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 HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Neuberger)

		Royal Courts of Justice Strand London WC2 Tuesday 30th April, 2002

1. LORD JUSTICE ALDOUS: At the outset of this case and in his concluding submission Mr Perotti asked me to deal with an application which I am going to deal with later. I have not heard submissions on it at the moment. It is an application by Mr Perotti's wife in proceedings----
2. MR PEROTTI: Mother, my Lord.
3. LORD JUSTICE ALDOUS: Mother, thank you Mr Perotti. That matter has not been called on and I will deal with it later.
4. The matter that I have before me is an application for permission to appeal an order stamped 4th March 2000, but it is dated 28th February 2000, of Neuberger J. By that order he dismissed Mr Perotti's application. He ordered him to pay £1,500 by way of costs. He refused permission to appeal and he adjourned an application made by Mr Watson for a Grepe v Loam order. That order, which dismissed Mr Perotti's application, sought:

"(1) there be a stay on all steps to sell my home and 64 Ivor Court pending determination of all my various actions.

(2) further, a stay pending the decision of the House of Lords whether I am granted leave to appeal to the House ..."

5. The background facts to this litigation have been set out in a number of judgments, both in this court and in the High Court. It is sufficient for me to record that in 1997 Mr Perotti engaged in a substantial battle with Mr Watson in relation to the administration of Mr Perotti's late uncle's estate, of which Mr Watson, who is a solicitor, was the administrator.
6. At the hearing of the action, which took a substantial length of time, Mr Perotti established grounds of incompetence against Mr Watson. But, according to the judge, he substantially lost the action. He also lost his subsequent appeal against that decision. Mr Watson therefore obtained an order for a large proportion of his costs.
7. Mr Perotti has addressed me upon the rights and wrongs of Mr Watson, which were in substance dealt with in that action. He made submissions which substantially rake over the issues which were decided in that case. He believes that he was wronged. He is taking this matter to the European court in Strasbourg and in fact seeks to reopen the matter using the jurisdiction of Taylor v Lawrence.
8. However, the position is that he has against him orders for costs for around £650,000. As a result of those orders Mr Watson has obtained charging orders nisi and then charging orders absolute on Mr Perotti's home. Mr Watson is now seeking to enforce those orders.
9. Mr Perotti has drawn to my attention, both in the papers and in his submissions, that he is involved in other actions relating to this matter and he believes that some of them are relevant. He is currently seeking to sue the solicitors who advised him on this matter, in an action against Collyer-Bristow and against Hinks. He maintains that the money he will recover through those actions will more than cover the sums that he owes Mr Watson. A list of all the applications from which Mr Perotti believes that he will receive money is to be found in his particulars of claim which supported his application in front of Neuberger J. They are contained on page 2 of his witness statement, of which there are five in number listed.
10. Also Mr Perotti's mother has taken action against Mr Perotti to establish that she has an interest in his home which is the subject of the sale and possession orders. Mrs Perotti has been successful in applying to intervene in the proceedings for the enforcement of the charging order against Mr Perotti's home. Mr Perotti cites his mother's interest in his home as a reason why the execution orders should be stayed.
11. As I have said, I am concerned in this application with an application for permission to appeal the order of Neuberger J to which I have referred. The history of these proceedings are that on 25th September 2001 Master Moncaster ordered a sale and made an order for possession. On 26th November 2001 Neuberger J refused Mr Perotti permission to appeal from that decision. Mr Perotti then applied on 21st February 2002 to stay the execution of those orders in relation to his home and a property at 65 Ivor Court, pending determination of the actions to which I have referred. This was the application that Neuberger J heard on 28th February and is the one for which permission to appeal is sought.
12. In his judgment Neuberger J stated that although no judge liked upholding an order for possession which effectively resulted in someone being evicted from their home, on this occasion the law required it. Neuberger J said at page 2, line 16:

"Mr Perotti has raised a number of points as to why the order for possession should be suspended. First, he says that the claim for costs which forms the basis of the order for possession (because it formed the basis of the charging order) is in favour of SIF, and Mr Perotti anticipates recovery of very substantial sums indirectly from SIF as a result of the proceedings he brought against the solicitors who formerly advised him."

13. The judge went on:

"I do not think there is anything in that point. Firstly, there is merely a hope on the part of Mr Perotti of recovering costs, whereas what SIF have at the moment tucked under their belt is orders for costs which Mr Christopher Semken, who appears for Mr Watson, tells me he is worth some £650,000; even if that is an exaggeration, and I have no reason in fairly to Mr Semken to think it is, Mr Perotti clearly owes Mr Watson or SIF a very substantial sum. Mr Perotti's prospects of recovering anything from the solicitors who formerly advised him are speculative. I have looked at the action against those solicitors on a couple of occasions in relation to applications. It is clear from my decision that his claim is not liable to be struck out and therefore has a prospect of success, but I cannot say more about it than that. It is due for hearing I am told in October this year. It does not to my mind form the beginnings of a basis for refusing to enforce an order for possession based on a charging order which itself is based on a very substantial debt which cannot be challenged, save on this contingent, uncertain, indeed highly speculative basis."

14. The judge went on to say that the court had power to suspend a possession order in an appropriate case. Having cited National Provincial Building Society v Lloyd, he came to the conclusion that Mr Perotti's prospect of being able to pay the sums was only a prospect, and he said that in those circumstances he could not be satisfied that payment would be made. He concluded:

"In this case Mr Perotti has a prospect of succeeding against the solicitors, but one cannot possibly put it higher than that."

15. The judge then went on to deal with the second point put forward by Mr Perotti, namely that his mother had an interest in the flat. The judge said that it was based on the contention that his mother lent him over £100,000----
16. MR PEROTTI: My Lord, not lent.
17. LORD JUSTICE ALDOUS: I am dealing with the judge's judgment Mr Perotti, if you will just keep quiet.
18. MR PEROTTI: Yes, sorry, my Lord.
19. LORD JUSTICE ALDOUS: And he used at least part of that money to purchase an extended lease of the flat.
20. The judge then went on to deal with the actions that Mrs Perotti had been involved in. He said that:

"In one case Mr Perotti himself appears to have drafted the proceedings against himself on behalf of his mother. In the other he tells me that the proceedings were drafted by his sister."

21. The judge said that he made no comments upon that. He said that he did not want Mr Perotti to understand that he had accepted the submission that they were not collusive. The judge then said:

"Taking them at face value, at best, as Mr Semken says, he owes his mother around £100,000, and she has a very speculative claim for saying that in that event she has some equity in the flat. Assuming in her favour she does have equity in the flat, it is not her home - she does not live there. Mr Perotti says she hopes to live there, but at the moment all she has is some arguable equity. That equity will be fully protected because as Mr Semken points out, the order fashioned by the Master ensures (a) that Mrs Perotti has been added as a party so can make out her claim, if she wishes, to the net proceeds of sale of the flat after the first mortgage has been paid, and (b) the net proceeds of sale are to be paid into court, so that she can argue about the extent to which she is entitled to any of that money.

I do not understand how that can be said to justify the court refusing the order for possession."

22. The judge went on to consider Mr Perotti's decision to seek to reopen the Court of Appeal decisions using the jurisdiction in Taylor v Lawrence. He came to the conclusion that the court would only allow that in exceptional circumstances. Having regard to those conclusions, the judge came to the decision that there should be no stay.
23. Mr Perotti's proposed grounds of appeal are firstly based upon what he says is a breach of his human rights under Article 6(1) of the European Convention. He asserts that he was not treated as a litigant in person should be (and refers to the Equal Treatment Bench Book), and was not allowed to present his case fully and therefore was not given a full and fair hearing. He probably feels the same today, as he has been limited to 20 minutes which is the standard procedure in this court on applications for permission to appeal, those being cases in which he only has to establish a real chance of success. He has not been limited in the written submissions that he has been able to put forward.
24. Mr Perotti also accuses Neuberger J of being biased and that appearing in front of him is prejudicial to his case and a violation of his right to a fair and impartial hearing. He submits, as he did before the judge, that the litigation that he has will enable him to pay any sums which are due. He believes that the orders for costs will be reversed, having regard to the Taylor jurisdiction.
25. In my view Mr Perotti's application for permission to appeal, based on his argument that he was not given a full hearing before the judge and that his rights under Article 6 have been infringed, would be bound to fail in this court and therefore he has not established a real chance of success. He was before a judge who was familiar with the facts of the case and was able to deal with the limited issue before him, namely whether there should be a stay of execution pending the litigation that Mr Perotti was involved in. He concluded that the litigation was speculative. In my view his conclusion cannot be faulted.
26. His main point in relation to the hearing was that the judge had limited the submissions. In my belief the judge was right to do so. Mr Perotti's rambling submissions could not have helped him in this case. He has become so involved in the case going back over the years that he can no longer concentrate upon the particular issues involved. Mr Perotti also, as I have said, refers to Article 8 and he also refers to Article 1 of the First Protocol. I can find no basis for saying that those rights have been infringed. He also wishes to rely on Article 13. But again I can find no basis for that.
27. In my view, the judge took into account all the matters which were relevant in this case, and in those circumstances I cannot see that an appeal would stand any real chance of success.
28. Finally, I come to application 0808, which is an application for permission to appeal a judgment of Neuberger J of 10th April. That granted a stay of the possession order pending application for permission to appeal.
29. MR PEROTTI: Excuse me, my Lord, I have not addressed you on that.
30. LORD JUSTICE ALDOUS: Just shut up, Mr Perotti.
31. That application has no relevance whatsoever to this case because the order has not been enforced and therefore no stay was necessary. In those circumstances, that application must fall together with the previous application.
32. Finally, I mention the application which was made for a Grepe v Loam order. That was adjourned. That application will have to be dealt with by the judge and there is no prospect of this court interfering with the decision that he made. In those circumstances, the application for permission to appeal on the applications that have been called on in front of me fail.
ORDER: Applications refused; Mr Perotti to be provided with a copy of this judgment at public expense. (Order not part of approved judgment)