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
(MR JUSTICE BLACKBURN)

		Royal Courts of Justice Strand London, WC2
		2nd May 2006

1. LORD JUSTICE CHADWICK: This is an adjourned application for permission to appeal from an order made on 12 August 2005 by Blackburn J in proceedings brought by the applicant, Miss Seven, against Mr Christopher Gossage and nine other defendants. The circumstances in which the application for permission was made are set out in a judgment of mine delivered on 23 February 2006. It is unnecessary for me to rehearse those matters again in this judgment. This judgment should be read with that judgment.
2. On 23 February 2006, for the reasons set out in my judgment, I directed that the application for permission be adjourned to come on with notice to the respondents and with the appeal to follow if permission were granted. I also gave leave to the applicant to file witness statements to be made by two potential witnesses, Miss Anita Letang and Mr Ronnie Nicolas, setting out their account of what had taken place in the Royal Courts of Justice on the afternoon of 12 August 2005, and which had led to the application which was made to Blackburn J late on that afternoon.
3. The applicant has taken advantage of that permission. Witness statements have been filed. What they show is, in substance, what I was told at the last hearing: namely, that Miss Letang and Mr Nicholas had sought to file an application notice in the general office of the Chancery Division, to pay the fee and have the notice stamped. But the office took the view that what Miss Letang and Mr Nicholas were really seeking was a hearing that day before a judge. In those circumstances the office thought that the right course was to arrange a hearing before a judge rather than formally to file the application.
4. The effect of the view taken by the office was that no application was filed that day. The account which Mr Nicholas and Miss Letang give is, if I may say so, inherently credible: in the sense that they describe what could be expected to happen if the office thought that what they really wanted was a hearing before a judge. For whatever reason it seems that the real need to file the application was not appreciated either by Miss Letang and Mr Nicholas or by the office. In my judgment further enquiries as to exactly what happened that afternoon would be unlikely to take the matter further.
5. When the matter came before Blackburn J he thought that he was faced with an application – made without notice – for an extension of time to do what Pumfrey J had directed should be done by his order of 12 May 2005. Pumfrey J had directed that unless the claimant made an application for directions – including a release or continuance of the stay which he had imposed on the proceedings – by 4.00pm on 12 August 2005, the claimant's claim should be dismissed with costs without further order of the court.
6. The application notice – which, as Miss Letang and Mr Nicholas have said, they sought to file on the afternoon of 12 August 2005 – was for a continuance of the stay of the proceedings. It was not an application for an extension of time in which to file an application in conformity with Pumprhey's J order. It was, simply, an application for a continuance of the stay. It may well be said that an application simply to continue the stay was not an application which complied with Pumfrey J's order. The purpose of that order was to require the applicant, Miss Seven, to make an application for directions calculated to enable the various strikeout applications to be heard. It might well be that an application for directions for that purpose would need to include a release or continuance of the stay; but it is difficult to think that Pumfrey J would have expected the application to be confined to the continuance of the stay without any proposal for the directions which would enable the strikeout applications to be heard.
7. Be that as it may, that was not an argument which took place in front of Blackburn J. As I have said, he took the view that the application before him was an application for more time in order to do what Pumfrey J had directed should be done. He dismissed that application, but his order when drawn up on 13 October 2005 did not record that. The order provides that, upon the without notice application of the claimant and upon hearing the cousin of the claimant, it is ordered that the claim be dismissed.
8. The only basis, as it seems to me, on which Blackburn J could have ordered that the claim in the proceedings be dismissed was that he was satisfied that Miss Seven had failed to do what it was that Pumfrey J had ordered that she should do. Strictly, of course, if he had been satisfied of that, it was unnecessary for him to order that the claim be dismissed, because that would be the effect under the order which Pumfrey J had made on 12 May 2005. But in order to be satisfied that the applicant, Miss Seven, had failed to do that which Pumfrey J had directed she should do, it would have been necessary for the judge to address two questions. First, whether the application notice which Miss Letang and Mr Nicholas had sought to file on 12 August was notice of an application which would have complied with Pumfrey J's order. Secondly, why it was that they had not been able to file it. Those questions were not addressed before Blackburn J on 12 August 2005. No doubt the questions were not addressed because the point was never explained to him in those terms on the afternoon of 12 August.
9. Be that as it may, it seems to me that it would disproportionate to allow the order of 12 August 2005 dismissing the claim in the proceedings to stand. I am satisfied that the right course is to set aside Blackburn J's order of 12 August 2005. That, of course, leaves for further consideration what is now the position in the proceedings: having regard, first, to the order which Pumfrey J made on 12 May 2005; second to the fact that no application was in fact filed under CPR 23, as it should have been within the time limited by Pumfrey J's order; and, third, the circumstances in which no application was filed – including amongst those circumstances (i) the form of the application and (ii) the view taken by the office to which I have already referred.
10. I have considered whether those are questions which should be addressed by this court on this application. I am satisfied that that would not be the right course to take. The right course, as it seems to me, is to direct that the claim in the proceedings shall stand struck out by virtue of the order made by Pumfrey J on 12 May 2005 unless, within 21 days of today, Miss Seven makes an application on notice, under CPR 23, to show cause why the proceedings should not be struck out for failure to comply with the order. That application is to be made in the Chancery Division. It is to be made by the filing of a notice within the period of 21 days to which I have referred; and it is to be supported by the witness statements of Miss Letang and Mr Nicholas to which I have referred.
11. I emphasise that the application is to be made by the filing of an application notice under CPR 23.3 and that, in accordance with the rules, copies of that application notice must be served on the respondent. If the application is made in that way within the 21-day period, then I would urge (but without directing) the Chancery Division to list it for hearing expeditiously. These proceedings have been in a state of limbo for long enough. But I should make it clear to Miss Seven that if the application is not made by filing an application notice within the 21 days to which I have referred, then the effect will be that her proceedings will be struck out under Pumfrey J's order. They will be struck out under that order because – on a strict analysis of the position and, for whatever reason – she has not complied with that order.
12. There is a further application before us. That is an application, under reference 2301(B), for injunctions in general terms restraining the respondents from sending people to stalk Miss Seven, monitor her phone calls and trespass by way of surveillance on her home; second, a freezing injunction on all personal and company assets; and third, complete termination of all illegal screenings of her production of all networks internationally. The application is made on the basis that Miss Seven is suffering constant abuse which has been going on now for nearly three years; besides the tapping and monitoring/stalking being illegal, "it is degrading and an infringement of my privacy, safety and security" and as she says, she "is sick to death of it".
13. That is an application which, if supported by evidence, she is entitled to have heard. The position at the moment is that there is no evidence filed in support of the application, although it may be that evidence of the matters of which she complains can be found elsewhere. Second, because there is no evidence filed in support of the application, there has been no opportunity for the respondents to address that evidence. Third, the application is an application which should be made in the High Court and not in this court, unless ancillary to some matter with which this court is dealing.
14. I would propose that we remit that application 2301(B), dated 28 February 2006, to the Chancery Division. But I would not link that application to show cause which I have indicated should be made unless (at some subsequent stage in the proceedings) a judge of the Chancery Division decides that that would be a convenient course.
15. SIR PETER GIBSON: I agree.

Order: Permission to appeal granted. Appeal answered. Order of 12 August set aside. Proceedings dismissed unless application to show cause is made within 21 days. Application for injunction remitted to the Chancery Division.