England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(Mr JUSTICE BURTON)

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

Tuesday, 20th February 2001

1. LORD JUSTICE THORPE: On 10th May Lord Justice Sedley, sitting on his own, granted permission to appeal to Mr Angeli who was then represented by Mr Wardell of counsel. The application before this Court related to a judgment given by Burton J on 27th January 2000. That judgment was itself upon an appeal which Mr Angeli brought against the order that had been made by Master Hodgson. That order brought to a close proceedings that Mr Angeli had initiated against a number of defendants, including Mr WJJ Knight, as first defendant, and Barclays Bank PLC, as second defendant.
2. Mr Knight was Mr Angeli's trustee in bankruptcy and the writ had been issued on 24th March 1998, but it seems that, since the claim was to be a claim in fraud, counsel responsible for the pleading had asked Mr Angeli to obtain further information leading to ex parte renewal of the writ on three occasions, namely 23rd July, 22nd November 1998 and 4th January 1999. That renewed writ was finally served on 28th April 1999.
3. The application brought by Barclays Bank was to challenge the extensions of the writ. That they did as the first step that they took in the proceedings. However, the position of Mr Knight, the trustee in bankruptcy, was different. The first step that he took in the proceedings was to seek an extension of time and then to issue an application to strike out the writ and statement of claim on three grounds: first, that Mr Angeli needed leave to bring proceedings against the trustee in bankruptcy; secondly, that the claim was vexatious and an abuse of process; and thirdly, that it was statute-barred.
4. It was these two applications which came before the Master. Mr Angeli has had during the course of these troubled proceedings various firms of solicitors and various counsel acting for him and on important occasions he has appeared as a litigant in person. But he tells us that there was a clear understanding that the two applications, although attacking the same writ and statement of claim, would be taken separately since they were brought by separate defendants and since they relied upon separate foundations. However, it is perfectly clear from the note taken by Mr Angeli's then solicitor, Miss Kathy Sillett, that at the hearing before the Master on 3rd November 1999 the first and second defendants, as well as Mr Angeli, were all represented by counsel. One of the other defendants was also before the Court, the fourth defendant. It is quite clear from the note of Kathy Sillett that Mr Angeli's then counsel, Mr Lamacraft, sought to insulate the two applications. He objected to what seems to have been the Master's inclination that everybody concerned with this action should be in the room together throughout any application that had to be decided. However, his objections were overruled by the Master who seemingly secured a measure of consensus that the bank application challenging the validity of the orders extending the writ would be heard first.
5. Miss Stubbs who represents the first defendant before us today, and who seems to have represented the first defendant consistently throughout on any hearing of note, indicated to the Master that as well as the application that had been brought to strike out, she too wished to adopt the Bank's application and submission in relation to the validity of the extensions, and she successfully sought leave to amend her application accordingly.
6. The Master then went on to hear and determine the second defendant's application which he did against Mr Angeli and against the submissions advanced by Mr Lamacraft. It seems that Mr Angeli was understandably perturbed at the way the tide was running and he left the room. It seems from a statement very recently made by Kathy Sillett that she was concerned at his withdrawal, worried that he had left the room, and accordingly was distracted from following the exchanges between the parties and the Court in the aftermath of the Master's ruling in favour of the Bank. But the note that she furnished to her client more or less contemporaneously, namely on 23rd December, reads as follows:

"Once Master Hodgson had given judgment in favour of Barclays and given Knight leave to amend his application notice, we were unable to resist an order in favour of Knight in the same terms."

7. That record is perfectly consistent with a lot of additional evidence which has subsequently come in as to precisely what happened in the Master's room on that afternoon. Miss Stubbs has filed a note of her recollection. She has obtained a statement from her instructing solicitor and a statement from the fourth defendant. She has approached the Master himself, and now very recently we have a letter from Mr Lamacraft. It is perfectly plain that once the issue had been decided in the Bank's favour, Mr Lamacraft conceded to the Master that he would not rely upon an argument that the first defendant had waived the right to jump on the second defendant's bandwagon by reason of the steps that he had taken following service upon him, namely his application for extension and his application to strike out. As Mr Lamacraft has said in his recent letter:

"I also indicated that I accepted that the remainder of Mr Knight's amended application was an attack on the jurisdiction of the Court so that it did not amount to a waiver of any irregularity in the proceedings."

8. If there were any doubt at all as to whether or not a concession had been made by Mr Lamacraft, it is only necessary to look at the order made by the Master on that afternoon. Manifestly he could not have made the same order in favour of the first defendant as he made in favour of the second defendant had the point been taken that it was not open to Mr Knight to mount a belated application on the back of the Bank in the light of the different steps that he had taken in reaction to service.
9. The appeal to Burton J was presented by Mr Angeli in person, and it is manifest that he ran the appeal on the basis that the Master had reached the wrong conclusion on the Bank's application challenging the validity of the orders extending the writ. It is plain that the judge considered Mr Angeli's submissions at length, but he did not call on Miss Stubbs to respond since he was not persuaded that there was any merit in Mr Angeli's submission. Accordingly, he delivered a judgment explaining his reasons for rejecting Mr Angeli's case of good cause for extension.
10. The application before this Court for permission proceeded on the basis that Burton J had been wrong to come to that conclusion and, as Sedley LJ said, that that submission was advanced economically and most helpfully by Mr Wardell. It did not find favour with Sedley LJ, but in the course of the exchanges it occurred to him that there was a free-standing point, namely whether there had been a waiver of the right to raise that challenge on the part of the first defendant. Sedley LJ put it thus:

"Mr Angeli, in his written submission to the judge, took the point that there had thus been a waiver of any challenge on the part of the first defendant, but the judge does not deal with it at all in his judgment. It appears to have been overlooked, possibly because it was not developed in argument."

11. Despite the fact that this was an application seemingly caught by section 55 of the Access to Justice Act 1999, Sedley LJ, having looked at the authorities thought that whilst it was doubtful whether merely seeking to extend the time for defence will constitute a waiver, there was authority that suggested that arguably the application to strike out might constitute waiver. He therefore gave permission limited to the point.
12. The constitution of an appeal then drew from Miss Stubbs her skeleton argument with a number of schedules. That skeleton was filed as long ago as 24th July and it seemed to establish the bald point, namely that the question of waiver had not been dealt with before Burton J and was not a live issue when the application for permission was judged by Sedley LJ for the very simple reason that it had been expressly conceded by counsel before the Master. She also drew attention to the fact that on 3rd March 2000, Mr Angeli had issued a fresh writ against all four defendants, and that on 27th June he had filed as a litigant in person his statement of claim. That calls in question the need for continuing litigation in relation to the first writ. I certainly am clear that Sedley LJ did not know of the issue of the second writ on 3rd March. Had he known of that he would not have said, as he did in paragraph 12, of his judgment:

"If, as he has previously asserted, he is still at the moment in time to issue a fresh writ, he may well be out of time by the time he has either lost the limited appeal for which I have given permission, or has won it and then perhaps been struck out on another ground."

13. Mr Angeli's response to the straight point taken by Miss Stubbs was very belated. It reached us when we came to Court this morning and we found a lot of papers on the bench, including a supplemental submission and a witness statement from Mr Angeli sworn yesterday, 19th February. We are obviously grateful to him for obtaining the letter from Mr Lamacraft which puts the point of concession beyond the smallest doubt, and he has also provided a further statement from Miss Sillett, to which I have briefly referred.
14. But it leaves him with little foundation to resist the points taken by Miss Stubbs. He endeavours to do so by asserting that the first defendant behaved in an unprincipled fashion before the Master, by jumping on the second defendant's bandwagon without proper prior issue of notice of application and evidence in support, and he asserts that before Burton J there was a de novo hearing and if anything was conceded before the Master then it was certainly not binding on him when he appeared as a litigant in person before the judge.
15. Mr Angeli has found it impossible to advance any reason for the continuing litigation in relation to this first writ other than to say that there are costs implications. He says that the steps that were taken by the first defendant prior to their unprincipled adoption of the second defendant's argument had involved him in very great legal costs, all of which were wasted and all of which would have been saved had the first defendant from the outset taken the same simple line as the second defendant.
16. All that may or may not be so, but plainly, if that point were to be taken, the time to take it was before the Master when Mr Lamacraft might have said well, you should not, sir, allow the first defendant to shift his ground in this way without giving full consideration to the costs implications. Seemingly nothing of that sort was said. It is perfectly apparent to me that this application for permission was obtained on an incomplete statement of fact to this Court. I make no criticism of Mr Wardell who was probably in total ignorance of the concession that had been made by his predecessor. I make no criticism of Mr Angeli who may indeed have been unaware of the nature and effect of that concession as a litigant in person who was in turmoil that afternoon in reaction to the course that events had taken. I do, however, think it is unfortunate that Sedley LJ was not told of the issue of the writ on 3rd March 2000. Again no criticism of Mr Wardell, who again may well have been unaware of that development.
17. Despite Mr Angeli's efforts, it is abundantly plain to me that the determination which Mr Angeli seeks to challenge, namely the determination of Burton J on 29th January, is simply not open to challenge on a more complete investigation of the surrounding circumstances than was available to Sedley LJ on 10th May. For all those reasons I would dismiss this appeal.
18. LORD JUSTICE CHADWICK: I agree. If the point as to waiver was to be taken it should have been taken at the hearing before Master Hodgson on 4th September 1999. It was a point which, if it had substance, distinguished the position of Mr Knight from that of Barclays Bank Plc. The Master's decision on Barclays Bank application would not have been determinative of the parallel application which Mr Knight had been given leave to make by an amendment made at the hearing itself. If the point had been taken, the Master would have had to consider it before reaching the conclusion that the result on Mr Knight's parallel application followed necessarily from the Master's decision on the Barclays application. It is clear beyond argument that the point was not taken before Master Hodgson. That is accepted by the counsel who were then instructed on behalf of both Mr Angeli and of Mr Knight.
19. That the point was not taken before Master Hodgson is confirmed by the memorandum which Mr Angeli's solicitor sent to him on 23rd December 1999. She recorded her understanding of the position in the terms to which Lord Justice Thorpe has referred. She wrote that, once Master Hodgson had given judgment in favour of Barclays Bank and given Mr Knight leave to amend his application notice, they were unable to resist an order in favour of Mr Knight in the same terms. If she had thought that there were the grounds upon which Mr Knight's position could be distinguished from that of Barclays Bank which were open to argument, she could not have written as she did. Plainly, in those circumstances, counsel could have sought to resist an order in favour of Mr Knight; whether or not they would have been successful in that resistance.
20. The point not having been taken before the Master, should it be entertained at this stage -- that is to say on a second appeal? In my judgment it should not be entertained at this stage. I have in mind that Sedley LJ has given permission for this appeal to be brought. But it is plain that it was never brought to his attention that the point which Mr Angeli wished to take on this appeal had not been taken before the Master. Indeed, as appears from the material now available, the point had been expressly abandoned before the Master.
21. It is important to keep in mind, it seems to me, that the point which Mr Angeli now seeks to take is that, by conduct, the first defendant, Mr Knight had waived his right to take the point upon which he succeeded before the Master. In substance, the point which Mr Angeli wishes to take is that a litigant cannot blow hot and cold. If he adopts a position in litigation which leads the other party to alter his own position then he cannot be allowed to resile from that position if that would cause prejudice to that other party or would otherwise be an abuse of process. But that is what Mr Angeli, himself, is now seeking to do. He is seeking to resile from the position which was taken by counsel on his behalf at the hearing before the Master on 3rd November 1999.
22. The Master relied on the position which had been taken before him on behalf of Mr Angeli in making the order which he made; and the first defendant, Mr Knight, relied on that position in the submissions which he made before the Master. In my view the point which Mr Angeli now seeks to take is not open to him. This appeal must be dismissed.

(Appeal dismissed with costs. The Court directs that the amounts to be paid by the appellant under any application for an order for payment of costs by Legal Services Commission with respect to proceedings in this Court should be determined by a costs judge in accordance with regulation 10 of the Community Legal Services Costs Regulation 2000. This Court is satisfied that it would be just and equitable that this appeal with provision for the costs of these proceedings should be made out of public funds. The Court directs that following the determination by a costs judge in any amount paid by the appellant and subject to its terms, the Master makes an order for payment of costs by the Legal Services Commission.)