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
(MR JUSTICE EVANS-LOMBE)

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

Friday, 27th April 2001

1. LORD JUSTICE ROBERT WALKER: This is an application by Mr Ronald Ogle who has appeared in person and addressed me with considerable skill. Mr Ogle is seeking to reinstate an application for permission to appeal from an order of Evans-Lombe J made on 17th November 2000. His application for permission to appeal was struck out following an order of Master Venne made on 18th January last and Mr Ogle's failure to lodge the requisite bundle by 8th February. Mr Ogle has put before me documentary evidence that he was at that time suffering from anxiety and depression and receiving medication. I accept that there are therefore grounds for the court to show indulgence in reinstating the application if, but only if, it appears to have a reasonable prospect of success.
2. The order of Evans-Lombe J dismissed Mr Ogle's appeal from four orders of Master Bragge made on 10th March 2000 but not perfected until 30th June 2000. The orders of Master Bragge struck out four actions by Mr Ogle against a firm of solicitors, Rowberry Morris. That firm has I think a number of offices but the office in question is at Staines in Middlesex. Rowberry Morris has acted in proceedings started as long ago as 1992 by Miss Susan Higgins, as she then was, (she later became Mrs Bell) against Mr Ogle. Those proceedings related to the sale under section 30 of the Law of Property Act 1925 and the division of the net proceeds of sale after equitable accounting of a property called Kilmarsh in or near Guildford in Surrey. That property was jointly owned by Mrs Bell (as she now is) and Mr Ogle and they lived there together for some years.
3. That apparently simple application to the court has led to a complex of further litigation including proceedings by Mr Ogle against the Treasury Solicitor over alleged dereliction of duties by members of the judiciary following on a Grepe v Loam order made by Sir Richard Scott, the Vice-Chancellor, on 26th February 1997. That jurisdiction is an inherent rather than a statutory jurisdiction to restrain a litigant from making repeated applications either in the same proceedings or (under an order which may be made in a wider form) in any proceedings relating to the same subject matter or associated subject matter: see Grepe v Loam (1887) 37 Ch D 168.
4. The order made by the Vice-Chancellor in this case was in a relatively limited form in that it prohibited only applications in the single set of proceedings to which I have referred, although I have to say that it is not to my mind immediately obvious at a first reading that its scope was so limited. That matter has given rise to a great deal of trouble and grief as far as Mr Ogle is concerned. The scope of the order was clarified beyond any possible doubt by the Vice-Chancellor on another occasion, on 9th February 1998.
5. Mr Ogle's proceedings against the Treasury Solicitor for judicial review of errors in giving the Grepe v Loam order a wider effect than had been intended came to an end with an order of this court (in the persons of Judge and Hale LJJ) refusing permission to appeal on 27th October 1999.
6. All that is to some extent merely background to the main application. Mr Ogle has a strong sense of grievance (and even that is putting it quite mildly) against Mrs Bell's former solicitors Rowberry Morris. He has made complaints against that firm and against individual members or employees of the firm. He has also made complaints against counsel instructed by that firm and a complaint to the Lord Chancellor's Department about the judicial appointment of a member of the firm.
7. Those various complaints are still in the course of being investigated and as is notorious such investigations tend to take a very long time. All that again is to some extent only background.
8. The four sets of legal proceedings by Mr Ogle against the solicitors were identified by Evans-Lombe J by the last three digits of their designated numbers: 602 (GU 902 602) was commenced by Mr Ogle in the Guildford County Court on 3rd June 1999. It was then transferred to another county court and subsequently to the High Court. Mr Ogle takes the view that it would be much better if it had remained in the Guildford County Court. That is now past history. The 602 proceedings alleged malicious falsehoods against the solicitors in respect of three matters as was explained in particulars served by Mr Ogle; that is first, a statement in a bill of costs which was produced by the solicitors and lodged on the taxation of costs in the original action commenced in 1992; second, a statement in a chronology prepared by counsel acting in the same action; and third, in a letter written by the solicitors on 24th June 1994 to another firm of solicitors, Bates Wells & Braithwaite, who were the solicitors then acting for Mr Ogle.
9. The defendant's solicitors contended that the publication of the first and second items are protected by absolute privilege, and that the third item, a letter from one firm of solicitors to another when both were engaged in the same litigation, could not give rise to a claim for malicious falsehood especially since no special damage was pleaded.
10. This morning Mr Ogle has contended that the third item, that is the letter of 24th June 1994, could not have been covered by absolute privilege and could have been covered only by qualified privilege. He argued that it would have been open to him to defeat a claim to qualified privilege by pleading express malice.
11. The second action was 603 (GU 902 603). It too was commenced in the Guildford County Court and transferred ultimately to the High Court. It was commenced on the same day, 3rd June 1999. It complained first of the solicitors' actions in removing from Kilmarsh on 12th May 1994 chattels belonging to Mr Ogle; and secondly, of delay in distributing a sum of money to Mr Ogle. Mr Ogle has said in his skeleton argument that Evans-Lombe J misunderstood that part of the claim. It may be that he did. It seems to me that it was forgivable that he did since paragraph 5 of the particulars of claim in the 603 proceedings states simply "defendants refused to release the £4,000". Mr Ogle has explained that that was the sum which Mrs Bell agreed to pay to him in respect of the other chattels which were not an issue in the matter which had been before the Vice-Chancellor.
12. Master Bragge treated the first complaint as groundless because of the terms of an order of District Judge Enser made on 25th March 1993 in the original proceedings providing for a sale under the order of the court. Master Bragge did not expressly address the other complaint in the proceedings 603. Evans-Lombe J did and may not have fully understood the point which the pleading of £4,000 was directed to. However, on any view, the £4,000 related to a sum due under a consent order of 4th May 1994. That matter provided for a payment of £4,000 to be made by Mrs Bell. It was her obligation; not that of her solicitors. Indeed Mr Ogle has told me that the solicitors had by that time ceased to act for Mrs Bell so that plainly the obligation was that of Mrs Bell herself.
13. The third action was 604 (GU 902 604). Again it was started on 3rd June 1999 in the Guildford County Court and was ultimately transferred to the High Court. The claim was apparently a wasted costs claim seeking to re-open the costs order made in the original proceedings, which was the costs order made by the Vice-Chancellor on 26th February 1997.
14. Mr Ogle has drawn attention to Rule 48.7.1 of the Civil Procedure Rules and suggested that it was right not to make a wasted costs claim until those proceedings had come to an end. That is indeed so, but when a wasted costs claim is made it should then be made in the proceedings to which it related. Evans-Lombe J said of this claim after quoting from the full and careful judgment of Master Bragge:

"I can only say that I am compelled to agree with the Master. No separate cause of action can lie in respect of costs in earlier proceedings which should have been disposed of in those proceedings. The new, or relatively new, jurisdiction to award against legal advisors, solicitors and counsel appearing in proceedings, orders that they pay part or all of the costs of those proceedings are made in the proceedings in which it is said that the costs were wasted. It follows, it seems to me, that the proceedings started by Mr Ogle No.604, in a separate action to recover what he complains of as being wasted costs against the solicitors - and I am told he wishes to join counsel now to this claim - cannot succeed. Accordingly this action also should be struck out and the Master's order doing so should not be disturbed."

15. The fourth and final action 521 (HC 99 04521) was started by Mr Ogle on 27th October 1999 following an incident on 6th October 1999. On that day Mr Ogle did not attend a court appearance because he was unwell and Mr Leatham, a partner in Rowberry Morris, called at his flat. Mr Leatham says that he called partly to see if Mr Ogle was unwell and partly to inform him of the outcome of the hearing. Mr Ogle takes grave exception to that visit calling it unwelcome and intimidatory. In his pleading Mr Ogle has described this fourth action as akin to a claim for consequential loss and his claim is for damages for mental distress, frustration and vexation. It appears to me that this fourth action must stand or fall with the others, or at any rate it cannot survive without the others.
16. Master Bragge gave a very full and careful judgment leading to his decision to strike out the four actions. Mr Ogle has indeed paid a qualified tribute to the way the matter was dealt with by Master Bragge.
17. Evans-Lombe J concluded that the Master was right to strike out all the claims as being claims which had no prospect of success. I have already gone into the point on the £4,000 on which it seems likely that the judge misunderstood the position. However, once the position about the £4,000 is understood it seems to me even more difficult to put that forward as a claim against the solicitors rather than as a claim against Mrs Bell personally. Subject to that single point, I fully agree with the judge, and I have no doubt that his conclusion would have been the same on the £4,000 had the point been fully explained to him.
18. If I were to reinstate this application for permission to appeal a further appeal would be a second-tier appeal. Second-tier appeals are under section 55 of the Access to Justice Act 1999 subject to an exceptionally stringent test, that is that a second appeal is permissible only if it would raise an important point of principle or practice or for some other compelling reason. It appears to me that Mr Ogle's application if restored would not meet that stringent test. In those circumstances it would achieve nothing to restore an application which would be doomed to failure.
19. I therefore dismiss this application.
(Application dismissed; no order for costs).