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
QUEEN'S BENCH DIVISION
(Mr Justice Gray)

		Royal Courts of Justice Strand London WC2 Tuesday, 27th March 2001

1. LADY JUSTICE ARDEN: This is an application for permission to appeal against the judgment of Gray J given on 19th January 2001 in an action brought by Mr. Marya against District Judge Dimmick, on the grounds that District Judge Dimmick acted unlawfully in making a bankruptcy order against him on 18th October 1999 in bankruptcy proceedings initiated by Southall Properties Limited. The proceedings were struck out by Master Eyre on 26th September 2000 and an application has been made to amend the proceedings so that they are proceedings brought against the Lord Chancellor's Department. I am unclear whether that application was also made before Master Eyre but it matters not because it was dealt with by Gray J.
2. The judge said this:

"I am more than willing to assume, for the purposes of this hearing, that there was an outstanding application by Mr. Marya to set aside a statutory demand. It may even be that the District Judge was wrong in law to have made the order that he did, which was to declare Mr Marya bankrupt, adding the rider that his order was not to have effect until an application pending in the Uxbridge County Court had been determined. Even if the District Judge was wrong it appears to me to be plain beyond argument that this is not a situation where Mr Marya can bring proceedings, apparently for damage to his reputation, either against the District Judge, as he originally purported to do, or against the Lord Chancellor's Department, as he now seeks to do. I take the view that the claim is wholly misconceived.

Accordingly, an appeal against a striking out order would have no realistic prospect of success and I therefore refuse the application for permission."

3. It is well established that members of the judiciary are immune from actions of this nature. That is something which Mr Marya has accepted on this occasion. What he says, however, is that he ought to have been allowed to amend the proceedings to join the Lord Chancellor's Department and to seek the same damages he sought against District Judge Dimmick against the Lord Chancellor's Department. He submits that the Lord Chancellor's Department employs the District Judge and thus the Lord Chancellor's Department is liable on the basis of vicarious liability. That is the concept which applies to master and servant. But, of course, a master is only liable for the acts of his servant on the basis of vicarious liability where the servant has committed some wrong for which damages are payable. Applying that to this case, the Lord Chancellor's Department could only be liable on the basis of vicarious liability for the actions of District Judge Dimmick if the District Judge was also liable in damages. For the reasons already given, the District Judge is not so liable. Therefore, neither can the Lord Chancellor's Department be liable. Accordingly, as I see it, there is no prospect of success in an appeal against the order of Gray J.
4. I should add this. This matter has come on before the court somewhat faster than Mr Marya had indicated. Yesterday he saw his solicitors. I have before me a letter dated 26th March 2001 from Gratian & Co Solicitors stating that Mr Marya had just approached them, that they had agreed to act on his behalf, and asking for today's date to be vacated. The right course for me to take, as I see it, since Mr. Marya has approached his solicitors, is to say that, if Mr. Marya wishes to have this matter reinstated and to be represented by solicitors or counsel on the next occasion, he should be at liberty to do so but within the next 14 days only. I hope it will be of assistance to his legal advisers to have this judgment. They should bear in mind that they will have to show that there is some matter which the court has overlooked. I have not been taken to the authorities. It will be open to them to show that I have overlooked some matter but that application must be made in 14 days. It is reasonable to fix that period, bearing in mind that solicitors now to be instructed have seen Mr Marya and wish to instruct counsel. However, as the matter has been listed and is one of a number of matters and Mr Marya is well familiar with the issues, it seemed right to deal with it today on that basis.
5. LADY JUSTICE ARDEN: If you want to make an application you are to do so within 14 days by solicitors or counsel.
6. THE APPLICANT: If counsel is not ready ---
7. LADY JUSTICE ARDEN: You have to make the application in 14 days, showing that there is something that the court has overlooked. That is a matter of filing an application.
8. THE APPLICANT: What if he is not ready?
9. LADY JUSTICE ARDEN: The application can be ready within 14 days.
10. THE APPLICANT: (Incomprehensible)
11. LADY JUSTICE ARDEN: I am dealing with the claim against the Lord Chancellor's Department.
12. THE APPLICANT: In the bank case sometimes counsel is not ready to attend these kinds of cases. It all depends on the counsel.
13. LADY JUSTICE ARDEN: I am dealing with 6038. You saw that Gray J dealt with it within a paragraph. It is a very short point. I feel confident that you will be able to get counsel to advise within 14 days if it is appropriate. That is only in Marya v Lord Chancellor's Department, on that one point that you have argued before me today.
14. THE APPLICANT: Can you mention in your judgment that I have been forced to argue the cases ---
15. LADY JUSTICE ARDEN: You are in no way prejudiced from arguing the matter again if counsel says that I have overlooked something. 14 days from today takes us to 10 April. 14 days is still within the legal sitting.
16. THE APPLICANT: There are certain cases, like in bank cases, when counsel is not ready.