England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(Mr Lightman QC
sitting as a Deputy High Court Judge)

		The Royal Courts of Justice The Strand London Wednesday 10 July 2002

Wednesday 10 July 2002

1. LORD JUSTICE SIMON BROWN: This judgment should be read as a footnote to Arden LJ's judgment given on 24 May 2001, which says the greater part of what needs to be said about this case and which fully covers the background to it. I shall assume, therefore, that anyone interested in the judgment which I am now giving is fully conversant with all that Arden LJ said.
2. Put at its very simplest, the position is this. Almost exactly ten years ago, on 20 July 1992, Mr Lightman QC, then sitting as a Deputy High Court Judge, refused the applicants a mandatory injunction, an order against which the applicants later tried unsuccessfully to obtain permission to appeal. Mr Lightman also (as is, of course, usual) made an order for costs. The order as drawn provided for the costs to be borne by the "defendants". Note the use of the plural: there was no fact only one defendant, although there were two plaintiffs, namely these applicants.
3. In late 2000, after a great deal of further litigation between the parties (which again went against the applicants) the defendant and her solicitors discovered how the order had been drawn, not surprisingly regarded it as a clear mistake, and sought to correct it under the slip rule. They relied on various contemporary documents which clearly supported the view that the costs had been ordered to be paid by the plaintiffs, rather than the defendant, and relied as well upon the obvious probability that the costs would have been ordered to follow the event in the usual way. The applicants objected to any correction being made.
4. On 7 December 2000, Lightman J (as by then he had become) gave directions for submissions. These included provision for a reply by the applicants to be made by 22 January 2001. Unfortunately, overlooking that last provision, the judge on 16 January ruled that there had been a slip in the order and he corrected it. On 24 January the applicants faxed a letter complaining that the judge had decided the matter before their time for replying to the defendant's submissions had elapsed. The judge immediately, and very properly, acknowledged his oversight and instructed his clerk to notify the applicants that he would reconsider his decision in the light of any submissions which they wished to make and which he now invited them to make.
5. The applicants chose to decline that offer and to apply instead for permission to appeal. In the result the judge had no option but to confirm his previous decision and unsurprisingly he refused permission to appeal. It was against that decision (together with various other rulings with which I am not today concerned) that the applicants sought but failed to obtain permission to appeal from Arden LJ on 24 May 2001. Having set out the background to all this and quoted in full the judge's letters of 16 and 24 January 2001, Arden LJ in paragraphs 17-29 of her judgment dealt with and rejected all the applicants' many and various complaints and criticisms with regard to Lightman J's decision to correct the costs order that he had made in 1992.
6. Paragraph 28 of Arden LJ's judgment, however, included this sentence:

"It might be open, of course, to the applicants to go back even now to Lightman J and ask for an extension of time to put in further submissions and new material."

7. Paragraph 29, however, added this:

"Putting the possibility of new material aside, the question which the judge had to decide was whether there had been an accidental slip. The judge felt the matter was clear. If Mr and Mrs Tracy do not themselves have any contemporaneous material which would contradict the solicitors' note made on that occasion, they have an uphill task in trying to persuade the Court that it was not an accident or slip."

8. The applicants took up the suggestion made in paragraph 28 and on 17 July 2001 submitted to Lightman J a ten-paragraphed document (paragraph 9 of which repeated and attached their skeleton argument which had been put to the Court of Appeal) by way of "further submissions in the matter of the order made on 20 July 1992". On 27 July 2001 Lightman J reconfirmed his ruling. His letter briefly summarised the background and continued:

"I have since the judgment of Arden LJ received further submissions in writing from the Claimants dated 17 July 2001. The Claimants adduce no further evidence, let alone contemporaneous evidence. The further submissions are no more than a repeat in more vigorous language of the submissions previously made.

I remain of the view that there was a slip in the original order which has already been corrected or which I ought and do direct should be corrected. The order should read that the Claimants should pay the Defendant's costs of the interlocutory application for the mandatory injunction in any event."

9. Before me now are the applicants' applications first to adjourn today's hearing and secondly, in case I do not accede to that application, for permission to appeal against Lightman J's order of 27 July 2001, together with a declaration that various orders made in the underlying proceedings are null and void because -- and I quote:

"Judges in the above case, including Lords Justices of Appeal, have;

(a) contravened procedural requirements regulating the exercise of power;

(b) disregarded the rules of natural justice

(c) shown bad faith and been improperly motivated by;

(i) bias because the Defendant, MARGARET ELIZABETH JONES is a PERSONAL FRIEND of HIS HONOUR JUDGE THE LORD ELYSTAN MORGAN AND LADY MORGAN;

(ii) political consideration to further the United Kingdom policy of devolution;

(iii) wrongfully seeking to protect Legal Aid Funds to the detriment of unassisted and unrepresented parties;

(d) taken into account irrelevant matters, ignored relevant matters and disregarded United Kingdom domestic law which they are sworn to uphold;

The decisions of these judges are therefore ultra vires making their orders null and void and the Claimants/Appellants are not bound by them."

10. I refuse to adjourn this hearing. The only suggested reason for doing so is because Mr Tracy was certified by his general practitioner on 10 June to be:

"recovering from a serious operation with complications and is unfit to travel. He is unlikely to be fit to travel over the few months (sic) and any travelling would be against my advice."

11. These proceedings have already been far too long protracted and delayed. There is no reason whatsoever for Mr Tracy to attend the hearing: Mrs Tracy could perfectly well appear if she wished. She, it is apparent from the court's papers, has acted throughout as the spokesperson for both. In any event I am wholly unpersuaded that there is anything of value that either of them could possibly say in support of this application. Master Venne was in my judgment right to have refused the adjournment sought.
12. As to the substantive application and claim for a declaration, there is no merit whatsoever in this. It is indeed wholly misconceived. No point of any substance is raised and much of what is complained of was dealt with in Arden LJ's earlier judgment. Nothing could be plainer than that the judge below was entitled to apply the slip rule to correct the obvious mistake made by the court staff in recording his original costs order. Not merely indeed was the judge entitled to do this, but to my mind it would have represented a gross injustice to the defendant had he not done so. So blinded, however, are the applicants by their own festering sense of resentment and grievance that they are quite unable to see that justice is a two-way street, something to which the defendant is entitled no less than themselves.
13. I hope that this emphatic refusal of permission will spell the end of their misguided and prolonged litigious efforts. If not, however, the time may have come for consideration to be given to inviting the Attorney-General to apply to the High Court under section 42 of the Supreme Court Act 1981 for a Civil Proceedings Order, popularly known as a vexatious litigants order.
14. These applications are refused.
ORDER: Applications refused