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 THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Curtis)

		Royal Courts of Justice Strand London WC2 Wednesday 14th February, 2001

1. LORD JUSTICE CHADWICK: This is an application to reinstate applications for permission to appeal against orders made by Curtis J on 15 October 1999. By the first of those orders, made under reference IHQ/99/926, the judge dismissed an appeal from an order made by Master Leslie on 16 June 1999 in proceedings brought by the applicant, Mr Robert Thorogood, against Mr Richard Walker, a solicitor, and Messrs Rooks Rider, a firm of which Mr Walker is or was a partner. Master Leslie had struck out the applicant's Statement of Claim in those proceedings; and ordered that the action be dismissed with costs.
2. The second of those orders, under reference IHQ/99/1312, was in the Grepe v Loam form. I will read it. It was ordered that:

"The Claimant [Mr Thorogood] not be allowed to commence any further proceedings or to make any further applications or to take any steps in this Court or in any county court against the Defendants concerning or relating to these proceedings or the conduct thereof or any matter raised in these proceedings or concerning or relating to the validity of the summary judgment obtained on the 31st day of August 1994 or to the validity of any other orders or judgments obtained in the proceedings in Clerkenwell County Court with case number CK400928 or the truth or accuracy of the matters decided or raised in those proceedings by the Second Defendant herein without leave of a [High Court] judge being first obtained."

3. The order then goes on to provide, as is usual in these orders, that an application for leave to be made to the judge, Curtis J, to be dealt with on paper; and that until leave is granted, any claim form, application notice or other document within the scope of the order served upon the defendants or their legal representatives shall not have the effect of requiring them to appear; and the application made by such form or notice be dismissed without being heard.
4. In order to understand the scope of that order, it is necessary to make brief reference to the history of this matter. Judgment was obtained by the solicitors against Mr Thorogood in the Clerkenwell County Court on 31 August 1994 in the proceedings CK400928 on a claim against him in respect of costs incurred by the solicitors when carrying out instructions in relation to a dispute against the National House Builders' Registration Council which went to arbitration. The position is explained in a judgment of Nourse LJ, given on an earlier application by Mr Thorogood to this court on 11 September 1997, to which Curtis J made reference in his judgment of 15 October 1999. Nourse LJ said this:

"The Plaintiffs [in the County Court action] are a firm of solicitors who acted for the Defendant's mother in 1992 and 1993 in connection with an arbitration in relation to substantial building defects at her home in Paddock Wood. They claim that the Defendant is and was at all material times contractually liable to pay their professional fees and the disbursements incurred by them in so acting. The Defendant failed to pay the bills duly rendered to him, and on 14th February 1994 the Plaintiffs issued a summons in the County Court claiming £8,125.65. On 2nd March 1994 the Defendant, who was then acting in person, put in a Defence and Counterclaim. It is instructive to see how his case was then put. By way of Defence he said:

`I dispute the claim on the basis of professional misconduct. The full details will be disclosed at the hearing and I will be applying for legal aid.'

By way of counterclaim he said:

`The counterclaim will be for more than the Plaintiffs' claim against me. The amount is undetermined as the consequence of the professional misconduct has not yet been finalised, but does encompass the circumstances directly attributable to the repossession of my family home and to Mr R Fernyhough's letter dated 26th February 1993.'"

5. Judgment on that claim was entered against the applicant, Mr Thorogood, by the District Judge at Clerkenwell County Court. Mr Thorogood sought to appeal by an application to His Honour Judge Marr Johnson. That application was dismissed on 3 February 1995. An application to appeal Judge Marr Johnson's order was dismissed by the Court of Appeal in September 1997. It was on that application that Nourse LJ gave the judgment to which I have referred.
6. The present proceedings were seen by Curtis J as an attempt to reopen that litigation. It is that which led him to make the Grepe v Loam order in the form in which he did.
7. Notice of application for permission to appeal against both orders of 15 October 1999 was given within time on 12 November 1999. The applications were listed for hearing before Roch LJ on 17 March 2000. In the meantime, a few days earlier, on 14 March 2000, the applicant had been adjudged bankrupt in the Croydon County Court. As appears from the official receiver's report dated 19 April 2000, the bankruptcy order was made on the petition of the solicitors who were the defendants to the proceedings which Master Leslie struck out on the basis of a debt in the sum of £34,747 in respect of legal costs.
8. As I understand the position, those legal costs were not the same debt as the debt which had been sued for in the Clerkenwell County Court some six years earlier. That that is the position seems clear in the circumstances that, following the County Court judgment a bankruptcy order had been made against Mr Thorogood on 4 December 1995. The original debt must now be a debt in that bankruptcy.
9. The applicant did not appear at the hearing before Roch LJ on 17 March. The Lord Justice, for reasons which he gave in a short judgment delivered that day, adjourned the application for 56 days. It appears that the applicant had written to the court on 16 March, seeking an adjournment. The court also had before it a letter from the Insolvency Service, of the same date, which set out the fact of the bankruptcy and the fact that the official receiver, as receiver and manager of the bankruptcy estate - and I should add as ex officio trustee - had not had the opportunity of completing his enquiries or calling a meeting of creditors. So the official receiver was seeking an adjournment so that he could inform himself whether the application for permission to appeal should be pursued. The official receiver sought a period of 56 days for that purpose.
10. It is clear to my mind that, at least in relation to the appeal against the order striking out the proceedings, Roch LJ recognised that the cause of action in those proceedings, if any, would have vested in the bankruptcy's trustee in bankruptcy; and so it was appropriate to give the official receiver the 56 days which he sought in order to enable him to investigate the position.
11. The matter was relisted before Latham LJ on 24 May 2000. Again the applicant did not appear and was not represented. The position, as it appeared to Latham LJ, is described in paragraph 2 of the judgment which he gave on that day.

"The case was called on before me this morning but there was no appearance by Mr Thorogood. The court had received a letter by way of facsimile transmission yesterday in which the applicant indicated that he wished the matter to be adjourned on the basis that he had obtained legal aid which would enable him to apply to set aside a bankruptcy order which had been made against him."

12. The Lord Justice went on, at paragraph 3:

"When I was informed of the consequential request by the applicant that the matter be taken out of the list, it seemed inappropriate to do so without knowing more about the circumstances in which the proposed proceedings in relation to the official receiver might impact on the present proceedings and, in particular, because this is a matter which needs to be disposed of as soon as possible."

13. He referred to the fact that the applications had been adjourned once already by Roch LJ on 17 March.
14. In those circumstances Latham LJ took the view that there was no good reason to grant an adjournment. He held that there were no grounds upon which permission to appeal against either of the orders made by Curtis J should be given; and he refused those applications, made under the notices of 12 November 1999.
15. The position, therefore, is that the applications for permission to appeal have been disposed of at a hearing of which the applicant had notice; but which he chose not to attend. He now seeks to have those applications reinstated.
16. The applicant is now represented by counsel, Mr Ian McCulloch, in relation to the application to reinstate the application for permission to appeal against the Grepe v Loam order. Mr McCulloch tells me that he does not represent the applicant in relation to the application to reinstate the application for permission to appeal against the order dismissing the appeal against the order made by Master Leslie. Mr McCulloch has explained that the applicant accepts that the cause of action has vested in the trustee in bankruptcy. The trustee in bankruptcy does not seek to pursue the applications. Mr McCulloch has no instructions; but he informs me, in the presence of Mr Thorogood, that Mr Thorogood does not himself seek to pursue that application on his own account. I need say no more about that application.
17. The application that is pursued, therefore, is for permission to appeal against the Grepe v Loam order. The first hurdle which Mr McCulloch would need to surmount is to persuade the Court that there was some good reason why Mr Thorogood did not appear before Latham LJ on 24 May 2000 to make the application when it was listed for hearing; in circumstances that he had notice of it. The only reason for his non-appearance in that day that can be identified in the papers is that given by Latham LJ in the judgment that I have read: namely that Mr Thorogood had written a letter to the court on the previous day asking that the matter be adjourned on the basis that he had obtained legal aid to set aside the bankruptcy order. However, the Grepe v Loam order was an order made against Mr Thorogood personally; whether or not he was bankrupt was irrelevant to the question whether that order ought to be the subject of an appeal. He obtained no adjournment in response to his letter. He chose not to appear. No other reason has been given for his decision not to appear.
18. In those circumstances, an application for reinstatement ought not to be granted unless the Court were persuaded that there was a very strong case for the belief that, had Mr Thorogood appeared and put before the court the arguments which are now put on his behalf by Mr McCulloch, the Court would have reached a different conclusion and would have granted permission to appeal.
19. In my view, there is no case that can be made out in that respect. Mr McCulloch submits that the order is too wide because it seeks to prevent Mr Thorogood from making any applications in his bankruptcy. It is plain, to my mind, that the order does not have that effect. The question of Mr Thorogood's bankruptcy could not have been in the mind of Curtis J at the time when he made the order in October 1999. The bankruptcy petition itself was not presented until a month or so later.
20. The effect of the order is to prevent Mr Thorogood, without leave of the court, from challenging the judgment obtained on 31 August 1994; or the validity of any other orders or judgments obtained in the Clerkenwell County Court in case CK400928; or the truth or accuracy of matters decided or raised in those proceedings by the second defendant. If the application which he seeks to make in his bankruptcy involves a challenge to the summary judgment of 31 August 1994, or to the validity of other orders or judgments in the proceedings in the Clerkenwell County Court, or to the truth and accuracy of the matters decided in those proceedings, then he will require leave. If applications in the bankruptcy do not involve a challenge to those matters, then there is nothing in the Grepe v Loam order which prevents those applications from being made.
21. The proper course for Mr Thorogood, in the circumstances, is not to seek to appeal the Grepe v Loam order to this Court; but to apply to Curtis J, if he thinks it appropriate, for an order varying the Grepe v Loam order to take account of the fact that he is now bankrupt; or to apply to the judge specifically for leave to make any particular application which he seeks to make in the bankruptcy and which would otherwise be within the inhibition imposed by the Grepe v Loam order. It is, of course, a matter for the judge whether to vary his order or to grant leave in the circumstances which he is asked to consider.
22. There is no real prospect of success that this Court would think it right to interfere with the Grepe v Loam order as made. An application for permission to appeal that order would, to my mind, be bound to fail. In those circumstances, there is no basis upon which it could be right to reinstate the application for permission made by notice of 12 November 1999.
23. In those circumstances, I record that the application to reinstate the application for permission to appeal against the order made under reference IHQ/99/926 is withdrawn, I direct that that application should not be pursued further. I refuse the application to reinstate the application for permission to appeal against the Grepe v Loam order made under reference IHQ/99/1312.
ORDER: Application to reinstate the application for permission to appeal against the order made under reference IHQ/99/926 withdrawn; application to reinstate the application for permission to appeal against the Grepe v Loam order made under reference IHQ/99/1312 refused; legal aid assessment of the applicant's costs. (Order not part of approved judgment)