England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGSTON UPON HULL COUNTY COURT
(His Honour Judge Heppel QC)

		Royal Courts of Justice Strand London WC2 Monday, 27th May 2002

1. LORD JUSTICE WARD: These are applications by Miss Carrick for permission to appeal orders made by His Honour Judge Heppel QC, sitting as a judge of the High Court at the Hull Combined Court on 8th March 2002, when he dismissed the claimant's applications to set aside (alternatively to stay) warrants of execution which had been issued against her in two cases in which she is a party: case KH 190062, where the defendant is the East Riding of Yorkshire Council; and case KH 990156, where the defendant is the Kingston upon Hull City Council.
2. I shall not add to the length of this judgment by explaining the protracted litigation that led to orders being made against Miss Carrick for the costs of her unsuccessful claims against the two councils. Indeed, she does not today challenge that costs orders have been made and that some costs are still outstanding. The two councils, who have solicitors in common, issued these warrants of execution. I dare say that there will be a return of "no goods" being made by the sheriff, and I dare say that the warrants will have not assisted in producing much, if anything, for the unhappy councils concerned.
3. Miss Carrick's complaint is, first, that improper procedure was followed. There are two points she wishes to make. First, she submits that they were wrongfully issued because no application was made for permission to issue writs of execution. As I understand Rules of the Supreme Court Order 46, which is still current, permission is only needed where six years or more have elapsed since the date of the judgment or order; and I have not been referred to anything which lays down a requirement to seek permission to issue a warrant of execution for outstanding costs. I see no merit in that point, unfortunately.
4. There is more, if not merit, at least sympathy accruing to Miss Carrick arising out of her second complaint. She has endeavoured to pay off the costs in one action. She says (and I am prepared to accept for the moment) that she has paid off practically half of one lot of costs. In the other matter, she says that she has made an offer to pay £1,500 and then to make an instalment offer, and that she has in fact paid £250. Although the solicitors for the authorities have had those offers, they have not, she says, responded to them, and Miss Carrick is a little baffled why she has not heard further.
5. It is a shame that there has not been a response to the offer, and it is a shame, perhaps, that this long-drawn-out litigation cannot be brought to some conclusion which allows justice to be done between the parties. It is entirely a matter for the two councils to consider whether or not to take up an offer to pay off considerable amounts of costs by instalments. It is a matter for the councils to consider whether they wish to charge the home of Miss Carrick with those costs and, if necessary, seek an order for sale. I only say that I hope, even at this last minute, that if -and this is a very big "if" indeed, given the history of the matter - Miss Carrick could only acknowledge that at last this litigation is at an end, that at last there will be no more writs issued here, there and everywhere, and that at last a sense of reality is injected into this very unhappy litigation, a last-ditch attempt could be made to reach some satisfactory conclusion as to the manner in which the outstanding debts are to be discharged. That is a plea to the generosity of the two councils, when generosity will have been evaporated by years of litigation, but it remains no more than a plea for reconsideration.
6. There is no obligation, in my judgment, on the councils to accept an offer to take payment by instalments. They were entitled to issue their warrants and I cannot see any procedural objection to their having done so. That was the view of His Honour Judge Heppel. He said in paragraph 39 of his judgment:

"There is nothing in [her statement of case] which persuades me that these warrants were unlawfully obtained. ... They were properly obtained and her claim that they should be set aside is without merit."

7. I agree with him and I can see no possible prospect of success in an appeal which suggests that proper procedures were not followed.
8. Miss Carrick's second complaint is that she was subjected to some procedural unfairness in the court below because the applications to set aside these warrants had not been given a fixed date and she was consequently surprised when they were being dealt with by Judge Heppel on 8th March. Even if no clear date had been given, they were applications being made by Miss Carrick, not being made against her. She must have been in a position to argue them when she issued them some weeks earlier, on 21st February. Judge Heppel listened for two and a half hours, according to his judgment, although less time may have been spent on this particular point. I cannot see any justification for Miss Carrick complaining that she did not receive a fair hearing from the judge. There is no substance in that point and I therefore dismiss it and her application for permission to appeal.
9. I have added my hopes that somehow Miss Carrick can accept the inevitability of her defeat, and I hope that this trip to the Court of Appeal will be the last in this long litigation. Somehow she has to pick up the threads of her life again, and I hope she may do so comfortably.
Order: applications for permission to appeal dismissed.