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
CHANCERY DIVISION
(Mr Justice Neuberger)

		Royal Courts of Justice Strand London WC2
		Tuesday, 20 February 2001

1. LORD JUSTICE CHADWICK:This is an application for permission to appeal against an order made on 14 February 2001 by Mr Justice Neuberger, sitting in bankruptcy proceedings No. 11216 of 1996.
2. The applicant, Mr Gedaljahu Ebert, was adjudicated bankrupt on 22 July 1997 on the petition of Mr Ralph Wolff. The bankruptcy petition, on its face, was founded on a judgment debt in the sum of £55,894. The judgment which gave rise to that debt was said to have been given in proceedings brought by Midland Bank plc in 1995 against Mr Ebert as one of two guarantors of the liabilities of Europride Ltd, which had gone into administrative receivership on 6 October 1992 and had subsequently commenced winding up. The petitioner, Mr Ralph Wolff, is the brother of a Mr Morris Wolff, who had been the other co-guarantor, with Mr Ebert, of the liabilities of Europride Ltd. Mr Ralph Wolff claimed as assignee of the judgment debt obtained by the bank. In due course Mrs Yvonne Venvil, an insolvency practitioner employed by the firm of Carter Backer Winter of Highgate, London N19, was appointed trustee in bankruptcy.
3. Mr Ebert is the subject of Grepe v Loam orders made by Mr Justice Neuberger on 7 July and 23 October 1998 and affirmed in this Court on 30 March 1999. For a fuller account of the position reference may be made to the judgment of this Court (Lord Woolf MR and Otton and Aldous LJJ), which is reported at [2000] Ch 484. In particular, the Court addresses the circumstances in which Mr Ebert was made bankrupt at pp.499E-H to 501E. Mr Ebert is also the subject of an order made under section 42 of the Supreme Court Act 1981.
4. The present application arises from the sale of the dwelling house formerly occupied by Mr Ebert and his wife at 23 Cranbourne Gardens, London NW1. The trustee in bankruptcy has obtained possession of that house and is proposing to complete the sale of it tomorrow, 21 February. Hence the urgency with which this present application is made.
5. Its importance to Mr Ebert is emphasised by the letter which he has written to the Civil Appeals Office and which bears today's date. The letter is headed:

"URGENT Crime against Humanity High Treason"

6. In that letter Mr Ebert asks for a hearing before three senior Lords Justices - preferably to include the Lord Chief Justice of England and Wales, Lord Woolf. The best that could be done in the limited time available was to convene the present constitution, Lord Justice Buxton and myself. We have heard this application at very short notice.
7. The application for permission to appeal is coupled with a request that the court makes an order restraining the completion of the sale of 23 Cranbourne Gardens; an order annulling the bankruptcy order of 22 July 1997; and an order that the bankruptcy petition be sent for trial before a jury.
8. The order against which Mr Ebert seeks permission to appeal, made by Mr Justice Neuberger on 14 February 2001, was made on an application, by letter, from Mr Ebert dated 13 February. By his order of 14 February the judge dismissed that application. He did so for reasons set out in a judgment delivered that day, of which a transcript has been provided at public expense.
9. The first task, I think, is to identify what Mr Ebert sought in the application which was before the judge. For that purpose it is necessary to look at the letter of 13 February 2001 which Mr Ebert addressed to Mr Justice Neuberger personally. The letter is headed:

"ENOUGH IS ENOUGH

CRIME AGAINST HUMANITY

`UNLAWFUL EVICTION' `FRAUD' & `THEFT'

`HIGH REASON' `PERJURY' `FORGERY'"

10. The letter begins by referring to a judgment which Mr Justice Neuberger had delivered a week or so earlier, on 7 February 2001. It makes a number of criticisms of that judgment. It then goes on to request the judge to produce three documents. First, the judgment obtained by the Midland Bank against Mr Ebert, to which the bank referred in a skeleton argument delivered on its behalf dated 2 June 1998; second, the bank statement to support the debt claimed, dated 25 January 1995, and referred to in the statement of claim served by the bank in those proceedings; and third, the assignment of the judgment debt from the bank to Mr Ralph Woolf. The letter asks, also, for evidence of the payment made by Mr Wolff for the assignment and the bank statement in which that payment is credited. The letter goes on in these terms:

"Alternatively if his Lordship cannot produce the Judgment, Bank Statement and the Assignment to order forthwith:

(a)annulment of the Bankruptcy Order obtained by fraud and made without jurisdiction.

(b)to set aside the Possession Order and re-instate the position ` forthwith.

(c)to arrange forthwith a rented Accommodation as in the Application 6th February 2001.

(d)to return all the family private belongings and the Assets that have been stolen.

(e)to order a full trial by jury of torture, harassment, fraud and defamation for damages purposes."

11. Failure to comply with that request is said to lead to the conclusion, or consequence, that the judge would be guilty of high treason, perjury, theft and prevention of the due course of justice.
12. Those were the matters which the judge had to consider on 14 February 2001. In his judgment he dealt with the matter in this way. He indicated that he did not propose to go into the history; which, as he said, had been gone into on a large number of previous occasions. He went on:

"Mr Ebert seeks to raise all sorts of points that he has raised time and again; they have been disposed of by me and, more importantly, by the Court of Appeal. He has made since 5th July 2000, according to my Clerk's records which are incomplete, over 40 applications to me orally or in writing. I know the list is incomplete because it records one written application having been made on 30th January and one oral application on 6th February; and from my own recollection I can say that there were a total of six applications in writing dated with those dates. Since 1997 he has made well over 150 applications.

The history of Mr Ebert's obsessive attitude to the unfortunate circumstances in which he finds himself is recorded in a large number of judgments. Not only has he been the subject of a number of extended Grepe v Loam orders, but he is now a vexatious litigant. All his applications are to be made to me because the history is so drawn out that it is sensible that a single judge deals with his applications. Mr Ebert feels that that is oppressive on him, because, as he rightly says, he has in practice failed in every application he has made to me. Either I have refused him leave under the Grepe v Loam or Vexatious Litigant Orders to make the application, or I have permitted him to make the application on one or two occasions, but then rejected it."

13. The judge then referred to the suggestion that if he did not do as Mr Ebert was then requesting he would be guilty of high treason, perjury and theft. But he went on:

"I am afraid I do not propose to deal with each of his contentions because I have dealt with them many times before and there is nothing in them. His contentions are made with a view to establishing the non-existence of the judgment upon which he was made bankrupt, alternatively showing that the judgment debt was subsequently paid, alternatively demonstrating that the basis for the judgment debt never existed."

14. The judge then recorded a number of concerns which he felt necessary to address. The first concerned the practice that had been adopted hitherto of providing a transcript of every judgment of his in these proceedings at public expense to Mr Ebert. He thought that that practice should stop. He was concerned also that Mr Ebert's applications were becoming increasingly more intemperate. His third concern was expressed in these terms:

"My third concern is that Mr Ebert has raised the point that if I refuse him permission to apply to the Court of Appeal for permission to appeal my decision, then he has no access to the Court of Appeal because he is a vexatious litigant. He says that is contrary to his human rights. I strongly suspect that there is nothing in that point at all. Part of the purpose of making somebody a vexatious litigant is to stop the courts being bothered with hopeless applications to the full extent possible consistent with that person's right of access to the courts."

15. Nevertheless, the judge thought that the appropriate course, in the circumstances, was to give permission under section 42 of the Supreme Court Act 1981 for an application to be made to the Court of Appeal for permission to appeal; but limited only to that. I shall return to the question whether it can be appropriate in the light of the Human Rights Act 1998 to refuse leave to make an application for permission to appeal in a case in which the applicant is subject to an order under section 42 of the 1981 Act.
16. The present application is made in a notice dated, I think, 19 February (although it could be 14 February - the figure is indistinct) and supported by a typed document entitled "Application, Statement of Truth", which is signed by Mr Ebert and bears today's date, 20 February. The typed document sets out the orders which Mr Ebert asks the court to make; including, as I have indicated, the urgent order prohibiting the completion of the sale of 23 Cranbourne Gardens tomorrow.
17. The grounds of the application are these. The first ground is the familiar one that the bankruptcy order was made without jurisdiction on a forged instrument, it being said that no debt from Mr Ebert to the petition creditor ever existed. The second ground is that Mr Ebert has never received proof of that debt. There is a complaint that he has not received a fair trial. The third ground is that the bankruptcy order or any judgment was obtained by fraud for a cash payment and that any commercial interest by a corrupt judge is "nullity and void". I can say at once that Mr Ebert has not pursued, in his oral submissions before us, contentions of bias or corruption. I need say no more about them.
18. The thrust of his application to us is the familiar one that the bankruptcy order ought never to have been made in 1997 because there was no sufficient evidence of a debt owed to the petitioner; including, as Mr Ebert would have it, no evidence that the judgment was ever entered. If made out, that would have been a ground either to appeal the bankruptcy order when it was made or to seek, under section 282(1) of the Insolvency Act 1986, an order annulling the bankruptcy order.
19. The position is that Mr Ebert has sought an order annulling the bankruptcy order on numerous occasions. In particular, he has brought the matter to this Court on an application for permission to appeal against the refusal of Mr Justice Neuberger to annul the order on 10 November 1997. The application for permission to appeal came before Lord Justice Potter and Lord Justice Mummery on 25 March 1998 and it was refused. It was refused for reasons set out in the judgment of Lord Justice Potter; which was, itself, subsequently referred to by this Court in the proceedings reported at [2000] Ch 484, to which I have already referred. This Court, at p.501B-C, said:

"It is quite clear from the judgments of Neuberger J and of Potter LJ that the validity and effect of the assignment was at the very heart of the proceedings to annul the bankruptcy order. If, as Mr Ebert contends in his originating summons, the assignment was ineffective and invalid, then it is clear that no bankruptcy order should have been made. That matter has been investigated at length by Neuberger J and this court has refused leave to appeal against his decision. It follows that it would be an abuse of the process of this court to allow the matter to be relitigated by Mr Ebert, albeit in an action against the Midland Bank."

20. The Court went on in that judgment (which was the judgment of the court) to say this, at p.501D:

"The second and third orders sought in the originating summons relate to the debt owed to the Midland Bank by Europride Ltd in liquidation. Again, that debt was the foundation of the bankruptcy proceedings. If there was no debt, then there was no basis for the judgments that were obtained by the Midland Bank against Mr Morris Wolff and Mr Ebert. Having regard to those judgments it would be an abuse to allow Mr Ebert to reopen the matter in the originating summons proceedings."

21. I have a recollection of having said something to very similar effect in a judgment given in this Court on an earlier application by Mr Ebert for permission to appeal in related proceedings. Be that as it may, the point was revisited by this Court only last week. Mr Ebert had made an application for permission to appeal in proceedings brought against the Official Receiver and the trustee in bankruptcy, which came before Lord Justice Robert Walker and Lord Justice Keene. Lord Justice Robert Walker, who gave the principal judgment, went into the history in considerable detail, as appears from the transcript of his judgment. He pointed out that there had been a number of errors both by Mr Morris Wolff, Mr Ralph Wolff and their solicitors and by the court in connection with the earlier proceedings. He said this:

"It is right that [the matter] should be dealt with at some length, especially in view of the deplorable number of errors that have been made over the years."

22. But having gone into the matter in detail, he reached the conclusion that it must now be regarded as settled that the bankruptcy order was properly made on the basis of a petition debt which was well-founded and was capable of being the subject of a bankruptcy petition presented by the petitioner. He said this:

"... this application, and the amount of time it has taken this court both to prepare for it and to hear it, does illustrate yet again how a small number of determined litigants in person, who will never take no for an answer, make wholly disproportionate demands on the resources of the civil justice system, to the possible detriment of other litigants."

23. Mr Ebert's complaint, reiterated on a number of occasions, is a very simple one. He says, in effect, "If I am to be treated as a bankrupt, then show me evidence of the debt upon which the bankruptcy order was made; show me evidence of the assignment under which the petitioner claimed to be entitled to enforce that debt; and show me evidence that Europride ever owed money to the Midland Bank." Those were all matters which he was entitled to raise on the bankruptcy petition itself. He was entitled to raise them at an earlier stage, on an application to set aside the statutory demand which, necessarily, preceded the bankruptcy petition. He was entitled to raise them on the application under section 282 of the Insolvency Act 1986 to annul the bankruptcy order. But he is not entitled to go on raising them in repeated applications, both to Mr Justice Neuberger and to this Court. The administration of justice cannot be carried on unless it is accepted that there is finality to litigation. Mr Ebert has to accept that his complaints have now been considered in this Court and below on numerous occasions. He may not like, or accept, the conclusions which have been reached; but he must accept that those conclusions have been reached.
24. In those circumstances I am satisfied that Mr Justice Neuberger took the only course that was open to him on 14 February 2001; when, as he said, he was not going to deal with the familiar contentions raised before him because he had dealt with them many times before and because both he and this Court had reached the conclusion that there was nothing in them. The judge cannot be required to go on revisiting material which has already been the subject of examination both in the High Court and in this Court. Further, it would be wrong for him to do so.
25. I am, therefore, satisfied that there is no real prospect that the Court of Appeal would think it right to interfere with the conclusion reached by Mr Justice Neuberger on 14 February 2001. If there is no real prospect that the Court of Appeal would think it right to interfere, then there is no basis upon which it could be right to give permission for a yet further appeal in relation to this bankruptcy order. If there is to be no further appeal, then there is no basis for making an order prohibiting the completion of the sale of the property at 23 Cranbourne Gardens as an interim measure. That could only be justified on the basis that there was some prospect that the bankruptcy order would be annulled, thereby destroying the trustee's title to sell the property.
26. As I have indicated earlier in this judgment, Mr Justice Neuberger took the view that he should give leave to make this application for permission to appeal notwithstanding the existence of an order under section 42 of the Supreme Court Act 1981. He took that view because Mr Ebert had urged upon him that refusal of leave to apply to this Court for permission to appeal would infringe Mr Ebert's rights under the Human Rights Act 1998 and the Convention. The judge expressed the view that he strongly suspected that there was nothing in the point; and he drew attention to the very obvious fact that, if there is anything in the point, the protection which section 42 of the 1981 Act is intended to provide against continuous abuse of the court system is largely illusory.
27. In my view - although the point does not arise directly on this appeal because the judge gave the leave which he was asked to give - it is a point which this Court ought to take the opportunity to consider. This application is a convenient opportunity to do that. But that is better done after further consideration and a review of the relevant statutory and other material. I would propose, therefore, that the court stand over further consideration of that point; and that it should be the subject of a judgment or judgments in writing to be delivered at a convenient time.
28. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord and there is nothing that I wish to add. I agree with the order that he proposes and with what he proposes as to the further judgment to be given by this court.
Order: application for permission to appeal dismissed; section 42 point stood over for further consideration and judgment in writing to be delivered at a time to be notified; application for a transcript of this judgment at public expense refused; on an application for permission to appeal to the House of Lords being made, the court stated that there was no right of appeal to the House of Lords against an order refusing permission to appeal to this court, but that, if there were, the court would not be minded to give permission. (Order does not form part of approved Judgment)