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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Foden v Humphry & Co (A Firm) & Anor [2002] EWCA Civ 1714 (8 November 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1714.html
Cite as: [2002] EWCA Civ 1714
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE QUEEN'S BENCH DIVISION
(MR JUSTICE LLOYD)
Strand London, WC2 Friday, 8th November 2002 |
||
B e f o r e :
____________________
| VERONICA BERYL FODEN | Claimant/Applicant | |
| -v- | ||
| (1) HUMPHRY & Co (A FIRM) | ||
| (2) WOLFERSTANS (A FIRM) | Defendants/Respondents |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondents did not appear and were unrepresented.
____________________
Crown Copyright ©
- LORD JUSTICE PETER GIBSON: This is the adjourned hearing of applications by Veronica Foden for permission to appeal from orders made by Lloyd J on 2nd July 2002. The judge dismissed two appeals brought by her. Each was an appeal against an order made by His Honour Judge Overend in the Plymouth County Court dismissing an application by her to set aside a statutory demand of a firm of solicitors which was based on a costs order made against her. In one the solicitors were Humphry & Co ("Humphrys") and in the other Wolferstans. The applications for permission to appeal came before me on the 10th of last month. I adjourned the hearing at Mrs Foden's request as she told me she was not feeling well. I was also troubled to find on that occasion that she did not have a copy of the judge's judgment, even though the judge had given her permission to obtain a transcript at public expense. I caused her to be provided with a copy. Although the limited issue for the judge to determine and also for this court, if permission to appeal were granted, was whether Judge Overend was right to dismiss her two applications to set aside the respective statutory demands, based as they were on costs orders which had not been discharged or varied, I should say a little about the wider background, as Mrs Foden's evidently deep dissatisfaction stems from her unsuccessful involvement in three actions: (i) matrimonial proceedings in which her husband obtained an order for divorce, those proceedings ending on 22nd November 2001 when this court refused her permission to appeal; (ii) Chancery proceedings against her late mother over a property, those proceedings ending on 4th October 1995 when this court refused her permission to appeal; (iii) possession proceedings brought by Birmingham Midshires Building Society as mortgagee against her, those proceedings culminating in an order made by Judge Overend on 22nd March 2000 whereby he gave the building society possession and ordered Mrs Foden to pay a sum of just under £100,000. She is unhappy with the outcome of all these proceedings. She accuses the solicitors who acted for her of negligence. Two of those firms are Wolferstans and Humphrys.
- On 19th September 1997 Mrs Foden commenced proceedings against Wolferstans. She alleged breach of contract, negligence and breach of fiduciary duty. That action, I am told, has been struck out by Judge Overend and that order is to be the subject of an application for permission to appeal. At one point the action was struck out by a district judge on limitation grounds. She appealed and on 23rd November 2000 Judge Overend held that the District Judge's order should not have been made. However, he also struck out as an abuse of process that part of Mrs Foden's claim alleging a fraudulent alteration of a mortgage deed as it had already been the subject of decision in possession proceedings brought by the building society. On 2nd January 2001 Judge Overend directed that a transcript of the hearing on 22nd and 23rd November 2000 before him be supplied to Mrs Foden at public expense, but the transcript was not sent to her until 14th March 2001.
- In the meantime she had made two applications, (i) to amend her particulars of claim against Wolferstans, and (ii) for the transfer of the proceedings from Plymouth to London. Those applications were listed to be heard by Judge Overend on 1st March 2001. Wolferstans had also applied for further disclosure by Mrs Foden, and that was listed for a hearing before the District Judge on 6th March 2001. Mrs Foden informed the court that she was not prepared to attend the hearing of her applications unless she had the transcript which Judge Overend had ordered to be provided to her. He adjourned her applications to the District Judge to be heard on 6th March 2001, as he explained in his judgment of 24th January 2002, to give her the opportunity of attending.
- On 6th March Mrs Foden, who had not received the transcript that she had requested, chose to not to attend. Her applications were refused by District Judge Walker, who ordered her to pay Wolferstans' costs assessed at £600. That was in relation to her two applications. On Wolferstans' application for further disclosure, the District Judge ordered disclosure by her. She was ordered to pay Wolferstans' costs assessed at £575. In each case payment was ordered to be made by 20th March 2001. The solicitors acting for Wolferstans, Bond Pearce, wrote to her on 7th March 2001 telling her of the orders. They also informed her that the court decided had that her stated reasons for non-attendance were not justifiable.
- Mrs Foden did not pay the sums ordered to be paid. She sought to appeal against the District Judge's order. By letter dated 6th April 2001 she was informed by the court service, acting on Judge Overend's directions, that she had to provide a transcript or approved note of the District Judge's judgment within 21 days. She did not do so and on 13th June 2001 Judge Overend dismissed her appeal on paper. It appears from a letter dated 21st January 2002 from the court service to Mrs Foden that she had sought again to apply for leave to appeal against the costs order of 6th March but that this was struck out as an abuse of process.
- To go back in time, a statutory demand was issued by Wolferstans on 18th April 2001. It was based on the costs order of 6th March 2001. Mrs Foden applied to set aside the demand on the ground of "obstruction to justice", relying in particular on the absence of the transcript which Judge Overend had directed to be supplied to her. That application came before Deputy District Judge Northam on 23rd July 2001. He adjourned the hearing so that Mrs Foden could, if she chose, apply for an oral hearing of the application to appeal the costs order. She had been notified by the court by letter dated 20th July 2001 that she was entitled to that oral hearing, but told that this would not take place until she filed the transcript of District Judge Walker's judgment.
- The adjourned hearing of the application to set aside the statutory demand was before Judge Overend on 24th January 2002. He dismissed the application, because she had been given, but had not taken, the opportunity for an appeal to be pursued; but he also considered what might have happened had she applied for an oral hearing of the application for leave to appeal. He said that Mrs Foden could not be heard to complain about orders made in her absence on 6th March 2001 because she chose not to attend in full knowledge that there was to be a hearing. He also considered whether the transcript which he had directed should be supplied to her would have made any difference to the outcome of her two applications and of Wolferstans' application before the District Judge on 6th March 2001. The judge considered what the transcript contained, noted that Mrs Foden was unable to give any reasons why the transcript would have made any difference to her arguments and concluded that no difference would have been made to the outcome. He therefore dismissed the application to set aside Wolferstans' statutory demand. It may be that, subsequently, Mrs Foden did seek to have an oral hearing of the application to appeal District Judge Walker's order, but what appears from a document handed to me today and which Lloyd J was handed after he had given judgment is that Mrs Foden lodged in the county court on 31st January 2002 an appeal; but, of course, that came after Judge Overend's order of 24th January.
- I turn next to the litigation involving Humphrys. Mrs Foden has put very few documents relating to those proceedings in the bundle put before me, though she has supplied me with many papers relating to other matters which she feels are relevant but which have, I am afraid, little to do with the narrow point before this court. Lloyd J appears to have had more documentation, and from his judgment I understand the position to be this. Humphrys were also made a defendant to negligence proceedings brought by Mrs Foden in the Queen's Bench Division. That action came before Master Eyre in the course of 2000. He ordered her in December 2000 to serve amended particulars of claim, setting out her contentions in chronological order clearly and succinctly and identifying any relevant documents she relied on. He directed that she should apply by 5th February 2001 for a hearing to determine whether the action should be permitted to proceed. Subject thereto he ordered a stay of the action. On 3rd April 2001 Master Eyre made a further order that Mrs Foden should file the amended particulars of claim by 3rd May 2001 and serve by 10th April an explanation of the steps which she had taken to obtain assistance in their drafting. If she failed to comply with his orders, he directed that the claim was to be struck out. He also directed her to apply by 10th April 2001 for the action to be restored. After further correspondence with Master Eyre, including a message from him on 26th April in which he repeated what he had told her on 19th April that he was expecting some prompt and effective action on her behalf if she was to escape striking out, on 16th May 2001 Master Eyre informed Mrs Foden that as she had neither complied with his order of 3rd April, nor responded to his letter of 26th April the claim was struck out.
- Mrs Foden applied out of time for permission to appeal. On 16th July 2001 Gage J refused an extension of time and dismissed her application. The application was not renewed in open court. Accordingly that was the end of that action and, inevitably, as the action had been struck out, she had to pay the costs of Humphrys. On 8th January 2002 a final costs certificate was issued by the Supreme Court Costs Office in favour of Humphrys. That certificate was in the sum of £2,255.25. Mrs Foden was ordered to pay that sum within 14 days. That order has not been set aside or varied. The costs were not paid. On 21st March Humphrys served a statutory demand for that sum and interest. On 10th April Mrs Foden applied to set aside the demand on, amongst other grounds, the ground that "judicial chair occupants" had conspired with Bond Pearce acting for Humphrys to pervert the course of justice and that her rights under Article 6 of the European Convention on Human Rights had been breached. That application was dismissed on 16th April by Judge Overend without a hearing. I have not been supplied with a copy of his order. Lloyd J presumed that the judge must have considered that no sufficient cause was shown for the application: see rule 6.5(1) of the Insolvency Rules 1986.
- Mrs Foden then appealed against Judge Overend's refusals to set aside Wolferstans' and Humphrys' statutory demands. Those appeals came before Lloyd J. In a detailed judgment he dismissed her appeals. In the course of his judgment he also refused an application for a stay of all proceedings. Mrs Foden told the judge that she had presented a criminal complaint to the police. She asked for a stay pending the outcome of the criminal investigation. The judge pointed out that he had no power to stay proceedings other than those before her and that it would not be in her interests to stay those proceedings because, unless she could set aside the statutory demands, she could not resist the presentation of bankruptcy proceedings. The judge said that the only live question before him was whether Judge Overend was right to dismiss her applications to set aside the statutory demands. He pointed out that they were based on costs orders which still stood. He said in relation to Wolferstans' that it was irrelevant that she was claiming substantial sums against them because that was part of the context in which District Judge Walker ordered her to make payment of the costs within 14 days, as he was entitled to do under the Civil Procedure Rules. He therefore found no substance in complaints about Judge Overend's refusal to set aside Wolferstans' statutory demand. As for Humphrys' statutory demand, Lloyd J said that because her action against them had been struck out it must follow that she had to pay the costs the subject of the certificate. Accordingly it was his conclusion that Judge Overend was right to refuse to set aside Humphrys' statutory demand.
- Mrs Foden in her Appellant's Notice relating to Wolferstans' statutory demand complains about many matters in strong terms. She says that the costs ordered to be paid rest on violation of Article 1 of the First Protocol to the Convention. She accuses Judge Overend and Lloyd J of bias and malice. She refers to crime, corruption and conspiracy within the case. She says that lawyers and judges use every avenue to prevent exposure of judicial wrongdoing. Similarly, in her Appellant's Notice relating to Humphrys' statutory demand she alleges a violation of her property rights under the Convention, bias and malice on the part of the same judges and perversion of the course of justice. She refers to what she calls her human right to take a negligence case against her solicitors. She alleges a breach of Article 6. In her written arguments in both Appellant's Notices she mentions the three actions, reference to which I made at the outset of this judgment. She has, in addition, supplied me with an affidavit accompanied by a large number of sheets of an exhibit. In her affidavit she refers to 15 years of injustice inflicted upon her due to bias and lack of impartiality by judiciary in the United Kingdom spanning three major trials. She accuses Wolferstans and Humphrys of fraudulent activity to evade their own negligence. She says that they have been assisted by judicial incompetency, bias, collusion and conspiracy. She is bitter that bankruptcy proceedings have now been brought against her.
- I do not doubt that Mrs Foden is genuine in her belief that she is the victim of an injustice. She feels strongly that the solicitors who have defended her claim against them are in the wrong. She feels no less strongly that the judges who have decided points against her are equally wrong, and worse. But to make generalised accusations, as she does, of bias and malice and the like against such judges is, in my view, regrettable, particularly when to any objective observer there is no evidence of such serious misbehaviour. Lloyd J was at pains to explain to Mrs Foden that the issue before him was a very limited one.
- It is no good Mrs Foden seeking to go back to other cases which have run their course and could not be reopened before Judge Overend, Lloyd J or this court. If there was fraud, then there should have been a separate action brought within time against those whom she was accusing of fraud. Whether such action would survive would depend on what Mrs Foden could substantiate. The only question for Lloyd J was whether Judge Overend was right to refuse to set aside the statutory demand. The crucial fact is that each statutory demand is based on costs orders which were then, and still are, standing. To refuse to set aside the statutory demand in the circumstances was not biased or malicious. Any judge true to his judicial oath would have done the same.
- As for the accusations of breaches of Mrs Foden's human rights, they are in my judgment wholly without foundation. It is not a breach of the right under Article 1 of the First Protocol to obtain by due process an order for costs against a litigant who is unsuccessful or to seek to enforce such an order. Nor has there been any breach of Mrs Foden's Article 6 right to a fair trial by an impartial tribunal in the orders which have been made against her. A litigant who chooses not to attend a hearing of which she is aware cannot complain if at that hearing the litigation is determined against her and consequent costs orders are made.
- I have no hesitation in concluding that the proposed appeals are hopeless. They raise no important point of principle or practice; nor has any other compelling reason been shown why the appeals should be allowed to go ahead.
- At the end of her oral submissions to me today Mrs Foden suggested that she did not need leave to appeal and that she had some right to come to this court without such leave. I am afraid she has misunderstood the position. The necessity for permission to appeal to this court from the High Court is clearly stated in the Civil Procedure Rules.
- It follows that I must refuse the applications for permission to appeal.
Friday, 8th November 2002