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
CHANCERY DIVISION
(MR JUSTICE NEUBERGER)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE LONGMORE: I now deal with Mrs Ebert's application, which is an application for an order that the order of Neuberger J of 9th November 2000 be set aside for abuse of process, forgery and perjury, an order that the application for possession of 28th September 1999 be struck out as an abuse of process, an order to set aside the possession order of Mr Registrar James as having been made without jurisdiction, as well as an order to restore the position forthwith, and an order for damages for torture, harassment, trespass, defamation and fraud.
2. The immediate history is that the order of 9th November, which Mrs Ebert seeks to set aside, was an order made by Neuberger J in her case that her appeal was to be dismissed and that she not be allowed to make any further applications or take any steps either in or arising out of the present bankruptcy proceedings, or concerning any matters involving or relating to the bankruptcy proceedings or the conduct thereof without permission of the judge first being obtained, and that if Mrs Ebert wished to apply for such permission, then that application must be made in writing to the judge and it would dealt with on paper.
3. That is what is known to lawyers, and now to Mrs Ebert, as a Grepe v Loam order. She has already applied for permission to appeal in respect of that order and that application came before Aldous LJ on 19th December 2000. He set out the history of Mrs Ebert's application, and took most of the background from an earlier judgment of Morritt LJ of 11th July 2000 which related the facts of the matter, starting with the judgment obtained by Midland Bank on 6th June 1995. That is at the base of Mrs Ebert's submission because, she submits, that whatever may be the position in matters raised by her husband's proceedings and the determination of those proceedings, that she is entitled to see that Midland Bank judgment. I will return to that matter.
4. Morritt LJ then proceeds to set out the history of the matter as originally affecting Mr Ebert, and records that the trustee in bankruptcy applied to Mr Registrar James for an order for the sale of 23 Cranborne Gardens which was vested in Mr and Mrs Ebert jointly. Mr Registrar James declared it to be a joint property of Mr Ebert and his wife and made an order for the sale giving the conduct of the sale to the trustee requiring Mr and Mrs Ebert to give up possession of the property. That has resulted in many applications in relation to that order. I do not think it necessary to set out them all. They are referred to compendiously in that judgment of Morritt LJ cited in the order of Aldous LJ.
5. It then happened that Mr Ebert was declared to be a vexatious litigant. I have just dealt with an application for permission to appeal from that decision, but Mrs Ebert submits that she is entitled to be regarded quite separately from her husband, that she is entitled to bring her own proceedings and is entitled to challenge the original Midland Bank judgment (as Mr Ebert has done) on the basis that no judgment exists and the assignment makes reference to some other judgment.
6. Aldous LJ then dealt with the application for permission to appeal the Grepe v Loam order. Having cited from the judgment given by Neuberger J, he said:

"In my view the judge was clearly right. Mrs Ebert has no cause of action to set aside the debt. She has been used as a front by her husband to seek to dispute the debt, a dispute which has been decided over and over again. Mr Ebert's share of the house vested in the trustee. The order made appears to me to be one which is both in her interest and in the interest of the trustee. It prevents her continuing to stand as a front, as the judge put it, for her husband's obsession. In my view he was right."

7. Aldous LJ refused permission to appeal.
8. In that situation of course any further application by Mrs Ebert is subject to the Grepe v Loam order made by Neuberger J. The application that she has made, which is the basis of her current application to appeal, was an application made on 25th March 2001. For that she needed to apply in writing to Neuberger J for it to be dealt with on paper. She did apply, and Nueberger J dealt with it by endorsing the application in the following manner:

"Application refused. There is nothing new here. I refuse permission to appeal."

9. He then initialled it giving the date of 27th March 2001.
10. Mrs Ebert now applies to this Court for permission to appeal from that order of Neuberger J and, as it unfortunately happens, the order as drawn by the Bankruptcy Registrar in relation to Neuberger J's order says this:

"Upon Reading The Application of the Applicant dated 25th March 2001

And Upon Hearing the Applicant in person

It Is Ordered

(1) that the Application is refused

(2) that permission to Appeal is refused"

11. Mrs Ebert protests that there was no hearing, let alone a hearing at which she appeared in person. In that she is plainly correct. The order of the Court as drawn does not reflect the true position under the Grepe v Loam order pursuant to which the learned judge refused an application in writing.
12. Mrs Ebert now seeks permission from this Court, and this has been listed as an oral hearing. It may be that the correct procedure would be for it not to be listed as an oral hearing but for a written decision by two Lord Justices as occurred in the case of Newton last week. I have, however, listened to Mrs Ebert and attended to her arguments in support of her application for permission to appeal. They are two-fold: firstly, that she is entitled to see the original judgment obtained by the Midland Bank. That is part of her case and nothing to do with her husband's case. But as Aldous J observed in the passage from his judgment of 19th December, from which I have already quoted, (while refusing permission to appeal from the original Grepe v Loam order) "Mrs Ebert has no cause of action to set aside the debt. She has been used as a front by her husband who seeks to dispute the debt, a dispute which has been decided over and over again." So there is nothing in that point.
13. Alternatively, Mrs Ebert submits that she was entitled to have a hearing before Neuberger J, and the form of the order as drawn shows that she was so entitled, and that I ought to give permission to appeal in order that an oral hearing of her application now takes place. In view of the Grepe v Loam order of 9th November 2000 in respect of which permission to appeal has been refused, that is a hopeless argument. It is of course unfortunate that the order of the Court as drawn recalls that there was a hearing when there was not, but the truth of the matter is that in the light of the Grepe v Loam order Mrs Ebert was not entitled to a hearing but she was entitled to make a written submission, which she did to the judge, and that was refused.
14. The only question for me, therefore, is whether I should give Mrs Ebert permission to appeal from that refusal of the judge. In the light of the remarks that I have made in the course of this judgment, it is clear to me that that is something which I cannot do, and her application for permission to appeal will have to be refused.
(Application for permission to appeal refused; copy of transcript to be provided to Mrs Ebert at public expense)