England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO REINSTATE

		Royal Courts of Justice Strand London WC2 Thursday, 7th June 2001

1. LORD JUSTICE CHADWICK: On 4th March 1998 Mr Lawrence Collins QC, as he then was, sitting as a Deputy Judge of the High Court in the Chancery Division, in proceedings brought by Rainbow Estates Ltd, as plaintiff, against Tokenhold Ltd and Mr Herman Herskovic, as defendants, gave summary judgment against each of the defendants for arrears of rent and interest payable (as he held) under two leases, each dated 15th December 1987, of separate parts of property known as Gaynes Park Mansion, Epping. The judge gave permission to appeal against his order. Notice was served within a few weeks thereafter.
2. On receipt of the notice of appeal Rainbow Estates, as the respondents to the appeal, sought security for the costs of the appeal. That application came before me as a single judge of the Court of Appeal on 26th August 1998. After hearing argument on both sides I ordered that the application be granted, although in a lesser sum than the amount sought. I ordered that the appellants - that is to say Tokenhold and Mr Herskovic - do, on or before 23rd September 1998, furnish security for the respondent's costs of appeal in the sum of £12,000; and that the appeal be stayed pending provision of such security.
3. I further ordered that upon the occurrence of either of the following events - namely (1) the solicitor for the plaintiff notifing the Registrar of Civil Appeals in writing that he had not received from the respondents on or before 23rd September 1998 notice in accordance with the Rules of the Supreme Court Ord.22,r.8 (1) (as amended) that the sum had been paid into court in compliance with the order, or (2) any cheque or other bill or exchange lodged with the Supreme Court Fund Office in purported compliance with the order being dishonoured - the appeal should stand dismissed with costs without further order. No payment of the sum ordered to be provided as a security was made within the 28-day period limited by that order or at all. The plaintiff's solicitor informed the court that no notice had been received under Ord.22,r.8 (1), as required by the order. Accordingly, the appeal was dismissed on 5th October 1998 without further order; as I had directed it should be. Mr Herskovic was given notice of that by letter dated 6th October 1998.
4. On 28th February 2000 Mr Herskovic wrote to the Court Service in these terms:

"Kindly note that I was unable to continue with the appeal as I was not able to raise £12,000 to deposit into court. I have now been accepted for legal aid. I understand that it will no longer be necessary to deposit the £12,000 into court any more. I will be obliged if you will arrange a new date to continue with the appeal."

5. The Civil Appeals Office wrote back. It told Mr Herskovic that before the appeal could continue, it would be necessary for him to make an application to reinstate. He was sent the appropriate forms for that purpose.
6. Little further progress was made in the following months. In particular, there is no indication on the court file that Mr Herskovic ever became an assisted person. On 9th November 2000 Mr Herskovic wrote again to the Civil Appeals Office indicating that he wished to apply for the appeal to be reinstated. He was informed by the Civil Appeals Office that there were formidable difficulties to overcome in seeking to reinstate an appeal, which by that date had been dismissed for failure to provide security for costs in accordance with an order made over two years previously. Nevertheless, with the assistance of the Royal Courts of Justice Advice Bureau a bundle was prepared and the matter came before me for consideration on paper. In the circumstances that I have set out it seemed to me undesirable to have a hearing at which the respondents were required to attend - with the costs that would inevitably be incurred, and the possibility that those costs might have to be paid by Mr Herskovic - unless and until I was satisfied that there was some prospect that the application might succeed. The papers disclosed little prospect of success - in that there was no material which indicated why Mr Herskovic had not provided the sum which he was ordered to provide as security in August 1998. In particular, there was no material in the bundle which gave any indication whether his failure to comply was due to an inability to do so or whether he had failed to comply because, although able to do so at the time, he chose not to do so. I note from the judgment which I gave on 26th August 1998 that it was not then suggested that Mr Herskovic would have any difficulty in meeting the order to provide security provided that he was able to have recourse to assets which were then the subject of a Mareva injunction. The order which I made on 26th August 1998 provided for that opportunity to be given to him.
7. The matter comes before me today, therefore, on a direction that Mr Herskovic should show cause why the application should be allowed to proceed and should not be dismissed in limine.
8. At the sitting of the court this morning, I was handed a clip of correspondence received by the court office on 7th June 2001 - that is, today - from solicitors Brook Martin & Co purporting to act on behalf of Mr Herskovic and a large number of other defendants who have been joined to the present proceedings. The clip contains what appears on its face to be a consent order made in the action on 25th May 2001. There is no explanation as to why the matter was not drawn to the attention of the Court of Appeal in time to avoid today's hearing. There is no explanation why a copy of an order which was made on 25th May 2001 should not have been provided to this court before the morning of the hearing. The order purports to contain terms of settlement of the action which, on their face, will bind Mr Herskovic. In those circumstances (as the solicitors say) the appellants are not proceeding with the application this morning. Accordingly, nobody appears. There is nothing on the file that I have seen which indicates whether or not the solicitors are on the record in this matter for Mr Herskovic.
9. Accordingly, although treating the letter as providing some explanation for the absence of Mr Herskovic or any representative at today's hearing, I propose, formally, to dismiss the application on the basis that no cause has been shown why an appeal which was dismissed more than two-and-a-half years ago for failure to comply with an order to provide security should now be revived and allowed to proceed.
10. The order which I make is that the application of 6th December 2000 is dismissed.
Order: Application dismissed