England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION (BANKRUPTCY)
(MR JUSTICE RIMER)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 12 March 2002

1. LADY JUSTICE ARDEN: This is an application for permission to appeal by Mr Royston David Leicester from a number of orders made in the High Court of Justice, Chancery Division. I will deal with the applications in chronological order from the date appealed against.
2. This is not the hearing of any appeal but of applications for permission to appeal against orders which have been made in the High Court. Accordingly, I have no jurisdiction to make any substantive order such as would be made on the hearing of an appeal. Nor can I entertain any new application, including the application at paragraph 7 of Mr Leicester's skeleton argument seeking to set aside all previous orders made in the High Court on the ground of fraud. Such an application would never be made in the High Court and the fraud would have to be clearly proved. Before applications to appeal can proceed to a full hearing, there is a threshold test which must be passed by almost every application and, certainly, these applications. The threshold test is, is there a real prospect of success on appeal?
3. Mr Leicester has filed voluminous papers. I have considered them all. At various points Mr Leicester has invoked the European Convention on Human Rights, Article 6, which is the right to a fair trial and access to court. The European Convention does not guarantee the content of any particular right. That is a matter for domestic law. Mr Leicester has to show that he has a right under English law before he can rely on Article 6.
4. The first application is for permission to appeal the order of Rimer J dated 30 March 2001. The application before the judge was that the judge should make an order that the liquidators of Lyedale Limited and Wilton Fair Limited should evidence to him that each company was liquidated in strict compliance with pertinent law and, thereafter, administered, likewise, importantly when proving the lawfulness of liquidation of both companies and the validity of the alleged liquidation order made at the Bristol County Court against Wilton Fair. A similar order was sought in respect of the liquidators, their staff, the Official Receiver, the regulators of Companies House and the Insolvency Service. The judge dismissed the application and he refused permission to appeal. He referred to the short statement that had been made by Mr Leicester in support of his application.
5. Mr Leicester accused the liquidators of perjury and fraud. He complained of non-compliance with an order of District Judge Merrick, which is not before me. There is an allegation that Mr Jarvis, QC, sitting as a deputy judge of the Chancery Division, had shown bias against Mr Leicester by handing over Mr Leicester's bundles to his opponents at a hearing on 20 February 2001. The judge called the evidence in support of the application:

"....a litany of complaints of a wholly unspecified nature against a variety of people against a background of facts about which I know nothing."

6. He held that the application was not brought against any particular person for any identifiable relief and was made without notice. His held that the application was misconceived.
7. In my judgment, there is no prospect of success on appeal against the order of Rimer J. It is not part of the function of the courts to require persons to show that they have complied with the law. With some exceptions, none of which are relevant here, the function of the court is to settle disputes. Accordingly, the relief which Mr Leicester sought was not relief of a kind which the court could grant. If Mr Leicester has a case for saying Wilton Fair was not duly put into liquidation, he must set out his case in that regard against the relevant person to claim the appropriate relief. Moreover, any such application would have to be heard on notice to the other side.
8. Since the order of Rimer J, Mr Leicester has filed a draft affidavit of some 114 paragraphs. This draft refers to two exhibits which I have not seen. The draft affidavit was apparently prepared in connection with a request that Rimer J should reconsider his order. I have read the draft affidavit which covers a large variety of events. However, there is nothing in it which would cause me to change the view which I have already reached on this application.
9. The second application is for permission to appeal the order of Ferris J dated 6 July 2001. It is not entirely clear what applications were before Ferris J and there is no transcript of Ferris J's reasons for dismissing the applications, other than that which appears in his refusal of permission to appeal. The judge said:

"Mr Leicester applied in person before me on Friday 6 July 2001 seeking declaratory relief in relation to the liquidations of two companies, Wilton Fair Ltd and Lyedale Ltd. From what he told me I gathered that Lyedale had been ordered to be wound up by the court on a creditor's petition. The liquidator of Lyedale had then caused Wilton Fair to be wound up in order to recover money due from it to Lyedale.

Virtually no documents of any relevance were put before me, although substantial packets of irrelevant documents had been sent to the court by Brighton County Court. I heard Mr Leicester for about ten minutes, without him being able to tell me anything which suggested that he had a case. I pointed out to him that he needed to support his application with proper evidence. He appeared to claim that there had been proper evidence but it had been lost by the court, or handed out to the wrong party by the usher after an earlier hearing in the High Court. Mr Leicester's claims were liberally supplemented by unparticularised and insubstantiated allegations of fraud and forgery on the part of numerous parties and the court itself.

Mr Leicester had given notice of his application to the liquidator, who was represented by counsel. I invited her to tell me what the position was. In view of the short notice received by her client she was not fully instructed, but what she told me confirmed the view which I had already formed to the effect that Mr Leicester's application was without substance and vexatious. I therefore dismissed it and refused Mr Leicester's application for permission to appeal."

10. Mr Leicester considers that the order made by the Bristol County Court for the winding up of Wilton Fair Limited on 14 May 1997 was a forgery. The copy of the order in the court in the bundle before me does however bear the seal of the court. Mr Leicester contends that the number given to his case, 723/97, was not in the court's records. The court itself has provided an explanation for this in a letter from the Court Service (Western Circuit) dated 26 February 2002. In that letter the Court Service confirms that, although this number is high, back in 1997 there operated a section called Queen's Bench Division and, occasionally, insolvency matters (such as winding up petitions) would be issued by that section and given a Queen's Bench number. The letter continues:

"The only record we now have at this Court is the order that transferred the case to Brighton County Court after the winding up order was made. The winding up order and all documents in the Court's possession which led to that order were all transferred to Brighton County Court."

11. Mr Leicester has submitted that the court has confirmed that no order was made winding up Wilton Fair Limited. In my judgment that is not a fair reading of the letter. The Court Service does not say that no winding up order was made. The letter assumes that such an order was made. The Court Service is saying that, in accordance with the practice of the court, when the case was transferred to Brighton County Court all the papers were transferred to that court, so the court in Bristol cannot provide a copy of documents to Mr Leicester.
12. In my judgment, in the absence of evidence that the order winding up Wilton Fair was not made, the judge was entitled to take the course that he did. There is no prospect of challenging Ferris J's order on appeal.
13. Mr Leicester says that there was no voluntary liquidation of Lyedale because the relevant resolutions are not filed at Companies House. However, there is no company search in evidence. Moreover, the validity of any voluntary liquidation resolution would not depend on the filing of resolutions at the Companies House. If Mr Leicester seeks to show that no notice of any relevant meeting was given to him as a shareholder of Lyedale, then he must put in evidence to that effect. I would anticipate that would include company searches, inquiries of the liquidators and inspection of the shareholder's register. Mr Leicester says that he is proceeding to make his inquiries about this and nothing in this judgment has any effect on the exercise by Mr Leicester of his statutory rights of inspection.
14. The third application is for permission to appeal from the order of Evans-Lombe J dated 17 December 2001. The judge dismissed Mr Leicester's application for a stay of the winding up of Lyedale Limited and Wilton Fair Limited pending disposal of the appeal from the order of Ferris J. The judge said that the ground for the application was that the liquidators were taken steps to sell the property in which Mr Leicester apparently lives in France. There was a dispute between the liquidators and Mr Leicester as to whether the property belonged to Lyedale Limited or to Mr and Mrs Leicester personally. The judge held that there were no grounds for staying the proceedings in the windings up and that the issue between the liquidator and Mr Leicester concerning the property in France was not relevant to the question of a stay.
15. As the application before Evans-Lombe J was for a stay of the winding up pending the hearing of an appeal from the order of Ferris J, any appeal from the order of Evans-Lombe J must necessary fail. In addition, it is well established that the court will not stay a winding up unless creditors have been paid in full or agreed to a stay and the shareholders have also agreed to a stay. I see no evidence to suggest that these conditions were fulfilled.
16. The final order in respect of which permission to appeal is sought, is that of Jacob J dated 2 November 2001. The appellant's notice states that permission is sought to appeal the order of District Judge Merrick dated 20 October 2000. The appeal from District Judge Merrick would be to the High Court and there is an appeal now pending. I am only concerned with an appeal from the order of Jacob J.
17. Jacob J dealt with two applications. First, he held that there should be no annulment, or other order, touching the winding up of Wilton Fair. Mr Leicester's case before Jacob J was that Wilton had been wound up on the basis of a debt which was alleged to have been due to Lyedale but was in fact due to himself. The judge held that the debt constituted monies lent by Lyedale, and that Lyedale was accordingly the creditor. The judge then dealt with an application with respect to what was alleged to be the unlawful seizure by the liquidator of Wilton Fair of the property in France. The judge held that the property was the property of Wilton Fair and not Mr and Mrs Leicester. The judge held that nothing the liquidator had done was demonstrated to be wrong in any manner whatsoever. The judge rejected Mr Leicester's contention that, because the liquidator was an officer of the court, no judge could deal with Mr Leicester's application. The judge made the point that the liquidator was not part of the same organisation of the court. Being an officer of the court did not mean he was a member of the court or anything like it. It meant simply that he owed a duty to the court to behave properly.
18. The third matter with which Jacob J dealt was an application arising out of the order of Mr John Jarvis QC, sitting as a deputy judge of the High Court of Justice, Chancery Division, on appeal from District Judge Merrick. This concerned the delivery of a transcript of a judgment given by District Judge Merrick and the preparation of an appeal bundle. Jacob J held that, since both parties wanted the appeal to take place as soon as possible, there was no point in granting any application. He simply hoped that the parties would, together, place an appropriate bundle before the court for an appeal.
19. Mr Leicester has told me that the order of Jacob J has not been complied with. All the order states is that the application was dismissed. Mr Leicester clearly wants his appeal from District Judge Merrick to be heard. However, the matter is pending in the High Court now and, subject to a copy of the judgment in the bundle being filed, it may be that this matter can be proceeded with. That is not a question for this court, it is a question for Mr Leicester to raise in the High Court by reference to the Civil Procedure Rules.
20. In my judgment, there is no prospect of success against Jacob J's judgment on these points. In so far as his first order was concerned, I have already explained the requirements as regards an application for a stay of a winding up. They are not satisfied in this case. There is no evidence before me about the ownership of the debt owed by Wilton Fair Limited, or as to the ownership of the property in France. Accordingly there is no basis on which I could conclude that there was a prospect of success on appeal challenging the judge's conclusions as regards ownership of the debt owed by Wilton Fair Limited or the property in France. There is no basis on which I could form the view that there was a prospect of appeal on the basis that those conclusions were against the weight of the evidence.
21. So far as the second application was concerned, the judge could not interfere with the seizure by the liquidator of Wilton Fair of the property in France, unless it was shown that the property was not an asset of Wilton Fair. The judge held that it was an asset of Wilton Fair. As I have just explained, there is no evidence to suggest that the judge's conclusion was against the weight of the evidence.
22. Mr Leicester's submissions about the ownership of the property have been based on assertion. He contends that the property is owned by himself and his wife. However, a court of law cannot act on mere assertion, it can only act on evidence. I can do no better than repeat what Ferris J said when dismissing Mr Leicester's applications. He pointed out that Mr Leicester needed to support his applications with proper evidence. I have not seen any evidence on the issues of the ownership of the property or the ownership of the debt. I could not conclude that there is any prospect of success on appeal challenging the judge's orders.
23. As regards the third matter, the judge's order was, in effect, a case management decision with regard to the appeal from District Judge Merrick. It has to be shown on appeal that the order of Jacob J was perverse. In my judgment, there is no tenable argument to suggest that this was the case. As I have already explained, there are steps Mr Leicester can take in the High Court to ensure that the appeal from District Judge Merrick is duly heard.
24. In the circumstances, I propose to dismiss all the applications for permission to appeal. I would direct a copy of this transcript to be sent to Mr Leicester at public expense. He can consider it and, in addition, I hope he will consider whether he should seek some legal advice with respect to the claims he wishes to pursue.
25. I regret that on the applications before me I can only decline them.
Order: Permission to appeal refused on all applications. Copy of transcript of judgment to be provided at public expense.