England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Hughes
Mrs Justice Cox
Master Leslie

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 May 2005

Lord Justice Brooke:

1. This is an application by Mr Perotti for permission to appeal against an order made by Cox J on 27^th February 2004. By this order she directed that his application for a transcript of Master Leslie's judgment in this action dated 22^nd January 2004 to be provided at public expense should only be considered after he had furnished grounds of appeal (including full particulars of the grounds on which he relied in support of his contention that Master Leslie had violated his right to a fair and impartial hearing), such grounds to be provided to the court by 12^th March 2004. On 28^th May 2004 Hughes J made an order which purported to dismiss Mr Perotti's application for permission to appeal to the High Court. There are some procedural peculiarities about the progress of this appeal at High Court level to which I refer at para 24 below.
2. The underlying facts of the matter are relatively straightforward. At all material times Mr Perotti owned an interest in a flat at 64 Ivor Court, Marylebone. He had inherited this flat in 1991 and then let it to various tenants throughout the 1990s. The City of Westminster ("Westminster") is the local council tax authority. Mr Perotti's final tenant, with effect from April 2000, was a Mr Borghol, who was registered as liable to council tax on the property. On 13^th May 2002 Mr Borghol told Mr Perotti that he intended to move out on 27^th May and that he wished Mr Perotti to make an appointment to visit the flat that day to take an inventory and to repay his deposit, in default of which he would not terminate his tenancy. Mr Perotti did not make an appointment or visit Mr Borghol's flat on 27^th May, and it was later held by the County Court that Mr Borghol's tenancy continued until 2^nd August when creditors of Mr Perotti repossessed the flat pursuant to an order of the High Court.
3. However that may be, in early June 2002 Mr Borghol told Westminster that he was not liable for council tax after 27^th May and that Mr Perotti was the person liable. The council therefore sent a final bill to Mr Borghol and an opening account to Mr Perotti.
4. On 29^th August 2002 Mr Perotti rang the council to tell its staff that the bill was wrong, and that the flat had been repossessed on 2^nd August. He faxed a confirmatory letter on 31^st August. The council has a record of the telephone call, but not the letter which seems to have been mislaid in its offices. It maintains that it sent Mr Perotti a request for some further information it needed, which it did not receive until nearly a year later.
5. The council applied for a liability order, and in the absence of any response from Mr Perotti, on 23^rd September 2002 a liability order was made by the magistrates' court, on Mr Perotti's non-attendance. Mr Perotti then received a number of letters from bailiffs threatening to distrain his goods, all of which he ignored.
6. He was also assessed in due course for council tax on the flat for the 2003-4 financial year, and when he did not pay, on 11^th June 2003 the council issued a summons for a further liability order which was returnable on 23^rd July 2003. On 10^th July Mr Perotti wrote a letter to the court explaining the position. He also sent a faxed copy to Westminster, who did not attach it to his account record. On 22^nd July the court itself sent a copy of his letter to Westminster. On 23^rd July Mr Perotti did not attend court, and a further liability order was made.
7. Eventually, on 3^rd August Westminster acted on the copy letter it had received and deleted all its records relating to Mr Perotti's liability for council tax on the flat following Mr Borghol's departure. It also withdrew its enforcement instructions with regard to the 2002 liability order. Mr Perotti was not told of this until 15^th August, and in the meantime he had issued his claim in the High Court in the present action. He claimed unspecified exemplary and/or aggravated damages against Westminster in excess of £15,000 in respect of these matters.
8. On 15^th September 2003 Westminster filed an application for an order striking out the claim form and/or ordering summary judgment in its favour. It supported its application with a witness statement by one of its council tax managers. On 1^st January 2004 Mr Perotti filed a witness statement in reply. On 22^nd January 2004 Master Leslie made an order striking out Mr Perotti's claims in respect of the administration of council tax and the obtaining of liability orders in the magistrates' court, and directing summary judgment for the defendants in respect of Mr Perotti's claims relating to the Protection from Harassment Act 1997 and the Human Rights Act 1998 and in respect of his claim of misfeasance in public office. He ordered Mr Perotti to pay the defendant's costs of the claim, and refused permission to appeal and permission to obtain a transcript of the judgment at public expense.
9. On 26^th January 2004 Mr Perotti filed an appellant's notice in the High Court Appeals Office. He did not include in his Notice of Appeal any grounds of appeal identifying whether he was contending that Master Leslie's order was wrong (see CPR 52.11(3)(a)) or unjust because of a serious procedural or other irregularity in the proceedings before him (see CPR 52.11(3)(b)), other than a complaint made in these terms:

"The Master violated my rights to a fair and impartial hearing pursuant to Article 6.1 but I am unable to state my grounds for appeal until I have received, at public expense, a transcript of the judgment below of Master Leslie of 22.1.2004 herein (Master Leslie having refused me same). There are many grounds for appeal which I will provide on a witness statement once I have received said transcript of judgment."

10. He stated that he was seeking an order that he be provided with a transcript of the judgment in the court below and a stay of his appeal until the transcript was received. He referred to a pending adjudication in the Court of Appeal: for the judgment to which he was referring see Perotti v Watson [2004] EWCA Civ 269 (judgment given on 11^th and 26^th February 2004), in which Chadwick LJ refused (at paras 56-61) to grant Mr Perotti permission to appeal in another case against an order of a High Court judge who had similarly refused to direct the preparation of a transcript of a judgment at public expense.
11. Mr Perotti asserted in his notice of appeal that no appellate court could possibly adjudicate his appeal without seeing both the transcript of the Master's judgment and his grounds of appeal, and that any adverse decision prior to receipt of the same would violate his rights whether under ECHR Article 6 (1) or at common law.
12. Section 10 of his notice of appeal contained a request for additional orders which were linked to his request that all the proceedings on his appeal should be stayed until the transcript was forthcoming.
13. On 27^th February 2004 Cox J gave interim directions. They were drawn up by the court in a standard form and were in these terms:

"The Court is unable fully to consider the request for permission to appeal until the following directions are complied with, therefore:

IT IS ORDERED THAT

1. Grounds of appeal, including full particulars of the grounds relied upon in support of the alleged violation of your right to a fair and impartial hearing, be provided to the Court by Friday 12^th March 2004.

2. The application for a transcript of Master Leslie' judgment to be provided at public expense will be considered only after compliance with paragraph 1 of this Order.

3. All other applications are adjourned until paragraph 1 has been complied with.

4. [left blank]

5. The Request for permission to appeal to be listed on a date in the week beginning [enter date], of which notice will be given to the Appellant, for the Appellant to show cause why it should not be dismissed unless all directions are complied with on or before [enter date]."

Although the judge signed the order, neither she nor the staff at the High Court Appeals Office completed paragraph 5 of this order before it was signed and sealed.

14. On 2^nd March Mr Perotti wrote a letter to the judge's clerk stating that he could not possibly provide his grounds for appeal without seeing the transcript of the judgment. He said that without the judgment he did not remember the points held by the Master, with the consequence that he could not provide the grounds. He said that the Court of Appeal had always granted him transcripts of judgments on all the multitude of applications he had made to that court over the last 12 years and that Eady J (in the Queen's Bench Division) and all the judges in the Chancery Division had always allowed him transcripts of judgments at public expense.
15. On 10^th March Cox J made an order dismissing his application that she reconsider her earlier order. She also refused permission to appeal against that order. She said that his main complaint against Master Leslie's order related to his alleged violation of his right to a fair and impartial hearing. He did not need the transcript of the judgment in order to state his grounds of appeal.
16. Nothing then happened until 7^th May, when Mr Perotti was sent a letter informing him that his notice issued on 26^th January 2004 had been listed for Dismissal on 28^th May 2004. No explanation was given of the concept "listed for dismissal". Mr Perotti attended before Hughes J that day, when he repeated that he could not provide any grounds of appeal until he had seen a transcript. Hughes J rejected this contention. He ended his short judgment by saying:

"[T]his is the stage at which what is being considered is whether Mr Perotti discloses any arguable grounds for appeal, and he has not. He has had every opportunity to do it, and the time has come when this application must be refused."

He told Mr Perotti that there was no appeal from a refusal of permission to appeal. In the order that was subsequently drawn up the court recorded the fact that Mr Perotti's application for permission to appeal had been listed for dismissal, and that the judge ordered that "this application be dismissed".

17. On 29^th May 2004 Mr Perotti wrote to the Civil Appeals Office expressing his concern about Hughes J's order. At that time he was subject to a direction by Chadwick LJ to the effect that the Civil Appeals Office should not accept any further applications from him until after the delivery of judgment in a pending case. (This is a reference to Perotti v Collyer-Bristow (a firm) [2004] EWCA Civ 639, [2004] 4 All ER 53 in which judgment was given on 21^st May 2004, when this court required Mr Perotti to show cause why a more extensive civil restraint order should not be made against him: for the later history of this matter, see Perotti v Collyer-Bristow (a firm) (No 2) [2004] EWCA Civ 1019, [2004] 4 All ER 72). Mr Perotti said in his letter that he had been in the dismissal courts before but had never had anything dismissed. He therefore did not know anything about this situation, and he could not find any reference to the dismissal court in the index to the CPR. He added that the Court of Appeal had always allowed him transcripts of judgments at public expense for all his applications for permission to appeal, but Hughes J had refused to sanction this.
18. Because there was a dearth of papers about this case both in the Civil Appeals Office and in the High Court Appeals Office, I caused inquiries to be made, and eventually on 10^th November 2004 Mance LJ and I directed that a transcript of Master Leslie's judgment be ordered at public expense, and that Mr Perotti might file a Notice of Appeal within ten days thereafter. We directed that this notice should state not only why he was complaining about the handling of the matter in the High Court but also why he said that he should be permitted to appeal in the High Court against Master Leslie's order on the merits.
19. We now have a copy of Master Leslie's judgment, a long Notice of Appeal, and some written representations settled by counsel who appeared for Westminster before the Master. We wished to see Master Leslie's judgment in order to help us decide whether or not we should remit the matter to the High Court or to stop it progressing any further.
20. Having read all the papers, I am satisfied that Cox J was correct in refusing to direct the preparation of a transcript of Master Leslie's judgment at public expense until she could understand what Mr Perotti was appealing about. He had heard Master Leslie give his judgment, and he must have known why he considered that he had a real prospect of showing that the judgment violated his right to a fair and impartial hearing and/or was wrong in the way he had already alleged in very general terms.
21. CPR 52.2 prescribes that all parties to an appeal must comply with the relevant Practice Direction, and para 3.2 of the Practice Direction to CPR Part 52 prescribes that the grounds of appeal should set out clearly the reasons why CPR 52.11(3)(a) or (b) is said to apply. Mr Perotti should have set out his grounds of appeal. He should also have complied with the requirements of para 5.6 of the Practice Direction (prior to its recent revision) and filed the requisite bundle of documents. These would have enabled the High Court judge to understand what the appeal was all about, and together with the grounds of appeal would have provided Cox J with material on which she could exercise her discretion to decide whether or not to order a transcript of the judgment at public expense.
22. We have been told by both Master Leslie and by counsel for Westminster that Mr Perotti was permitted to use his own tape recorder at that hearing, so that if he had wished he could have listened to the recording of the judgment and/or had it transcribed. Finally, it was open to Mr Perotti to ask counsel for Westminster for a copy of his note of the judgment: for counsel's duty in this regard towards a litigant in person, see para 5.2 of the Practice Direction.
23. What Mr Perotti was not entitled to do was to do none of these things and then expect that the taxpayer should pay for a transcript of Master Leslie's judgment (at a cost of £1.43 for every 72 words) without first explaining what he was complaining about.
24. My one anxiety about the progress of this case at High Court level was that Cox J's order of 27^th January 2004 was not properly completed, and the notice dated 7^th May did not explain in any detail what was meant by the concept that Mr Perotti's notice of appeal was listed for dismissal. If it was being listed to enable Mr Perotti to show cause why the notice of appeal should not be dismissed by reason of his failure to comply with an order or with certain requirements of the rules or the practice direction it should have said so explicitly. It is important, particularly for litigants in person, that the procedure the court is adopting should always be transparently clear. This is particularly important in the present context because this court has no jurisdiction to entertain an appeal against a refusal of permission to appeal by a lower appeal court on the merits, whereas it does possess jurisdiction if the complaint is being made that a lower appeal court should not have imposed a sanction on an appellant for failing to comply with a procedural requirement in connection with his appeal.
25. However, now that I have read all the papers that were before Master Leslie, together with the Master's judgment, I can see no real prospect of Mr Perotti persuading the Court of Appeal to allow an appeal against Cox J's or Hughes J's orders and to remit the matter to the High Court to reconsider the appeal on its merits. I am quite satisfied that this action was totally without merit and that Master Leslie was well justified in making the order he did. In so far as Mr Perotti was complaining about what Westminster was doing or failing to do in its performance of its public law functions, his appropriate remedy lay in a timeous application to the Administrative Court. And however incompetent Westminster or its contractors (on its behalf) may have been from time to time in handling this matter, they were not susceptible to a claim along any of the lines suggested by Mr Perotti. Indeed, if Mr Perotti had attended the magistrates' court hearing(s) or responded to the bailiffs' letters, the muddle would have been detected and corrected much earlier than happened in fact.
26. I have read carefully Mr Perotti's long Notice of Appeal. He relies strongly on his contention that the master ought to have directed an issue to be tried as to whether or not the council did misfile the letter he faxed to it on 31^st August, because he believes that if he can show that it did not, he would somehow or other have a cause of action against it for harassment or misfeasance in public office or violating his human rights. He did not, however, respond in evidence to Mr Thornton's statement (in paras 6-7 of his witness statement) that the council sent him an enquiry form requesting further details after he telephoned on 29^th August 2002, and that when this request was not returned the account progressed through the normal recovery cycle. If this enquiry form went astray in the post, then Mr Perotti could easily have put things right by giving his account of the matter to the magistrates three weeks later.
27. All in all, this is a storm in a teacup, and never warranted the issue of High Court proceedings in the first place. The master was quite correct to make the orders he did, and Mr Perotti was quite wrong to conduct his appeal in the High Court as he did, failing to furnish any grounds of appeal or any bundle of documents in support of his appeal.
28. For these reasons I would dismiss this application.
29. Mr Perotti is subject to an extended civil restraint order which enables this court to deal with his applications on paper, if it thinks fit, without the need for an oral hearing. We are giving this judgment in court because his application raises issues of practice of general application in connection with High Court appeals. For this reason this judgment is released from the general embargo on the citation of judgments of this type.
30. By way of an addendum, I have now had an opportunity of considering the standard forms currently in use in the High Court Appeals Office. There is a standard letter which warns a litigant that if he does not lodge the required documents or issue an application notice within a specified time, the case in its current form will be listed for dismissal. It then explains that the purpose of a dismissal hearing is for the appellant to show cause why the case should not be dismissed for failure to comply with the court's directions, and tells him that he will be notified of the date of the dismissal hearing once it has been arranged.
31. Whether a requirement of a rule or a Practice Direction can be properly described as "the court's directions" may be open to doubt, but in general this letter makes clear the purpose of a dismissal hearing. It would be much better if the same explanation were given in the letter which formally notifies the litigant of the date when the appeal is listed for dismissal. The court's order should then show that the appeal was dismissed for failure to comply with an identified requirement of a rule, practice direction, or court order, and not be made in the open-textured format used in recording Hughes J's order in the present case (see para 16 above).

Lord Justice Mance:

32. I agree.