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
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		29th July 2004

1. LORD JUSTICE PILL: The court has convened to hear applications by Mr Ayobiojo, who is at present detained at Her Majesty's Prison Parkhurst. A video link was set up so that he could make those applications from the prison and we could hear his submissions and converse with him by means of the video link.
2. I see now on the screen a prison officer. Could you identify yourself, please?
3. MR DANTON: Yes, Officer Danton, HMP Parkhurst, sir.
4. LORD JUSTICE PILL: Thank you very much. Is Mr Ayobiojo detained at the prison?
5. MR DANTON: He is detained at HMP Albany, next door, my Lord.
6. LORD JUSTICE PILL: Yes. Have you spoken with him this morning?
7. MR DANTON: I have spoken to the governor of HMP Albany and Mr Ayobiojo is refusing to attend.
8. LORD JUSTICE PILL: Yes, and you are satisfied from what you have been told that he has been given the opportunity to come to Parkhurst and to sit where you are now sitting?
9. MR DANTON: Yes, my Lord, I believe he has been given the opportunity two or three times.
10. LORD JUSTICE PILL: Yes. Thank you very much for your cooperation. We propose to deal with the applications in his absence but there is no point in doing that over the video link. So, subject to arrangements being made, that link can now be closed. Thank you very much for your help.
11. MR DANTON: Thank you, my Lord.
JUDGMENT
12. LORD JUSTICE PILL: The court has convened to hear a series of applications by Mr Bashiru Adebola Ayobiojo, the applicant, who is at present detained in Her Majesty's Prison Albany. A video link was set up to enable him to make his applications from the prison and what was said on the video link this morning should, please, be transcribed. It is not now in use because a prison officer at HMP Parkhurst, Mr Danton, has been in discussion with the governor of the nearby prison, where the applicant is detained, and has told the court that his information is that the applicant does not wish to appear and present submissions to the court by way of the video link. We have a good many written submissions from him but nothing specifically in relation to today's appearance on the video link, except for an application for an adjournment, to which I will refer.
13. In those circumstances the court proposes to proceed with the applications and to consider them on the basis of the written submissions and in the absence of the applicant. The video link has been turned off, there being no point in having the system in operation if the applicant does not wish to appear. Earlier this morning an email -- which my clerk was requested to provide -- to the office that the court did propose to proceed if the applicant chose not to appear on the video link.
14. The central application is an application for permission to appeal from the order of Pitchers J made on 26th March 2003. The judge set aside a part of an order of Master Ungley dated 12th December 2002. He made a final charging order on property at 10 Holmdale Road, Chislehurst, Kent, which is property believed to be owned by the applicant and his former wife, Angela Wendy Joy Ayobiojo, who has been made a party to the applications. The applicant is serving a long prison sentence. Pitchers J refused a production order and heard the appeal from Master Ungley in the applicant's absence. However, his former wife did appear before the judge and made submissions to him.
15. The basic facts are set out in the judgment of Pitchers J. The applicant was a customer of the proposed respondents, Easyspace Limited, in the year 2000. They operate a domain name registration and hosting service and a dispute arose over the sum in issue between the parties. The applicant brought proceedings against Easyspace, claiming £186,760.
16. In May 2001 Easyspace issued an application that the claim should be struck out on the basis that it had no real prospect of success. Master Prebble acceded to that application by order of 15th October 2001. He dismissed the claim and ordered indemnity costs against the applicant. A default costs certificate was issued on 30th May 2002 in the sum of £38,396.41 in favour of Easyspace. When that sum was not forthcoming, Easyspace took enforcement proceedings and on 4th November 2002 Master Ungley granted Easyspace an interim charging order over the applicant's interest in the property held jointly by him and Mrs Ayobiojo. Easyspace were then told that Mr and Mrs Ayobiojo had been divorced on 19th March 2001. They claim that from that date the applicant did not have an interest in the property. They produced a divorce petition in manuscript form, which expressed the intention in the prayer that the property be transferred to Mrs Ayobiojo.
17. On an application for a final charging order Master Ungley paid great weight to that petition and discharged the interim charging order. He accepted that the transfer was not reflected in the decree nisi or the decree absolute, that no step had been taken to transfer the property and he had in mind the decision of Austin-Fell v Austin-Fell & Another (1990) FA 172, to which I will refer.
18. Application was made to obtain the documents from the divorce registry and by order of District Judge Roberts, sitting at the Principal Registry of the Family Division, it was ordered that:

"Leave is given to Theodore Goddard Solicitors to inspect and receive a copy of the divorce Petition filed with the Court in Cause number FD00D15559 (Ayobiojo v Ayobiojo) for use in proceedings in the High Court of Justice, Queens Bench Division, under Claim number HQ0007101 (Ayobiojo v Easyspace Limited) and thereafter as directed by the High Court, Queens Bench Division."

19. Upon examination of the petition, Easyspace appealed against the order of Master Ungley on the basis that the evidence on which the Master had relied was untruthful and that in any event, even if the petitioner had expressed an intention to transfer the property, the Master had exercised his discretion wrongly. By the time the case came before Pitchers J, Mrs Ayobiojo had been joined as the second respondent to the appeal.
20. In a carefully reasoned judgment, Pitchers J allowed the appeal. He stated that Mr and Mrs Ayobiojo had proffered a number of reasons why the original petition at the Registry did not record the intention to transfer. The judge made this comment:

"On all that evidence, both the inherent petitions and the various other matters that I have set out, I am absolutely satisfied that the document produced at the hearing before the Master was not a genuine petition."

I will read one paragraph from the judgment, page 4:

"Following the hearing before the Master the appellant's solicitors checked the file at the Principal Registry. We have the full file here today and both the parties and myself have had any access that we needed to it."

That, of course, included Mrs Ayobiojo:

The crucial point is that the petition held on the file is different from that produced in the court below in one vital particular. The main part of the petition, the body of the petition, although not an exact copy, follows almost word for word what appears in the petition produced in the court below. However, in the prayer all the applications for ancillary relief are scored through. There is therefore on that copy of the petition no application for a property adjustment order."

The judge then set out the argument presented to him, the claim that the true position was that there had been an application for transfer. The judge concluded at page 7:

"On all of that evidence, both the inherent improbability of the account of the lost petitions and the various other matters that I have set out, I am absolutely satisfied that the document produced at the hearing before the Master was not the genuine petition, but an amended version of it with the prayer added later. What I cannot say for certain on the evidence that I have at the moment is when that was done. The female respondent has submitted, in the course of these proceedings, a copy of what is undoubtedly the petition with the property adjustment order claimed which is on faxed paper with a faxed date headed in December 2000. There have been no investigations of those documents and I cannot be sure, therefore, whether the bogus addition of the prayer is a recent invention or an older one. The only conclusion I can come to, however, in relation to this is that the female respondent knew perfectly well when she produced this document in the court below that it was not genuine."

21. The judge went on to say that even if the petition had expressed an intention to transfer, he would still have allowed the appeal in the light of the guidance given in Austin-Fell. That was a decision of Waite J in circumstances where it was held that a judgment creditor's charging order over a husband's interest in property should only be defeated by the wife's interest in exceptional circumstances. The headnote reads:

"Held, allowing the appeal, that a judgment creditor, however wealthy, had an expectation that a charging order over a husband's beneficial interest in the matrimonial home would be made in his favour; that in circumstances where the equity in the property was insufficient to meet the judgment debt and provide adequate accommodation for the wife and children, the court had to balance the expectation of the creditor and the rights of the wife and children to occupy the property but it was only in exceptional circumstances that the court would order the outright transfer of the property to the wife; that, although the wife's equity in the property was insufficient to purchase a property to accommodate her and the children near her place of work and the children's schools, there were no exceptional circumstances to exclude the bank's expectation; and that, therefore, there would be a charging order but its enforcement would be postponed until the younger child attained her majority."

22. Having considered that case, the judge concluded at page 9:

"The balance is absolutely overwhelmingly in favour of making this order. Even if that prayer in the petition produced below had represented a genuine intention by the parties to the marriage which for some reason had not been put into effect, I would still have found, applying the case of Austin-Fell and the principles set out there, that a charging order should be made."

23. The judge also referred, before expressing that conclusion, to other factors. Also at page 9:

"It is clear from the undertaking that was given on 21st December that there is substantial equity in the property. At that time it was said to be about £150,000. The female respondent asserts this morning that it is no more than that. Despite a recent slowing in the increase in house prices, it certainly is not going to be less than it was two years ago. Therefore the male respondent's share is well in excess of the judgment debt and thirdly, and importantly, the appellants have no intention of enforcing the charge so long as the female respondent and her children live there."

24. The grounds of appeal are that the applicant was refused legal representation at the trial, that a production order with respect to him being in custody was refused, that the judge was wrong to accept Easyspace's argument that the petition was forged and was wrong to conclude that, even if the petition was not forged, he would still have allowed the appeal. It is claimed that the conduct of the case by Pitchers J was unfair and showed a bias towards the applicant and his former wife.
25. I refer now to a number of other applications which have been made, though the extent to which these are current is not altogether clear because the applicant, very recently, has submitted fresh applications and I am not entirely clear whether these replace, or are supplemental to, the existing ones, but I work on the basis that they are supplemental.
26. There is an application of 17th July 2003 for an order that the applicant be granted permission to adduce the further evidence contained with the application witness statement addressing Latham LJ's decision, conveyed in Miss Sarah Iwi's letter dated 7th July 2003, Ms Iwi being an officer in the Civil Appeal Office. That refers to a decision by which no production order was made and no order for legal aid in the applicant's favour was made.
27. There is an application of 1st August 2003 that Mr Engel, Mr Blower, Addleshaw Goddard, solicitors, Mr John Clive Erik Young and Mr Sam Evans be joined as defendant with Easyspace Limited and that the case against them be joined with the present one.
28. There is an application of 20th July 2004 that a hearing scheduled for 21st July be postponed for eight weeks, on the ground that the applicant was not in perfect health and had been indisposed in consequence of being incarcerated in gaol, also that further time to assess documents with his ex-wife has been denied as well as access to facilities without which it is impossible effectively to prosecute the appeal. He is seeking injunctive relief, he says in his application, to address denial of access to facilities.
29. There is a second application of the same date that the court grant legal representation to the applicant because of the physical and mental effects of incarceration, the serious consequences of the case and the nature of the injustices presented by the "bullish and corrupt defence" of the respondents.
30. Again on 20th July there is an application that the President of the Principal Registry produce a true copy of the full divorce petition and all associated documents and records of the claimant and Mrs Angela Wendy Ayobiojo.
31. There is a fourth application of the same date that the respondents and their solicitors, Addleshaw Goddard, acted unlawfully and perverted the course of justice by removing the file of the claimant and his wife's divorce from the Registry without lawful authority.
32. There are further applications bearing yesterday's date. First, there is an application for an order of committal for contempt of court against Addleshaw Goddard, solicitors, Mr Engel and Mr Blower of Addleshaw Goddard because of the alleged removal of the divorce file of the claimant without a court order. The second application is that the present applications be heard by the President of the Court of Appeal or his deputies and not by any judge from the employment courts or any already associated with the case on the ground that the claimant faces ascertainable acts of partiality. The third application is that today's hearing be stayed to allow an appeal against Master Prebble's decision and that of Collins J of 4th July 2003 in relation to a claim that orders in the correct form were not made. Fourthly, there is an application that the hearing of the application be postponed until the outcome of the application for an order of committal for contempt of court is known and also the decision on the application for an interim remedy granting access to necessary facilities.
33. In relation to two of those applications, I make comment at this stage. When a High Court judge, I sat as a part-time judge at the Employment Appeal Tribunal and I also deal with employment cases in this court. I am quite unpersuaded that there are any grounds upon which I should recuse myself, either for that or any other reason. Having conferred with my Lord, Jonathan Parker LJ, I understand that he, not having had such EAT experience, finds no need to recuse himself on that or other grounds.
34. Secondly, I refer to the order of Collins J, to which the applicant referred. Collins J, having heard an application for permission to appeal against Master Prebble, stated on 4th July 2003:

"This is an attempt to pursue matters which have been concluded against you. There is still no good explanation for the long delay in trying to appeal Master Prebble's order and your allegations against Pitchers J are groundless. You have had a proper hearing in accordance with the Rules.

There is no basis for an oral hearing."

35. I see no basis for adjourning the application or saying anything further about the application that the case be heard by the President of the Court of Appeal or his deputies or that the hearing should be stayed to allow appeals against the decisions of Master Prebble and Collins J.
36. In my judgment, the application for permission to appeal against the decision of Pitchers J fails. It is not arguable that, on a hearing in this court, the court would reverse the substance of his findings, which are clearly expressed and refer to appropriate authority.
37. There remain the ancillary applications, which arise out of the course which proceedings have taken. There has been a continuing application, which is pursued in the applications to which I have referred, for legal aid. I agree with the single judge who heard the application on paper that it is not appropriate to grant legal aid in the circumstances of this case. The single judge, Lord Justice Mantell, considering the matter more generally, on 24th June 2003 stated:

"Given that there was no conflict between the applicant and Mrs Ayobiojo and Mrs Ayobiojo was permitted to address the court on behalf of both her herself and the applicant, it was well within the judge's discretion not to order production of the applicant or to make a representation order. His other findings, in themselves unimpeachable, fully justify the making of a final charging order.

Quite apart from the fact that this is a second appeal, the proposed grounds have no realistic chance of success."

I respectfully agree with all the remarks of Mantell LJ.

38. The position as to representation was considered in this court in Perotti v Collyer Bristow and Others [2003] EWCA Civ 1521, a decision of 6th October 2003, the leading judgment being given by Chadwick LJ, with whom Carnwath LJ agreed. Paragraph 31:

"Miss Moore suggests in her written submissions, in my view correctly, that the obligation on the state to provide legal aid arises if the fact of presenting his own case can be said to prevent him from having effective access to the courts. But a litigant who wishes to establish that without legal aid his right of effective access will have been violated has a relatively high threshold to cross.

32. It is, in my view, important to have in mind that however much this court, and indeed any other court, would welcome the assistance that can be given by a legally qualified and competent advocate, the test is not whether (with such assistance) this court would find it easier to reach the decision which it has to reach on the facts of the case. This court, and other courts, have ample experience of cases in which the material is not presented in an ideal form; and have not found it impossible to reach just decisions in such cases. The test under Article 6(1) [and that is of the Convention], as it seems to me, is whether a court is put in a position that it really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter on which it has to decide. In such a case it may well be said that a litigant is deprived of effective access; deprived of effective access because, although he can present his case in person, he cannot do so in a way which will enable the court to fulfil its paramount and over-arching function of reaching a just decision. But it is the task of courts to struggle with difficult and ill-prepared cases; and courts do so every day. It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do -- that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts."

39. It should be added that an offer was made to the claimant by a letter from Ms Iwi dated 7th July 2003. She quotes the direction of Latham LJ, who was the supervising lord justice, that she should:

" ... write, in my capacity as the solicitor in this office, to the Citizens' Advice Bureau in this building and ask them to approach the Bar Pro Bono Unit on your behalf to see if that Unit would be prepared to provide legal argument free of charge on your behalf in relation to both applications at that hearing. However I am only to do so if you wish me to and you must let me know within the next ten days."

On 22nd July Ms Iwi wrote:

"The time limit set out in my letter dated 7th July 2003 is extended to 28th July 2003. If I have not heard from you by that date, then I shall proceed on the basis that you do not wish me to approach the Citizens' Advice Bureau."

No reply or application was made.

Earlier this week, by letter of 26th July 2004, the applicant wrote:

"I will be very grateful if you will be kind to please make necessary arrangements for the said Pro Bono assistance very soon indeed.

"Please inform the Court of Appeal of progress on this matter with view to future hearing of the case and the need to stay proceedings until the legal representation is arranged."

40. Having regard to the efforts made last year to assist the applicant, I am unable to grant an adjournment upon the basis of a letter written on 26th July 2004; that is, three days ago. I regret that I have to regard this as an attempt to put off the day when the application is heard. I repeat that the applicant has had the opportunity, by way of the video link, to address the court today. I am not prepared myself to adjourn an application on this very belated taking up of an offer which expired a year ago -- a year ago, that is, within two days.
41. I am not prepared to grant an adjournment by reason of the reference to the applicant not being in "perfect health" and certainly not without more particulars than have been given.
42. Neither, as I have already indicated, am I prepared to make a representation order in this case. The amount of public funds for legal aid are limited. Seeing, as I do, no merit in the application in the underlying appeal, it is in my judgment inappropriate to take further steps of that kind to assist the applicant.
43. I do not consider that there is any breach of Article 6(1) of the Convention in the circumstances. Reference is made to the equality of arms principle. That does not require the courts to have acted in any way differently from the way in which they have.
44. Several of the applications are quite inappropriate to place before this court, particularly in the context to which I have referred. I am not prepared to make orders against the President of the Principal Registry or to find it arguable that this court should make such an order. Neither am I prepared to make any order or grant any permission in relation to the alleged misconduct of the proposed respondent's solicitors, still less to consider making an order of committal or contempt.
45. It appears to me that the correct procedure was followed in relation to the Registry. The court's permission was sought and an appropriate order made by District Judge Roberts. When the matter came before Pitchers J, he was entitled, and indeed was right, to make the investigation which he did into the provenance of the documents. It is not arguable that, either procedurally or in substance, he was in error in the course he took.
46. I repeat that, on the alternative ground on which the judge allowed the appeal, there is no prospect of a successful second appeal to the court.
47. It would be quite inappropriate to join the parties which, in the application of 1st August 2003, the applicant sought to have joined to these proceedings and it would be inappropriate to make any further order for the production of fresh evidence.
48. For the reasons I have given, I would give no relief to the applicant. I put it in that way because it seems to me that this court would have no jurisdiction to grant relief upon some of the applications made. Insofar as it has jurisdiction, and specifically on the underlying case in relation to the order of Pitchers J regarding the property, there is no arguable ground for appeal.
49. Accordingly, I would refuse all the applications.
50. LORD JUSTICE JONATHAN PARKER: I agree.