England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MANCHESTER DISTRICT
(HIS HONOUR JUDGE MADDOCKS)

		Royal Courts of Justice Strand London WC2 Friday, 27th April 2001

Friday, 27th April 2001

1. LORD JUSTICE ROBERT WALKER: This matter has been listed as an application for permission to appeal and an extension of time for appealing from on order of His Honour Judge Maddocks made on 26th January last. That order either dismissed an appeal or refused permission to appeal from an order of Deputy District Judge Gregory made on 18th August 2000 striking out an action by Orchid Properties Limited, the claimants ("Orchid") against the first defendant, Mr Abdul Aziz Sawadi; the second defendant, Mr Roger Hughes and the third defendant, Mr Kevin Kearney.
2. I have expressed some doubt as to exactly what the effect of Judge Maddocks' order was because it is clear from the transcript of his judgment that he understood himself to be refusing permission to appeal rather than dismissing an appeal and his original order was amended on 5th March last apparently so as to produce that result. In that case there would be no jurisdiction in this court to hear any further application for permission to appeal. However, in order to save time and avoid any doubt in the matter I will treat this as an admissible application for permission to appeal.
3. Orchid is a company registered in the Isle of Man. It is represented today with my permission by Mr Matthew Dundon who effectively controls the company. Orchid was struck off the register at Douglas in the Isle of Man on 18th May 1992. It was restored to the register on 11th April 2000. Mr Dundon's statement in his revised skeleton argument that Orchid has at all material times traded in Liverpool must therefore be read in that context. His complaints largely refer to the quite remote past.
4. The proceedings which were struck out were commenced on 13th April 2000, that is just after Orchid's restoration to the register. The proceedings sought to have set aside as having been obtained by fraud an order made on 1st May 1996 by His Honour Judge Howarth after a trial of two actions which were heard together; that is action No.1993 2028 and 1994 S0279. A remarkable feature of the case (as Judge Maddocks observed) is that Orchid was not a party to either of those sets of proceedings, nor does Orchid's claim, which was struck out, provide any explanation of who the parties to the proceedings were or what the issues were. It is however possible from other papers in the bundle to get some idea of that.
5. Mr Dundon is or was a builder and property owner and he had many dealings, often through companies with only nominal share capitals, with residential and other property in Liverpool. He has for at least 12 years been engaged in litigation on many fronts against adversaries including the Inland Revenue, the Merseyside Police, the Birkenhead District Land Registry, a firm of solicitors and others.
6. The defendants in the proceedings are Mr Kearney, a consultant engineer who sued Mr Dundon personally in 1989 and obtained summary judgment against him for professional fees but then found himself involved in very lengthy proceedings including the obtaining of a freezing (or Mareva) order in order to try and enforce the judgment which he obtained; Mr Hughes who was, it seems, a director of Orchid; and Mr Sawadi, who has been described as a self-employed jobbing builder – although Mr Dundon has queried that description. Mr Sawadi obtained a judgment which was part of Judge Howarth's order of 1st May 1996 against Mr Dundon over a proposed joint venture into property through a company called Manor Park Builders Limited.
7. After giving judgment in 1996 Judge Howarth directed that the papers should be sent to the prosecuting authority. Subsequently Mr Dundon was prosecuted for fraud and perverting the course of justice. He has told me that last July he pleaded guilty at Preston Crown Court and was sentenced to a term of imprisonment. The deputy district judge struck out the claim because it did not make out a comprehensible case raising arguable issues of fraud which is a serious claim which must of course be precisely alleged as well as being strictly proved.
8. Judge Maddocks took the same view at the hearing of Mr Dundon's appeal on behalf of Orchid. He said:

"It is not on the face of it clear to me, and I am doubtful, though Mr Dundon says otherwise, whether it could be clear to the defendants precisely what the basis of the case was. It is simply a series of allegations of fraud. It is not in a form to which defendants could properly be expected to respond. I have endeavoured to ascertain the true nature of the case but, apart from that which I have said, I fear I have been unsuccessful."

9. The judge then referred to the possibility of an amendment of the pleadings but concluded that that was not feasible. He said:

"Having read the claim and the particulars of claim, it seems to me to be quite wrong to allow this case, which is framed as being one of deceit, to proceed at all. In a case of that sort it is absolutely vital that there should be complete clarity as to what is alleged. So far as appears, in my judgment, this is simply an attempt, under the cloak of a company which at the time of the action had been struck off and did not exist, to relitigate the previous litigation which had been concluded after a full trial and a full hearing before His Honour Judge Howarth."

10. Even assuming in Orchid's favour that this is an admissible appeal it would be a second-tier appeal from the concurrent decisions of the deputy district judge and a very experienced circuit judge, Judge Maddocks, who either disallowed or dismissed the appeal.
11. By section 55 of the Access to Justice Act 1999 a second-tier appeal may be heard by the Court of Appeal only if the court is satisfied that it would raise an important point of principle or practice or for some other compelling reason. In my view this application does not meet that demanding test. Indeed in my view it would fail even on a less demanding test; it would be a hopeless appeal, and I must, and do, dismiss the application.
(Application dismissed; no order for costs).