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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE ROSE)

		Royal Courts of Justice Strand London, WC2
		9 March 2006

1. LORD JUSTICE BROOKE: This is an application by Mr Harvey for permission to appeal against an order made by HHJ Rose sitting in the High Court on 15 July 2005 whereby he struck out the claim in this action and made a civil restraint order against Mr Harvey. He also ordered Mr Harvey to pay the costs of the action on an indemnity basis, and on 26 July 2005 he assessed those costs summarily in the sum of £13,000. There was an earlier hearing of this application in this court on 25 January 2006, when I adjourned it in order that Mr Harvey should file all the evidence before HHJ Rose and should also draft particulars of claim in some sort of intelligible form so that the application might proceed in a way in which I could understand what it was that Mr Harvey had been seeking to claim. All these matters have now been done, and Mr Harvey has also made an application for permission to adduce a volume of evidence on the hearing of his application.
2. The background history of this prolonged dispute is relatively straightforward. The house in which Mr Harvey used to live in Wimbledon is a large house divided into four flats. At all material times Mr Harvey was the owner of Flat 1 on the ground floor. A nephew was also concerned in the ownership of the flat but he did not live there; and Mr and Mrs Gaskin were the long-standing owners of Flat 3 which was immediately above Flat 1. The other two flats were owned by Tadema Holdings Limited, a company registered in the British Virgin Islands. Under the leases of the four flats the management of the common parts was carried out by a company called Holly Lodge (Wimbledon) Management Ltd., ("HLM"), a company whose only members are the owners of the four flats.
3. In the autumn of 2000 and the spring of 2001 there were some incidents in which water leaked down from the Gaskins' flat into Mr Harvey's flat below. The episode which gave rise to all the ensuing trouble occurred on 7 March 2001. Both HLM and the Gaskins had taken out liability insurance with the Independent Insurance Company, a company which went into liquidation later in 2001. It appears that in their capacity as HLM's building insurers, they paid £1,360 in settlement of a claim for damage to the fabric of the flat, but in their capacity as the Gaskins' liability insurers they denied liability for the damage done to the contents of the flat. Their brokers gave Mr Harvey the name of the contractors who were responsible for the faulty workmanship that caused the leak in the pipe, and suggested that he should pursue his claim against them if he saw fit. Mr Harvey did not do this, nor did he make a claim against the Gaskins under the doctrine of Rylands v Fletcher. Instead he entered into voluminous correspondence with the Gaskins, and also posted abusive notices about them in the common parts of the building.
4. In January 2002 the Gaskins' solicitors wrote Mr Harvey a long letter in which they set out the history from their client's perspective and suggested that he should pursue his claim against the contractors, instead of conducting his campaign against their clients, who they said would be entitled to claim damages for defamation, harassment and nuisance. They asked him to bring his campaign of abuse to an end. Instead of acting on their advice, Mr Harvey embarked on litigation. It is not clear to me whether I have the papers relating to all the litigation in which Mr Harvey had been involved.
5. In the first action, issued on 30 May 2002, which was brought in the High Court, Mr Harvey claimed damages for malicious falsehood against Mr Gaskin. He said that Mr Gaskin had uttered lies and falsehoods to his insurers through some ulterior financial motive. In October 2002 summary judgment was entered for the defendant, and although various appeals followed, these were disposed of finally by the Court of Appeal in March 2003, although disputes about ancillary matters continued into 2004. Mr Harvey had stopped paying the half-yearly service charges to HLM, so they had to sue him for recovery of the arrears. In due course Mr Harvey paid the arrears, and that case proceeded on a counterclaim by Mr Harvey in the Kingston County Court based on the premise that the recurrent water ingress into his flat from the Gaskins' flat above arose from HLM's negligence in the management of the property, for which they were responsible to Mr Harvey under the terms of his lease. In January 2003, a District Judge struck out the amended counter claim for various technical reasons, and although the court was to give Mr Harvey one final opportunity to file a viable counterclaim, all his claims in those proceedings were finally struck out in August 2004, subject to High Court proceedings to which I must refer.
6. In the meantime, on 18 August 2003 Mr Harvey had issued fresh proceedings against Mr and Mrs Gaskin for damages for negligence and trespass to property. The matters relied on related to the same dispute. Complaint was made not only of the water ingress, but also of Mr Gaskin's fraudulent and deceitful conduct. Reference was made to a fraudulent pleading, the way in which evidence had been rigged, and the misuse of solicitors and the members of a property company to prevent Mr Harvey from discovering the workings of the fraud. In January 2004 a district judge at the Kingston County Court struck out the particulars for claim, and on 2 August 2004 Mr Harvey's application for permission to appeal against that order was dismissed.
7. I have referred to High Court proceedings. I have very little evidential material about these proceedings, but the final orders in the County Court were made by a circuit judge in court at a hearing at which Mr Harvey was not present. Mr Harvey says – and I have no documents to throw light on this – that he then applied to the County Court for the hearing to be reinstated, and it was directed that it would not be reinstated. There was therefore an issue as to whether Mr Harvey had had notice of the hearing in the County Court. Mr Harvey tells me that he sought permission to appeal against the County Court's direction that these hearings could not be reopened to the High Court. I know very little about the proceedings in the High Court, except that there came a time when Mitting J directed that:

"Unless the application dated 18 February 2005 and sealed on 22 February 2005 was amended and resubmitted within fourteen days so as clearly to state the matters specified below, it is refused. Matters to be specified:

"1) who has provided the legal aid applied for;

"2) any statutory secondary legislational case law relied on;

"3) if legal aid has been claimed for a person other than the claimant for example the Legal Services Commission, what if any steps had been taken to notify that person of the application.

"Reasons:

"As currently drafted the notice of application is incomprehensible and apparently baseless. Because the defendant is acting in person I give him this last chance to make an application which is capable of being understood."

8. Mr Harvey has told me today that he took this order to a solicitor, who told him that he could understand what Mr Harvey was asking for. All I can say is that an order has been produced to me today, dated 29 April 2005, in which Mitting J ordered:

"… that the application be refused.

"Reasons: The court has no power to grant the release sought. The defendant must pursue his application on public funding with the Legal Services Commission, who are not parties to this claim."

So it appears that he was asking the court to direct that he be provided with public funding to pursue his claim, and the court clearly had no authority in the matter at all.

9. I have said it is unclear to me what relief was being sought in the High Court. There is with the papers an application, sealed in the High Court, which purports to be an application that:

"Morgan HHJ and Williams HHJ, who were the two judges who brought the previous proceedings to an end, explained to their public why undue influence is repeatedly being exercised on the corrupt official Mr Mark Aldridge to (1) destroy specific documents on the court file (2) fake orders that an appellant has been notified that a permission to appeal hearing has been scheduled, so as to prevent any evidence of the appellants going on the court record, (3) convene sham directions hearings, so as to prevent any evidence of the appellants going on the court record."

10. And the application was said to be:

"Because a court of law does not exercise undue influence on its officials to cause specific documents to be destroyed unless it is corrupt. It does not fake orders that an appellant has been notified for a permission to appeal hearing when he has not, unless it is corrupt. It does not notify sham directions hearings, only when it seeks to commission evidence from corrupt lawyers propping up legal expenses, insurance scams on behalf of invisible multi-millionaire south west London property developers unless it is corrupt, it does not give orders for an application for leave to proceed for contempt of court against blind trust based companies run by invisible multi-millionaire south west London property developers have no prospect of success and such applications have every prospect of success if the appellant was actually advised of the permission to appeal hearing unless it is corrupt."

I have read that to give some kind of flavour of Mr Harvey's approach to litigation.

11. Be that as it may, the present proceedings were issued by a claim form in the High Court on 11 November 2004, just before that other application was made in the High Court. This was a claim against Mrs Jennifer Gaskin, secretary of Holly Lodge (Wimbledon) Management Ltd., and Mr Richard Shaw, the chairman of that company. The brief details of claim stated this:

"After the Holly Lodge (Wimbledon) Management Ltd., company meeting held on November 13, 2003 the defendants and/or via the company officers they were involved with (identities concealed) committed a calculated malicious libel and a calculated malicious falsehood on the claimant with intention to name blackening in order to 1) commission alibis from the accountant Mr Stephen Yates (Midgley Snelling) to cover up previous offences the same in connection with insurance fraud carried in March 2001. 2) Potentially deceive investigative detectives 3) deceive solicitors. The offending was via the creation of minutes of the said meeting published on November 20 2003 and via a staged tape recording of the same November 13 meeting. The minutes were not a record of the meeting. The minutes were hi-jacked as a vehicle to distract from deceits historic to the March 2001 insurance frauds and to distract from a subsequent claim (orchestrated between the defendants and lawyers Wedlake Bell, Goodell Hatfield and Beechcroft Wansborough) in order to commit grand larceny against a claimant. The larceny was committed via fraud on the Kingston-Upon-Thames County Court, the Queens Bench, the Wimbledon Metropolitan Police, DAS Legal Expenses Insurance, Sterling Insurance, Barclays Bank via £100,000 scam across the two said courts between June 2002 and August 2004. In the case of Barclays Bank it involved deceit on their bank and its lawyers (Spencer Ewin Mulvihill) between November 2002 and October 2004. The defendants who purported to be running a block of flats management company for the quiet enjoyment of the claimant (Mr D C Williams and Mr A M Harrison) were in fact self interested landlords/property developers who carried out such offending in the UK by fixing liability for their intentions for fraud as individuals on an off shelf Caribbean Limited Company with trading nominees and no mandatory findings".

And Mr Harvey said, "I expect to recover more than £15,000".

12. On 2 March 2005, Mr Harvey obtained an order that the time for the service of Particulars of Claim upon the first defendant was extended to 29 April 2005, and an order for substitutive service against the second defendant. On 6 April 2005, Master Foster made an order striking out the claim on the basis that it appeared that the claim form was served out of time and that no Particulars of Claim had been served. On 25 April 2005, Mr Harvey asked that time to file Particulars of Claim be extended because he was applying on notice for the order striking out the claim to be set aside. In due course the case came before Eady J on 17 June 2005, when he adjourned the matter to allow Mr Harvey to file evidence. Although Mr Harvey duly filed some evidence, to which Mrs Gaskin responded, he had not filed Particulars of Claim by the time the matter came before HHJ Rose on 15 July 2005. He has told me that since Master Foster had struck the claim out he had not seen much purpose in drafting Particulars of Claim. At all events, all HHJ Rose had was the language of the claim form which I have read.
13. In his judgment, HHJ Rose said that the claim form contained allegations of calculated malicious libel and calculated malicious falsehood against Mrs Gaskin and Mr Shaw, arising out of what they said at a meeting of the directors of HLM which took place on 13 November 2003. The judge read the minutes of the meeting. He also listened to a tape recording of the entire meeting, because it should be remembered that Mr Harvey alleged that the minutes were not an accurate record of what took place, and the judge commented that the minutes were extremely accurate. In the absence of Particulars of Claim, he gave Mr Harvey an opportunity to explain what he was complaining about, and this part of his judgment went in these terms. At paragraph 18 he identified the following:

"First, a note at the beginning that it was noted that Mr Harvey was making his own, possibly edited, records of the recording of the meeting, that being, it is suggested, an implication or innuendo that he was in breach of his duties as a director of the management company by acting or purporting to act in a way that was inconsistent with honesty and directness that would be expected of a director."

That is a reference to a note at the beginning of the minutes in these terms:

"In the interests of probity the majority of the abusive comments made by Mr Harvey have been omitted. A tape of the meeting is available if required, it was noted that JH was making his own possibly edited recording of the meeting."

14. The judge continued:

"Secondly, in paragraph 3 of the minutes where it is said that the fact that Mr Harvey complained of an extraordinary discrepancy in the accounts, the chairman replied that it had been accounted for and it was the explanation that Mr Harvey did not like, was both offensive and untrue. In Any Other Business it had been suggested that where there was a question of whether Mr Harvey wanted the resolution of the meeting to be that the company wrote to Mr Yates to give him the authority to release information that he believes confidential and Mr Harvey states he does not care, the actual words he used were, I have noted down, 'put it anywhere you want' was again untrue and defamatory in the sense that it made him look as if he basically was disinterested in the affairs of the company."

And this is a reference to a paragraph in the minutes which simply says:

"JH responded that there was an extraordinary discrepancy in the accounts. IS replied that it had been accounted for and it was the explanation that JH did not like. JH stated that the matter would be dealt with in any other business."

15. Finally the judge said in paragraph 19:

"Also it was suggested that he was interruptive and obstructive at the meeting in not allowing the chairman to finish his statement and that he was insulting and personally offensive during the course of the meeting. Also it is said that the general tenor of the meeting minutes was such as to make Mr Harvey out effectively to be an unpleasant person, to degrade him and make him look like an offensive person so as effectively, to use the words of the claim form, to blacken his name."

This is a reference to a part of the minutes under item 4 in which when Mr Shaw the chairman of the meeting was saying something, the minutes recorded:

"JH interrupts. He then does not allow RS to finish his statement."

16. And they say, moving on to his next point:

"RS requests and it was minuted that he did try to explain to JH the legal basis on which he feels that his question should not be dealt with in an AGM today, and he refused to let him finish and continues to be personally insulting."

17. The judge said at paragraph 20:

"Having listened to the minutes of the meeting itself, I have to say that I find the minutes extremely accurate. There may be something that in my view is probably no more than typographical error in one of the paragraphs, but they comprise, in my judgment, a full and accurate record of the matters that took place during the course of that meeting. There is no doubt that it records the matters which were said to be raised, and that statements were made that were said to have been made. Mr Harvey was, in my judgment, interruptive and peremptory in the course of the meeting. I am not certain to the degree and extent to which personal offence was a hallmark of his behaviour, I do not think it matters. I do not think the question of his not being personally offensive frankly makes a jot of difference in this particular case."

18. The judge next referred to the introduction by Mr Harvey of a private detective into the meeting, and he then continued:

"23. A question remains as to whether or not there is any libel or malicious falsehood. I do not see one, malicious or not. I confess that this claim form on its own is virtually incomprehensible. It certainly, in my judgment, discloses no cause of action at all, either in straight libel or in malicious falsehood. There is an allegation, and Mr Harvey makes no bones about it, that the libel itself is malicious, I do not see it. I do not see – to use the appropriate test which would be here in a case in which the matter could be heard by a jury - 'any allegation of malice against a defendant', and I am going to say in fact 'or either of them' here, 'any real prospect of success', my answer here is unhesitatingly no. I find there is no case whatsoever or issue raised whatsoever that is fit to go to a jury.

"24. In making my decision on the evidence that has been filed and given in support of the case (and I take into account what has been courteously and shortly said by Mr Harvey as well as the documents in his bundle). I make it quite clear here there is no prospect whatsoever of resulting in a successful case in libel or malicious falsehood and any jury finding so on this case would almost certainly instantly be reversed on appeal. This claim form will be struck out.

"25. In the event that I am wrong in that, I go on to consider the question of whether or not I would in any event have struck the matter out on the basis that it was an abuse of process or otherwise likely to have struck the just disposal of proceedings. I unhesitatingly hold that these proceedings are an abuse of process, it seems to me they are no more than an attempt to litigate for the fourth time matters which have been before the courts and disposed of on three separate occasions. They are proceedings which are designed and intended, in my judgment, to be used in a way quite different from the ordinary and proper use of proceedings of this nature."

19. That was the approach of the judge to the claim as it then stood. As I have said, when Mr Harvey sought permission to appeal, I said that I really must see something resembling Particulars of Claim from which I could understand what it was that he was complaining about, and as a result of that invitation he has filed a very long document which runs to 114 paragraphs, relating to many things in connection with his concerns about the conduct of Mrs Gaskin and Mr Shaw; but so far as the matters relating to the libel and malicious falsehood claim are concerned, he limits his complaints to the paragraphs which start at paragraph 39. In this context he refers to different matters, compared with the matters which he referred to the judge. He certainly refers to the same complaint about the note at the beginning of the claim, but he then refers to two quite different matters which he says were malicious.
20. I have to consider whether there is a real prospect of success in an appeal against HHJ Rose's direction for the claim to be struck out, both because it had no real prospect of success and because it represented an abuse of the process of the court, because it was travelling again over areas which had already been traversed before. The function of the Court of Appeal in these matters is a limited one, and it has been repeatedly said that the court will not interfere with the discretion of a judge unless the judge goes outside the wide ambit of the discretion that is given to him.
21. What Mr Harvey says is that since the hearing before HHJ Rose, he has been learning a number of things about Mr Shaw in particular and about the activities relating to the sale of his flat. He has told me today, and this is an allegation which I do not think that he has placed before this court before, that what the defendants were doing in relation to the libel claim was part of a malicious conspiracy to head him off from pursuing the relief that he was seeking in the High Court in relation to the claims which were coming up from the Kingston County Court, and in this respect he told me today that he thought that there was still a live libel claim, but what he was really concerned about was the way the defendants were using the interlocutory process in the libel claim to obtain a civil restraint order.
22. I am quite satisfied that it would be wholly wrong to allow these proceedings to be enlarged in the way that Mr Harvey seeks, to introduce quite new allegations for the first time in proceedings in the Court of Appeal, which relate to quite different matters concerned with Mr Shaw and the matters which surrounded the sale of Mr Harvey's flat. Mr Harvey is well used to making allegations of fraud; he also, perhaps as a result of the fact that he is not a lawyer, has great difficulty in identifying what are issues which are appropriate for a court to try and what are not, and one of the difficulties that any court has in dealing with Mr Harvey's allegations is the great breadth of the allegations. But I am satisfied that insofar as the claim in action HQO4X03626 is a claim in libel and malicious falsehood, there is no real prospect of this court interfering with the order HHJ Rose made and I would dismiss that part of the application for permission to appeal.
23. Mr Harvey then seeks permission to appeal against the civil restraint order. The defendants sought a civil restraint order arising out of the fact that Mr Harvey was bringing proceedings against them, again and again, essentially in relation to the initial dispute about the leak in the flat and what happened after that. I think I have not been given a transcript of what HHJ Rose said, but he made an order in these terms:

"1) Pursuant to CPR part 3.4 the claim form be struck out on the grounds that it discloses no reasonable grounds for bringing the claim and the claim is frivolous, vexatious and an abuse of process.

"2) That the court having found that the claimant has persistently issued claims or made applications which are totally without merit, the claimant be restrained from issuing claims or making applications in the High Court and any County Court concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made including (but not limited to) any matters relating to or touching upon or leading to:

"a) the alleged leak(s) of water into Flat 1, 1 Calonne Road, London SW19 ("the Property"), Flat 3, 1 Calonne Road, London SW19 between November 2000 and March 2001 inclusive, that any loss or damage whether direct or indirect alleged to have been suffered by you or any other person as a result of the said leak; and/or

"b) any aspect of any aspect of any insurance claim process or decisions of insurers following the leak – whether or not involving Holly Lodge (Wimbledon) Management Ltd.; and/or

"c) the affairs of Holly Lodge (Wimbledon) Management Ltd., and the involvement by third parties including Tadema Holdings Ltd., in the conduct of such affairs; and/or

"d) the attempted sale of beneficial or legal interest in the property and the distribution of the sale proceeds from the sale of the property.

"e) the actions of Mr Silvan Gaskin and Mrs Jennifer Gaskin in relation to any of the matters in paragraphs A to D above and any statements made or published by them in relation to such matters, without first obtaining the permission of HHJ Rose, or if unavailable the permission of Eady J."

24. Mr Harvey complains that this is a malicious attempt by the defendants to head him off bringing proceedings which he contends he is entitled to bring, that he has good evidence now to support them – he has obtained the evidence with the aid of a private detective – particularly in relation to matters relating to the sale of this property.
25. It appears to me that if that is right, then there is nothing in the order that HHJ Rose made which would stop him within the four corners of the order applying to HHJ Rose for permission to bring a claim, if appropriately formulated, in relation to the sale of his property, relying on the matters which he has sought to introduce into the present action. In my judgment, the fact that he may now have found material on which to found a claim is no reason for interfering with the civil restraint order. On the material I have seen, and I have read right through the voluminous documents which were placed before the court, it appears to me that the Gaskins, at any rate, are entitled to a rest from Mr Harvey's litigious activity. They have been put to huge expense as a result of it, claim after claim has been struck out, and he mentioned today that there may be two other claims in the County Court, of which at present I know nothing. He contends that part of the fraud was to conceal correspondence relating to the way that his insurance claim was first handled on the Gaskins' side of the fence. As I see it, it appears to me that there was no reason at all why, after taking appropriate legal advice, he could not have brought a claim against the Gaskins under the rule of Rylands v Fletcher, if he wanted to do that, given that they appear to have lost their insurers, and in my judgment it is now far too late to permit litigation on this kind of matter.
26. I know Mr Harvey appeals strongly about these matters. He has felt strongly about many matters over the last three or four years. The courts have had to consider different aspects of his complaints many times; I think I read in the papers that Master Leslie conducted one very long hearing into the matters. Again and again he was given more time to set out what he was complaining about logically and comprehensibly, and in my judgment there is no real prospect of Mr Harvey upsetting the civil restraint order and I would refuse permission to appeal.
27. Finally, Mr Harvey seeks to challenge the order for summary assessment of the defendants' costs. He was given notice of the hearing and he did not attend the hearing before HHJ Rose. The costs were summarily assessed at a figure of about £13,000, which appears to me, given the scale of this litigation, to be not an inappropriate figure. This court very rarely grants permission to appeal only against a costs order and I would not grant permission to appeal against this order. For those reasons, I would dismiss this application for permission to appeal.

Order: Application refused.