal. A warrant for possession was executed on 21 August 1992, when possession was taken of 2 Gold Street, Cardiff. Possession was also taken by receivers appointed out of court by the bank of other properties of Mr Khan-Ghauri charged to the bank. The properties were subsequently sold, but the net proceeds of sale were not sufficient to cover what was owed to the bank.
5. In 1992 two further actions were commenced by Mr Khan-Ghauri against the bank, in addition to one against an agent of the bank. All of them arose out of the possession taken by the bank on 21 August 1992. In one against the bank he sought recovery of possession of the properties and damages which were provisionally put by him at £1,500,000 for "the wrongful actions and professional negligence of the bank". On the bank's application the actions were struck out by Deputy Master Romer, and an appeal from that order was dismissed by Mr Justice Kay on 11 February 1993. An application for permission to appeal was refused by this court on 16 June 1993.
6. A second action against the bank making similar complaints was struck out by Mr Titheridge QC, sitting as a Deputy Judge of the High Court, on 4 December 1992. Again Mr Khan-Ghauri sought permission to appeal from that order. The application was adjourned by this court for a date to be fixed. It was then overtaken by the next event to which I must refer, Mr Khan-Ghauri's bankruptcy.
7. On 23 June 1993, a bankruptcy order was made against Mr Khan- Ghauri on the petition of a creditor other than the bank. He was automatically discharged from bankruptcy two or three years later.
8. On 19 August 1998, Mr Khan-Ghauri commenced no less than four actions in the Queen's Bench Division against the bank and four other defendants. The writ and statement of claim in each of the four actions appear to be in substantially identical form. Paragraphs 1 - 5 of the statement of claim and paragraphs 10 - 13 complain of the taking of possession by the bank on 21 August 1992 of three Cardiff properties and their contents. Paragraphs 6 - 9 allege breaches of court orders. The first was that made by Mr Goldblatt on 14 January 1992. I have already stated why it does not appear that there was any such order. The other was that made by Judge Francis on 28 February 1992. Again, as I have already pointed out, there was no operative stay when the warrant for possession was executed on 21 August 1992. Paragraphs 14 - 15 allege that the defendants are responsible for the death of Mr Khan-Ghauri's brother, who unfortunately was injured when possession was taken of one of the properties in Cardiff. He suffered from asthma and he died in 1995. Even if the allegations made by Mr Khan-Ghauri in paragraphs 14 and 15 were established, that gives no cause of action to Mr Khan-Ghauri himself.
9. Paragraphs 16 - 22 seek to suggest that there were entities other than Mr Khan-Ghauri which had interests in the re-possessed properties and their contents. Mr Khan-Ghauri, as he puts in the description of himself in the title to the pleadings, trades as "Glam Homes Construction Group" (sometimes "Glam House Construction Group") and three other names. That means that he is, for example, Glam Homes Construction Group, which is not a separate entity. These paragraphs, therefore, do not disclose a cause of action.
10. Paragraphs 25-29 revert to the events of 21 August 1992 and claim loss.
11. Thus the substance of the claims being put forward in each action is that Mr Khan-Ghauri has a cause of action for loss in respect of his properties and his chattels arising out of the bank taking possession on 21 August 1992. On 8 September 1992 the Official Receiver wrote to Mr Khan-Ghauri, saying that he had heard that Mr Khan-Ghauri had brought proceedings and warning that any right of action accruing before the bankruptcy order would have vested in the Official Receiver as trustee in bankruptcy and that Mr Khan-Ghauri would not have authority to pursue such claims.
12. In September 1998 the bank served brief defences in which the bank said that the statement of claim disclosed no reasonable cause of action, was scandalous, frivolous or vexatious, might prejudice, embarrass or delay the fair trial of the action, and was an abuse of the process of the court. It said that it would issue a summons to strike out. It also denied the whole of the statement of claim and denied any entitlement to the relief claimed or any relief. Mr Khan-Ghauri responded by applying to strike out the defences, and the bank in turn applied to strike out the endorsement on each writ and statement of claim.
13. On 12 June 2000, Mr Khan-Ghauri made a very different application under section 320. That section, as subsection (1) makes explicit, applies when the trustee in bankruptcy has disclaimed property under section 315 of the Act. In such a circumstance it gives the court a discretion to order the vesting of the disclaimed property.
14. The various applications came before Mr Justice Pumfrey on 15 June 2000. The judge said that the causes of action on which Mr Khan-Ghauri was suing by the four actions were property vesting automatically under section 306 of the Act in the trustee in bankruptcy on the making of the bankruptcy order. He also said that there was no evidence that the trustee in bankruptcy had disclaimed the causes of action. He said that it was therefore plain that Mr Khan-Ghauri was not entitled to an order under section 320. The judge found no other sustainable cause of action. He found it unnecessary to deal with further submissions by the bank based on res judicata and the rule in Henderson v Henderson (1843) 3 Hare 100. The judge therefore dismissed Mr Khan-Ghauri's applications and dismissed the actions. He awarded the bank its costs on an indemnity basis.
15. Mr Khan-Ghauri appears in person before the court, as he did before the judge. He has gone to immense trouble in putting before me four bundles comprising nearly 1600 pages, as well as two lengthy skeleton arguments in support of grounds of appeal set out in 27 paragraphs. He plainly feels very aggrieved by all that has occurred. He is deeply upset by the death of his brother, which he attributes to the bank.
16. I hope he will forgive me when I say that he is plainly no lawyer. I give but one instance of how he has misunderstood what has occurred. One of the grounds for challenging Mr Justice Pumfrey's order, he says, is that the judge directed the bank to submit a transcript of the judgment so that the matter might be referred to the Attorney General against the bank's criminal actions on the request of the applicant, and that no transcript was submitted. In fact, the transcript of the exchanges between the judge and the bank's counsel at the end of the hearing shows that the judge indicated that he had in mind to refer the papers to the Attorney General to consider whether proceedings should be taken under section 42 of the Supreme Court Act 1981. The judge's plain intention was that consideration should be given by the Attorney General to making Mr Khan-Ghauri a vexatious litigant. The judge said that he would need a transcript, but that that could be ordered at a suitable moment. He did not order the bank to submit a transcript. It was for the judge to take such action as he thought fit in relation to making Mr Khan-Ghauri a vexatious litigant. Mr Khan-Ghauri has, I am afraid, completely misunderstood what the judge was saying, and it is certainly no ground for challenging the judge's order.
17. The main point taken by Mr Khan-Ghauri is expressed in paragraph 12 of his grounds of appeal in this way:

"....

(b) Mr Justice Pumfrey cannot accept the authorities quoted against appellant's personal insolvency to cover the unlawful actions of the bank and its agents for theft and manslaughter charges of Mr A H K Ghauri, which occurred on 21 August 1992 when the appellant was solvent.

(c) Further appellant had requested consent from the official receivers for the actions to proceed, which is still awaited.

(d) The bank and its collaborators cunningly obtained bankruptcy orders against the appellant on 23 June 1993 to cover up their unlawful actions and contempt of court for disobeying High Court rulings and orders as pleaded in individual actions."

18. This is an attempt to raise two matters. The first is the complaint about what occurred on 21 August 1992, although that was the subject of unsuccessful proceedings commenced in 1992. That cannot now be revived. Those proceedings have run their course. The second is that the applicant is complaining about the bankruptcy order that was made against him in 1993. There is no appeal from the bankruptcy order before this court (nor was it before Mr Justice Pumfrey). That is not a matter which is of any relevance in the case that was before the judge nor is it before this court.
19. Nowhere does Mr Khan-Ghauri answer the short and simple point on which the judge decided these applications. That was based on the fact that Mr Khan-Ghauri no longer has any cause of action in respect of what occurred on 21 August 1992 after the bankruptcy order was made. Mr Khan-Ghauri himself acknowledged the truth of that by making his application under section 320. The fact that he has requested but not obtained the Official Receiver's consent to his actions does not avail him. It follows that the judge unquestionably was right to decide the applications as he did. There is no real prospect of success on an appeal on this ground, nor is there any other compelling reason why the appeal should proceed.
20. Mr Khan-Ghauri also complains about the order for costs made against him on the indemnity basis. He says that there should have been full discussion for and against such an order. But as the transcript shows, he was invited to address the judge on the question of the basis of the costs order and Mr Khan-Ghauri did address the judge. It was well within the judge's discretion to hold that the basis for any costs order should be on the indemnity basis.
21. However, Mr Khan-Ghauri raises one other point which appears to have more substance. He has told me that he was a legally assisted person until his Legal Aid Certificate was discharged. He says that that occurred on 15 June, but there are no documents which are put before me to substantiate that assertion. If he was an assisted person, then it would appear to follow that no costs attributable to the period during which his Legal Aid Certificate was in force could be recovered from him until the court had determined the amount of his liability under section 11 of the Access to Justice Act 1999. That would have involved, I imagine, a consideration of Mr Khan-Ghauri's assets and income. The judge has not limited the order for costs to the period after the discharge. Because of the absence of documents I am not able to decide this point today. What I propose to do is to direct that there should be a further hearing of the application, but to limit that hearing to the single point relating to the fact that Mr Khan-Ghauri claims to have been in possession of a Legal Aid Certificate until very shortly before the judge's order, and to his ground of appeal that the judge could therefore not properly have made an order for costs against him in respect of the period whilst he was an assisted person without considering under section 11 what was the amount of his liability.
22. It may be that the bank will accept that the appeal should be allowed once this point has been drawn to its attention. If that were so, then it would be possible for the appeal to be allowed in relation only to this one point on costs without the attendance of the parties. I mention that as I would wish the incurring of further costs to be as limited as possible.
23. For the reasons given I shall refuse the application for permission to appeal on all grounds, save for the one matter relating to the discharge of the Legal Aid Certificate. I shall direct that there be a hearing of the application limited to that point, with notice to the bank. I will direct that, if permission to appeal is given, the appeal should follow immediately. I will estimate the time for the hearing of that further application and appeal as half an hour.
24. Mr Khan-Ghauri, I hope you have understood what I have said.
25. THE APPLICANT: Yes, my Lord.
26. LORD JUSTICE PETER GIBSON: I am not deciding the point on legal aid and whether permission should be given to appeal on the costs order because I do not have the documents. Do you follow?
27. THE APPLICANT: I understand.
28. LORD JUSTICE PETER GIBSON: But if there is to be a further hearing -- and it may be that the bank will accept that it is not necessary -- then it will come back just limited to that one point.
29. THE APPLICANT: Is there any documents I have to submit to the court?
30. LORD JUSTICE PETER GIBSON: If you have got your Legal Aid Certificate and the Notice of Discharge, then yes. The court ought to have those documents because that will show, you see, the period of time whilst you were an assisted person.
31. THE APPLICANT: I can mail it for your kind attention.
32. LORD JUSTICE PETER GIBSON: Not for my attention. Send it to the Civil Appeals Office, please.
33. THE APPLICANT: I will send that off as soon as possible. Is there anything else that your Lordship would like?
34. LORD JUSTICE PETER GIBSON: No.
35. THE APPLICANT: May I have the leave of your Lordship to go to the House of Lords against your judgment?
36. LORD JUSTICE PETER GIBSON: Mr Khan-Ghauri, there is no jurisdiction for the House of Lords to entertain an appeal from a refusal in open court by this court. I refuse it on the grounds that it cannot go further.
37. THE APPLICANT: And there is no chance to go to the European Court of Justice instead?
38. LORD JUSTICE PETER GIBSON: That is a matter for you.
39. THE APPLICANT: No, I would like to ask your kind advice.
40. LORD JUSTICE PETER GIBSON: I am not here to give you advice, Mr Khan-Ghauri.
41. THE APPLICANT: I am making an application that I should be given leave to appeal against this order.
42. LORD JUSTICE PETER GIBSON: You do not need leave to appeal from this court.
43. THE APPLICANT: I think there is a certain procedure that the Civil Appeals Office has to follow and send my documents to the European Court of Justice on my application.
44. LORD JUSTICE PETER GIBSON: I think not, but I am not in a position to advise you. You must take your own advice on that, Mr Khan-Ghauri.
45. THE APPLICANT: I appreciate that, my Lord, but may I ask, my Lord, that it should be added into the court order that I have asked your Lordship that I have made an application to appeal to the House of Lords and the European Court of Justice?

(His Lordship conferred with the associate)

46. LORD JUSTICE PETER GIBSON: The associate says that she will include the House of Lords, but not the European Court of Justice because there is no jurisdiction to give you leave in respect of going to the European Court of Justice.
47. THE APPLICANT:But your Lordship can definitely refuse it on any ground?
48. LORD JUSTICE PETER GIBSON: I have dismissed your application and that is the end of it so far as the English courts are concerned.
49. THE APPLICANT:I understand that, your Lordship, but --
50. LORD JUSTICE PETER GIBSON: I have finished your case. Thank you very much.
51. THE APPLICANT: Thank you for your time, my Lord.