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 Justice Ferris)

		The Royal Courts of Justice The Strand London Thursday 23 May 2002

Thursday 23 May 2002

1. LORD JUSTICE WALLER: Mrs Adshead has appeared before me today seeking permission to appeal certain orders made by Ferris J. There are in fact before the court three applications for permission to appeal. At the commencement of the hearing there was some anxiety expressed by Mrs Adshead as to whether one of them had been properly listed, in effect, because she said that she had not been notified of it. But a letter was produced showing that she almost certainly had been notified of it and in any event these three applications, which she really has demonstrated when arguing the points, must be considered together.
2. The applications relate to a hearing before Ferris J on 24 and 25 January 2002. The first relates to an order that he made on the first day of the hearing, on 24 January, refusing Mrs Adshead's application for a stay of the proceedings which he was due to hear. The second relates to the order that Ferris J made following the hearing, in so far as that order affected Mrs Adshead. After the hearing, a judgment was handed down in writing by Ferris J on 20 February 2002 and the order was finally entered on 28 March 2002 (page 25-30 of the bundle relating to 0479, the main permission to appeal application, which is the bundle we have used for the hearing). The third application for permission to appeal relates to that same order but as it affects James Wright, Mrs Adshead's son, whom Mrs Adshead represented before Ferris J and has continued to represent in this court.
3. There is a long history lying behind the applications which came before Ferris J on 24 and 25 January. He sets out a lengthy background and history in paragraphs 2-65 in that judgment. There may be minor details which Mrs Adshead does not accept but it is unnecessary to repeat the detail because one can get a clear history from those paragraphs.
4. Taking the history chronologically, the critical features, so far as today is concerned, are these. In October 1989, I think on 18 October, a judgment was obtained against Mr Adshead, now sadly decreased, in a contractual dispute and Mr Adshead was ordered to pay the claimant's costs incurred by the Legal Aid Board. On 22 January 1990 there was executed a legal charge on premises called Bennetston Hall in favour of the Royal Bank of Scotland ("the bank"). The charge was signed by the late Mr Adshead and there was a letter of consent to that charge signed by Mrs Adshead. On 13 December 1993 the bank issued possession proceedings in the Buxton County Court. In February 1994 the Legal Aid Board obtained charging orders on Bennetston Hall and in June 1996 the Legal Aid Board was granted possession of Bennetston Hall. On 12 March 1999 District Judge Reeson made an order transferring the bank's possession proceedings to the Manchester High Court. On 22 July 1999 those proceedings were adjourned generally, with liberty to restore, due to Mr Adshead's terminal illness.
5. There was then what undoubtedly must have been extremely distressing proceedings brought by the bank seeking an injunction forbidding the burial of Mr Adshead's remains within the curtilage of Bennetston Hall. Those were commenced on 13 August 1999 and on 22 August Mr Adshead died. Mrs Adshead and James Wright were executors of his will. By an order dated 22 September 1999, the proceedings still being in the High Court, Mrs Adshead was substituted for Mr Adshead as a defendant in the bank's possession proceedings. Those proceedings were before His Honour Judge Maddocks, he sitting as a section 9 Judge in the High Court, but on that date he also ordered those possession proceedings to be transferred back to the county court at Manchester. This order was made because Judge Maddocks appreciated that the High Court had no jurisdiction to deal with possession proceedings. A Court Of Appeal decision (which in fact dealt with a judgment of Judge Maddocks himself) had ruled that the High Court had no jurisdiction: see Yorkshire Bank v Hall [1999] 1 WLR 1713. It was in the context of that decision that the possession proceedings were transferred back to the county court.
6. On 20 December 1999 the position of Mrs Adshead was apparently confirmed, and ultimately a possession order was made in favour of the bank by His Honour Judge Maddocks sitting as a Judge of the County Court. He also dealt at that time with an application to strike out the bank's claim for want of prosecution, he dismissing that application. Mrs Adshead sought permission to appeal that possession order and came to the Court of Appeal, where Buxton LJ on 5 May 2000 refused permission to appeal. Then on 30 August 2000 a settlement agreement was reached between the bank and Mrs Adshead. The thrust of that agreement was that the bank agreed to suspend the warrant for possession on payment of £75,000, that being a considerable reduction of the amount that they claimed to be due, that sum to be paid by 30 April 2001.
7. Just prior to that date, on 27 April 2001, an application was made on behalf of Mrs Adshead for injunctive relief in the Legal Aid Board action, but the relief sought included relief against the bank, seeking to prevent the bank continuing to seek possession. That application was successful. Ferris J was somewhat critical of the material which was placed before the court, but not only was that injunction granted, but it was extended from time to time.
8. On 11 May 2001 Mrs Adshead issued a claim against the bank in the High Court for declarations and an injunction and for damages. On 25 May the bank applied to strike out that claim, and on 29 May the bank applied to discharge the injunctions. On 10 July Mrs Adshead made an application for disclosure of the deeds of the house. On 20 November the bank issued an application to strike out the particulars of claim in the action commenced on 11 May. On 5 December James Wright, the son, applied to join in the proceedings and it was on 22 January 2002, just before the hearing before Ferris J, that he issued a further application to withdraw that application to join.
9. Also just before the commencement of the hearing, Mrs Adshead issued an application to stay the proceedings pending applications before His Honour Judge Maddocks, and it is right that I should just mention what those applications related to. Mrs Adshead had attempted to make two applications, one in the Buxton County Court and one in the High Court in Manchester. The Buxton County Court application was an application to set aside the order of 12 March 1999; that is, the order which had transferred the proceedings from the county court to the High Court. She had also issued an application in the High Court in Manchester on 31 December 2001, seeking to set aside orders that had been made in the High Court while the proceedings were in the High Court. They included the order under which Mrs Adshead had been originally substituted as a defendant; that is to say, the order of 22 September 1999. The position so far as both those applications were concerned was that Judge Maddocks had given instructions to the administration that those applications should not be allowed to be issued because all matters were to come before him. If Mrs Adshead wanted to pursue such applications the invitation was that she should come and make an application to him in chambers.
10. That led to the sequence that I have previously described. It led, first, to Mrs Adshead making her application to stay all matters before Ferris J. That application Ferris J refused in a judgment delivered on the first day, but it is a matter he also came back to and gave reasons for in the main judgment which he delivered on 20 February. He refused the application, first of all because there were in fact no applications issued, having regard to Judge Maddocks' instructions, but also because Ferris J took the view that the applications were hopeless. He took that view because in his view the court did have the power to transfer the possession proceedings from the High Court to the county court, and he relied on section 40 of the County Courts Act 1984. In any event, he said that once the action had come back to the county court, orders had been made in the county court which included an order for possession and confirmed that Mrs Adshead was a defendant. Then Mrs Adshead had applied to the Court of Appeal and the Court of Appeal had refused permission to appeal. Thus the position was not open to challenge after the Court of Appeal's ruling. That is the first matter in relation to which Mrs Adshead seeks permission to appeal to this court.
11. In my view the judge was clearly right. These applications were hopeless. The court clearly does have the power to transfer the matter back to the county court and clearly orders had been made. Mrs Adshead had sought to bring the matter to the Court of Appeal and permission had been refused, and there is no basis on which she has an arguable case in the Court of Appeal that there should have been a stay pending those applications.
12. Perhaps it is convenient at this stage to deal with a point that Mrs Adshead raises on section 40. The section gives the power to transfer the action back or:

"(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known of the requirement, order that they be struck out."

13. Her argument on that subsection, which she made before Ferris J, is that if the person who brings the proceedings does know that the proceedings should be brought in the county court but brings them in the High Court, then the court has no discretion other than to strike out the action. The judge, in my view rightly, refused to read the section in that way. It is quite clear that the section does give the court a power to transfer back. It also gives it a power to strike out, but only if it is satisfied that the person knew or ought to have known the requirement. In any event, the factual background would not indicate that anyone bringing the proceedings knew that the High Court was not the appropriate court and in these areas there is no presumption that a lawyer or an adviser or a judge or anybody else is omniscient. It is clear that this happened through not knowing the limitation that there was on the High Court jurisdiction. In any event, that application for permission to appeal must be refused.
14. Then Ferris J had to deal with various applications that were before him. In a very careful and compelling judgment he dealt with each and every point. It must be appreciated that the points that were actually before him which related to Mrs Adshead were, first of all, her application seeking injunctive relief; secondly, an application by the bank seeking to strike out her claim; thirdly, the application of the bank seeking to discharge the injunction; fourthly, her application to seek specific disclosure of title deeds; fifthly, the application to strike out the particulars of claim; sixthly, the application to seek to stay the proceedings which I have already dealt with; and then an application to amend the particulars of claim.
15. Mrs Adshead would ask the Court of Appeal to substitute for the orders made by the judge (because he dismissed all those applications), first of all, a stay on all the proceedings. Again, I have dealt with that. Secondly, she asks for an extension of time. Thirdly, she asks that in the event permission to appeal is refused, permission to apply to the House of Lords be granted, and I will come to that in a moment; fourthly, that the order making her a defendant be set aside; and, fifthly, that the possession order be set aside.
16. So far as the making of Mrs Adshead a defendant is concerned, of course in one sense that was not an order which was before Ferris J for his consideration, but one understands entirely what Mrs Adshead is seeking to bring before the court because, indirectly, what was before Ferris J was consideration of the status of the orders that had been made while this action was in the High Court. It is clear from his judgment that he took the view that it was no longer open to Mrs Adshead to challenge any order making her a defendant. The essential reason for that is, first of all, that the matter was transferred back to the county court and her position as a defendant was confirmed by the county court. Secondly, the matter then came to the Court of Appeal, dealing with the orders for possession and with her as a defendant, and the Court of Appeal refused permission to appeal. Thus there is no, and can be no, challenge to that position as of today. That was the judge's reasoning and, as it seems to me, there is no arguable point for suggesting that that reasoning is wrong.
17. The final part of what she seeks from the Court of Appeal is the setting aside of the possession order. Once again that was not a matter actually before Ferris J, but once again one understands that it again raises the point of the status of orders made once these possession proceedings had been transferred to the High Court at one stage and then back to the county court. Once again the argument here is that, since there was an invalid order transferring the matter to the High Court, then everything that has proceeded thereafter is invalid. Mrs Adshead has shown me a passage from a judgment of the late Lord Denning, who explains that if something is void it is void and does not need any order setting it aside. But that principle, as it seems to me, has no application here, for this reason. If the order transferring to the High Court was void, then it still leaves the county court with the jurisdiction to make a possession order. But in fact section 40, the terms of which I have previously referred to, gives the power to the High Court expressly to transfer an action which should be in the county court back to the county court. That is in fact what happened in this case and, it having been transferred back to the county court, the county court actually made an order. That order has been sought to be appealed by Mrs Adshead. She did not get permission to challenge it from the Court of Appeal and that is the end of it. There is thus no prospect of arguing in the Court of Appeal on this occasion that Ferris J's order dismissing the various applications and dealing with these matters should be reversed.
18. In the grounds of appeal, in addition to the point about substitution of the party and the point arising on the jurisdiction of the court, reference is made to a further argument that was addressed to Ferris J relating to the construction of clause 17 of the settlement agreement. That was a clause requiring Mrs Adshead to obtain legal advice before the signing of the agreement in order to make that agreement binding and enforceable. There was endorsed and certified on the agreement by a solicitor that she had been so advised and the agreement then became, so far as the parties were concerned, a binding agreement. This was a matter again dealt with by Ferris J and in my view there is no basis for arguing that the judge was wrong on that point.
19. Finally, there is a suggestion that in some way, first of all, Judge Maddocks has shown bias. Nothing that I have seen indicates bias of the type which would be required if there was going to be any challenge to Judge Maddocks' orders, and in any event that was not a matter before Ferris J. There is further a suggestion of bias in Ferris J. That is said to flow from the fact that he has made an order for costs on account. That certainly, as it seems to me, shows no basis for alleging bias. It is suggested that at some stage he showed contempt for litigants in person and that he and counsel for the bank were laughing about the death of Mr Adshead. Again, in the judgment there is absolutely no suggestion whatever that Ferris J has done other than deal with all the points raised by Mrs Adshead in considerable detail. If there was an incident during the hearing where it appeared that there was some laughter, it would seem to me that that simply must have been a serious misunderstanding on the part of Mrs Adshead. But in any event, the critical question is whether there is any prospect of success in the Court of Appeal in relation to the orders made by Ferris J and the judgment he gave. In my view there is no prospect of success and thus permission to appeal on that aspect also must be refused.
20. The third and final point relates to the joinder of James Wright. He applied to join and then withdrew the application on 22 January. The judge dealt with this in paragraph 60 of his reasons. He says:

"Both applications were treated as being before me. James Wright was not present in court, but Mrs Adshead spoke on his behalf, seeking the relief asked by the later application. While I doubted whether permission to withdraw was required, the right course appeared to me to dismiss the earlier application and to order James Wright to pay the costs of the RBS of both applications. I did this on the first day of the hearing."

21. The complaint on that matter really comes down to the fact that the judge ordered James Wright to pay the costs. It said to be unfortunate that the judge dismissed the first application rather than allowing it to be withdrawn, but in truth it makes no difference at all whether he did one or the other: he was bound in the circumstances of the application to join being withdrawn to order that costs be paid by James Wright. But, said Mrs Adshead, the bill which has been put in is very high. Well, that is not to the point, so far as this court is concerned. The question is whether the judge should have made the order. If there are points on the bill, then they must be taken to a costs judge who will assess the sum. Application to appeal that aspect should also be refused.
22. I now come back to the suggestion that if permission to appeal is refused, then permission to appeal to the House of Lords would be sought. The House of Lords has no jurisdiction to consider refusals of permission to appeal. Even if that had not been the case, there is nothing, as it would seem to me, on which permission to appeal to the House of Lords could conceivably be given by this court. Therefore that application also must be refused.
ORDER: Applications refused