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
SOUTHEND DISTRICT REGISTRY
(HIS HONOUR JUDGE YELTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 February 2007

Lord Justice Chadwick:

1. This is a renewed application for permission to appeal from a possession order made on 21 June 2006 by HHJ Yelton sitting as a judge of the Queen's Bench Division in Southend District Registry. The history of these proceedings is set out in a judgment of Peter Gibson LJ delivered on 15 April 2003, [2003] EWCA Civ 622; and in a judgment of mine, when sitting with Smith LJ, delivered on 24 October 2005, [2005] EWCA Civ 1407. It is unnecessary to rehearse that history in this judgment: this judgment should be read with those earlier judgments.
2. I must, however, explain briefly how the present application comes before this court. The current proceedings are for the enforcement of a charging order over property known as 44 Glenbervie Drive, Leigh-on-Sea, Essex, the home of the applicant, Mrs Milica Markos. The charging order was made to secure costs which Mrs Markos had been ordered to pay in litigation brought by her against her former neighbour, Mr Alan Goodfellow. The charging order was made on 14 January 2004. On 12 October 2004 a Deputy Judge sitting at Southend County Court made an order for the sale of the property. He ordered that possession was given up so that the property could be sold. On 1 April 2005 HHJ Yelton refused permission to appeal from that order of 12 October 2004; but he varied that order so as to provide that possession be given up on 30 April 2005. On 17 May 2005 Mr Goodfellow obtained a warrant for possession from the County Court. An attempt to enforce that warrant was made on 14 June 2005; but was not successful. Mr Goodfellow's solicitors returned to the Southend County Court on the afternoon of 14 June 2005. The court reissued the order for possession of 1 April 2005, endorsed with a penal notice. On 8 July 2005 Mr Goodfellow applied for a committal order, on the basis that Mrs Markos was in contempt of court in refusing to deliver possession in accordance with the order, of 1 April. That application came before HHJ Yelton on 6 September 2005. He made a suspended committal order and he ordered that the possession proceedings be transferred to the High Court.
3. Mrs Markos appealed to this court. It was that appeal which came before Smith LJ and me on 24 October 2005. For the reasons set out in my judgment delivered on that day, with which Smith LJ agreed, we set aside the suspended committal order. But we refused to set aside the other parts of the order of 6 September 2005. At paragraphs 18-20 of my judgment I said this:

"18. I would not, however, set aside the other parts of the order of 6 September 2005. It seems to me that the judge took a very sensible course in transferring the possession order to the High Court. The High Court can decide how that order should be enforced if it is necessary to enforce it. The protection afforded to a person against whom an order for possession has been made in the High Court is greater than that of the County Court; not least because the High Court does not issue a writ of possession without a hearing on notice. In that respect the procedure in the High Court differs from the procedure for the issue of warrants for possession in the County Court.

"19. The position, therefore, is that the enforcement of this charging order will be in the hands of the High Court. That court can consider, with its expertise and powers at its command, how best to ensure that Mr Goodfellow is paid the order for costs to which he is undoubtedly entitled; without, if possible, adopting the draconian measures which will lead to Mrs Markos, an elderly lady, being evicted from her home or sent to prison. I put it that way because 44 Glenbervie Drive appears to be a property in which there is substantial equity. It should not be beyond the ingenuity of a Master or Judge of the High Court to realise the comparatively modest sum of £10,000 or thereabouts out of that equity without the need for possession proceedings.

"20. That will require a degree of co-operation on the part of Mrs Markos which seems not to have been forthcoming to date. It is very much in her interest that she appreciates that this debt will have to be paid sooner or later; and that her campaign of resistance, which is apparent from the various documents in the bundle before us, is not going to succeed in the long run."

In referring to the possibility that a Master or Judge of the High Court might devise a means of realising what was then the comparatively modest sum of £10,000 or thereabouts out of the substantial equity in the property at 44 Glenbervie Drive, I had in mind that, in the Chancery Division at least, consideration might be given to the appointment of a receiver with power to raise money on the security of an equity release mortgage. It is pertinent to have in mind that Mrs Markos is of an age at which some form of equity release -- which did not require periodic payments of interest but permitted accruing interest to be rolled up -- might well be available to her.

4. Mrs Markos was not content with the order made in this court on 24 October 2005; notwithstanding that we had set aside the suspended committal order. I must assume that she was not content with our refusal to set aside the judge's direction that the possession proceedings be transferred to the High Court. But that was a direction which, as I indicated, was made so as to give her more protection than she had in the County Court. She sought permission -- first from this court and then from the House of Lords -- to appeal to the House of Lords. That permission was refused in this court on 17 November 2005. Her petition for leave to appeal to the House of Lords was dismissed by the House on 14 March 2006.
5. On 27 October 2005 HHJ Yelton, sitting in the Southend County Court, made a further order. He ordered:

1. That in order to give effect to paragraph 2 of the order of 6 September 2005, the action be transferred to the High Court of Justice, Queen's Bench Division, Central Office.

2. That any interlocutory applications be referred in the first instance to himself, sitting as a High Court Judge under section 9 of the Supreme Court Act 1981 at Southend County Court.

The judge directed that because the order had been made by the court of its own motion, without considering representations from the parties, the parties should be at liberty to apply to have it set aside, varied or stayed. There is nothing in the papers before us to suggest that either party did seek to have that order of 27 October 2005 varied or set aside.

6. The position, then, since 27 October 2005 is that these have been High Court proceedings in the Queen's Bench Division. Nevertheless, by 9 June 2006 the papers were back in Southend. On that day HHJ Yelton made an order that the claimant's application to issue a writ of possession be listed for hearing before him, sitting as a deputy judge of the High Court under section 9 of the 1981 Act, at Southend County Court on 21 June 2006.
7. The application for the issue of writ of possession came before HHJ Yelton on 21 June 2006, the claimant, Mr Goodfellow, attended by counsel. Neither Mrs Markos nor her son Mr Nicholas Markos -- who had appeared on her behalf in the past -- were present at that hearing. We have, with the papers included in the appeal bundle, a solicitor's attendance note of the hearing on 21 June made by the claimant's solicitor, Miss Ruth Brown. It reads, so far as material:

"Hearing before His Honour Judge Yelton sitting as a Deputy High Court Judge. Mr Markos and Mrs Markos did not attend. The Judge began by commenting that the Markos[es] usually ring or write if they are not coming to Court and he wondered whether they [had] been served with notice of the application. We pointed out that service was down to the Court but the Judge was happy to go ahead in their absence.

"He commented that his reason for transferring enforcement to the High Court has been endorsed by the Court of Appeal the last time [the Markoses] appealed. The procedure is different in that he would have to apply for permission to obtain a possession order whereas in the County Court it is just done administratively on paper. This gives the Defendant an opportunity to be represented and make representations.

"[The] Counsel showed the Judge my chronology showing all the problems I have had dealing with the RCJ. The Judge did not comment on that but said he could see no grounds why the writ of possession should not be issued and therefore made an order that we had permission to issue the writ of possession forthwith and costs in any event."

The order which the judge made on that day, 21 June 2006, contains a recital that notice of the hearing had been given to the defendant who failed to attend or be represented. It is clear from that that the judge must have taken some steps to satisfy himself that the defendant had notice of the hearing.

8. Pursuant to that order the writ of possession was issued out of the Central Office of the High Court on 18 July 2006. In the meantime, on 12 July 2006, Mrs Markos had filed an appellant's notice seeking to appeal from the order of 21 June 2006. The grounds of her intended appeal are set out under seven heads:

"1. The order of HH Judge Yelton disregards the Court of Appeal Judgment of Lord Justice Chadwick and Lady Justice Smith dated 24 October 2005. [This] defendant has repeatedly suffered abuses contrary to Law in this and related proceedings.

"2. It is contrary to the Human Rights Act 1998 -- Articles 8 & 14 & Common Law. It is not proportionate to sell the defendants (sic) house because the loss to the defendant (and her son) would far outweigh the gain to the claimant. The claimant seems to be above the law, yet the defendant (and her son) do not seem to not have any rights under the law!

"3. There was no lower court hearing notification or documents and there were abuses of the process and serious irregularities. The discretion was not exercised on proper judicial principles. That was also the case with the charging order where the defendant was unable to attend court due to documented poor health, but the court ignored this.

"4. In the County Court judgment of 8 October 2003 HH Judge Yelton stated that the defendant indicated that he would not enforce any costs orders.

"5. Pro Bono Barrister has confirmed that there are serious irregularities concerning the [cost] order upon what this due action is based. The order is arbitrary and contrary to judicial principles.

"6. The defendant is unable to represent herself due to old age, poor health and circumstance. The lack of available legal assistance/representation is contrary to Basic Human Rights and the principles of a fair trial. Human Rights Act 1998 -- Article 6.

"7. The defendant totally succeeded in the related matter upon what this action is based. The order in section 5 would set a perverse precedent with a repugnant outcome contrary to law and civilisation [The order in section 5 is the order of 21 June 2006]."

The appellant's notice sought, in section 10(A), suspension of the order identified in section 5 because (it was said) that order was "contrary to the Human Rights Act 1998 -- Article 8. It is void of legal basis and is something similar to what the Nazis were perpetrating in 1941".

9. The application for permission to appeal came before me for consideration on the papers on 18 July 2006. I refused permission to appeal and I refused to suspend the order. The reasons noted on the order that I made on 18 July 2006 were these:

"If the [appellant] were not given notice of the hearing on 21 June 2006 (para 3 in her grounds of appeal) then the proper course is for her to apply to the High Court to set aside the order made in her absence. If she were given notice, but failed to attend, then she will need to explain to that court why she did not attend. There is no reason to come to the Court of Appeal unless and until she has exhausted the remedies given to her by the Civil Procedure Rules in relation to an order made in her absence.

"There is no substance in any of the other grounds set out in section 7 of the appellant's notice."

"There is no basis upon which this court should suspend the order of 21 June 2006. The applicant can apply to the High Court for that relief."

10. Mrs Markos did not choose to take the matter back to the High Court -- as my order of 18 July 2006 indicated would be an appropriate course if she alleged that the order of 21 June 2006 had been made at a hearing of which she had not had notice. She chose to renew her application for permission to appeal to an oral hearing in this court. In her letter to the Civil Appeals Office dated 26 July 2006 she wrote:

"With all due respect to Lord Justice Chadwick, kindly note Southend County Court have repeatedly treated me in a less favourable manner than other citizens in an analogous situation.

"To make any application to set aside at Southend will be treated with continued ridicule and simply subject me to further abuse contrary to Basic Human Rights."

11. It is not clear why Mrs Markos thinks that an application to set aside on the grounds that she was not given notice of an important hearing would be treated with ridicule in the Southend District Registry, where this matter now is. But, if she is concerned that her applications will not be considered on their merits, she can apply to the High Court to vary paragraph 2 of the order of 27 October 2005 made by HHJ Yelton to have the matter transferred to the Royal Courts of Justice. That course has always been open to her; she has not chosen to take it. Be that as it may, it is a renewed application for permission to appeal from the order of 21 June 2006 which is now before us.
12. Before addressing that renewed application I should complete this account of the recent procedural history. The oral hearing of the renewed application for permission to appeal was fixed for 1 September 2006. On 25 August 2006 Mrs Markos applied for an adjournment, on the grounds that a legal aid application was then pending. An adjournment was granted by Mummery LJ on 29 August 2006. It is perhaps surprising, therefore, to find that the application was not made until 30 August 2006; it was not pending on 25 August 2006. The matter was re-listed for hearing on 29 September 2006. On 21 September 2006 -- there being then no stay or suspension of a writ of possession -- that writ was executed by the sheriffs. Mrs Markos was evicted from 44 Glenbervie Drive. She immediately applied to a Queen's Bench Judge in this building, the Royal Courts of Justice.
13. That application came before Calvert-Smith J, sitting as Applications Judge, on the afternoon of 21 September 2006. He ordered -- without, of course, hearing what the claimant had to say -- that execution of the writ of possession be stayed pending determination of the renewed application for permission to appeal then listed for hearing on 29 September 2006 in this court. He gave the claimant permission to discharge his order on notice to Mrs Markos. Application was made on 22 September 2006 in the absence of Mrs Markos; but service of notice of that hearing upon her was dispensed with by the judge. Nevertheless, Calvert-Smith J declined in the absence of Mrs Markos to discharge the order which he had made on 21 September. He adjourned the claimant's application generally with liberty to restore.
14. At that stage, no doubt, both the judge and the claimant thought that the renewed application for permission to appeal would be heard by this court within a few days -- as I have said it was listed for hearing on 29 September 2006 -- and that the hearing of that application might well resolve matters. At the least that hearing could be expected to determine whether permission to appeal was going to be granted; or whether the permission would be refused, with the result that the order of 21 September 2006 was no longer appealable.
15. The hearing fixed for 29 September 2006 did not take place. On 26 September 2006 Mr Nicholas Markos wrote to the Civil Appeals Office on behalf of his mother to seek a further adjournment. In the course of his letter he said this:

"Legal aid has been applied for and I understand from Solicitors (Edwards Duthie) that under new rules, she meets the financial and merits criterion for this to be granted shortly. Legal Counsel has agreed to meet her next week to discuss the matter. I understand that this is the earliest that he can arrange."

On the basis of that application and that information, Pill LJ granted an adjournment. In granting the adjournment on 26 September 2006, he noted:

"I well understand the listing for this week, but having regard to the orders of Mummery LJ and Calvert-Smith J and to the fact that solicitors submitted an application for legal aid on Friday last I feel obliged to grant the application. [The] hearing should take place asap. Mr Brodrick [who is an officer in the Civil Appeals office] will monitor [the legal aid application] with the solicitors and ensure that they (Edwards Duthie) are aware of the Court's concern about the delay."

There is no material before us which suggests that an application for legal aid had, in fact, been made on 22 September 2006 -- the Friday before 26 September 2006 -- in relation to the renewed application for permission for the appeal. Nevertheless, at that stage, this court was proceeding on the basis that an application for public funding in respect of the hearing of the renewed application for permission to appeal from the order of 21 June 2006 had been made and was under consideration by the Legal Services Commission.

16. It was no doubt a surprise, therefore, when in the course of the monitoring process to which Pill LJ had referred the Civil Appeals Office received a letter, on 5 January 2007, from Edwards Duthie, the solicitors then thought to be acting for Mrs Markos in the matter. A surprise, first, because the solicitors wrote that they had not been instructed by Mr Markos or his mother; and second that, because of his contents of that letter. It explained that, having received the letter from the court addressed to Messrs Newman & Maxwell (who were the solicitors for the claimant), the writer, Mr Murphy, thought that it would be helpful and right for the court to set out his understanding of the current position concerning this case:

"I do so, having had an opportunity to speak to Mr Wyatt, [who was another fee earner in the firm and who was himself dealing with the matter. Mr Wyatt had] been able to update me as follows:

1. Instructions were last received from Mr Markos during the week of 11 December. These were concerned with formulating an application for legal aid to the Legal Services Commission. This was by way of an application for a Public Funding Certificate to set aside the Costs Order made by Southend County Court.

2. The legal aid application has not yet been sent to the Commission because Mr Wyatt still awaits instructions from Mr Markos.

3. Mr Wyatt has left a number of telephone messages on Mr Markos's voicemail asking him to make contact to give instructions on behalf of his mother. To date he has yet to do so."

17. To take stock of the position: the execution of the possession order had been stayed by Calvert-Smith J on 21 September in the belief that there was an imminent hearing before this court of the application for permission to appeal against the order of 21 June; adjournments of the application before this court had been granted on the basis that there was indeed an application for public funding in relation to that application then pending before the legal services commission; the letter of 5 January 2007 from the solicitors indicates that that has not been the case; it now appears, from that letter, that the only pending application for public funding -- or at least the only application pending in January 2007 -- was an application for funding to re-open the original costs order. It is necessary to bear in mind that permission to appeal from that costs order was refused as long ago as 15 April 2003 by Peter Gibson LJ, in the judgment [2003] EWCA Civ 622 to which I have referred. That that is indeed the position has been confirmed by enquiries made by the Deputy Master of the Civil Appeals Office with the solicitors, Edwards Duthie. There is, therefore, no longer any reason why an oral hearing of the renewed permission to appeal application from the 21 June 2006 order should not now take place.
18. Mr Nicholas Markos has attended this hearing before me; but has made it plain that he is not addressing the court on behalf of his mother. We invited him to put in front of us material which would suggest that the understanding of the position to which I have just referred is incorrect. He says, in effect, that there is now a pending application in relation to the oral hearing for permission to appeal against the order of 21 June 2006. I have seen and read the material which he has put in front of me. It does not support that contention. There is no reason to think that the position is not as the solicitors Edwards Duthie explained in the letter of 5 January. The current application for public funding is to re-open the original costs order.
19. So it is to the application for permission to appeal that I now turn. I have set out the seven grounds of appeal in the appellant's notice. Grounds 4, 5 and 7 can be addressed shortly; they all relate to the original costs order. As I have said, permission to appeal from that order was refused almost four years ago. That costs order -- however aggrieved Mrs Markos may feel about it -- must now be regarded as beyond challenge; at least in the context of the current proceedings brought to enforce the charging order which is based upon it.
20. As to ground 6 -- that the non-availability of legal assistance is contrary to basic human rights -- there is no general principle that the State is obliged to make available legal assistance and legal representation in civil matters. The matter has been considered in this court on a number of occasions, not least in Perotti v Collyer-Bristow (A Firm). The position is that, if the court feels that it cannot do justice without representation being made available to one or other of the parties, then it may decline to hear the matter. In those circumstances the court may invite counsel to act pro bono or may invite the attorney general to appoint an advocate to the court. But it is clear, in this case, that the opportunity to seek public funding has been made available by this court since the end of August 2006; when the application was first adjourned by Mummery LJ. It is not at all clear whether an application for public funding for this hearing has ever been sought by the applicant, for the reasons which I have indicated. Solicitors, at least, do not think that it has. If the complaint is that the applicant has not received public funding in relation to the proceedings before HHJ Yelton -- as distinct from the proceedings in this court -- there is no indication that, despite the judgment in this court on 24 October 2005, an application for public funding was made. If it were made, there is no indication what has become of it. It must be kept in mind that the charging order is based on a judgment not susceptible to challenge on appeal; and it must be kept in mind that, subject to the charging order, 44 Glenbervie Drive has a substantial equity value -- it is said to be worth some £250,000, subject to a small mortgage of £1,000 or so. The amount secured by the charging order has, of course, risen as a result of the various applications which have been made by Mrs Markos, and appears to stand somewhere in the order of £30,000 now. Nevertheless, there is no reason to think that Mrs Markos could not raise money to instruct lawyers if she were minded to do so. She could do so by raising money on the equity in her house.
21. I will take grounds 1 and 2 together. In my judgment of 24 October 2005 I indicated that it should not be beyond ingenuity to realise what was the then comparatively modest sum of £10,000 out of the equity in this property without the need for possession and sale. I remain of that view. But, as I indicated in my judgment, some cooperation from Mrs Markos is required. No cooperation has been forthcoming; no cooperation has been forthcoming because Mrs Markos does not accept the underlying judgment for costs which was made against her some four or five years ago. So long as she continues to assert that the costs order was wrongly made, it is reasonable to expect that she will do nothing towards paying that order. But if she does nothing towards paying that order, then she invites the law to take its course by giving to the claimant the assistance to which he is entitled in enforcing his charging order. It does not lie in Mrs Markos's mouth to complain that the court is proceeding to enforce a charging order by possession and sale when she does not take the steps that would plainly be open to her to pay the judgment debt by some other means. Nor does it lie in her mouth to complain that the court has not devised some other method of realising the sum necessary to pay off the judgment debt in circumstances where, first, she could do that herself and, secondly, it is quite plain from the course these proceedings have taken that she would resist tooth and nail any attempt by the court to realise money from her property to pay off the debt which she still continues to dispute.
22. The matter which gave me concern, when the application was before me on the papers, was the assertion in paragraph 3 of the grounds of appeal that there was no lower court hearing notification -- by which I took it to be said that Mrs Markos was alleging that she had not been given notice of the hearing of 21 June 2006. Given that one of the reasons for transferring the matter from the county court to the High Court was that a writ of possession should not be issued without the opportunity for Mrs Markos to be heard; that would be a serious lapse, if it had taken place. As I have indicated, the judge seemed to have satisfied himself that notice had been given; but it is not for us to judge that on the material before us.
23. If it is Mrs Markos's case that the order of 21 June 2006 was made without notice to her, then her remedy lies under CPR 39.3 subparagraph (3). She can go to the High Court and ask the High Court to set aside the order of 21 June 2006 on the grounds that she had not notice of the hearing. She seems to have had no difficulty in going to Calvert-Smith J in the High Court on 21 September 2006; and I can see no reason why she should have any difficulty in doing what was suggested in my note of 18 July 2006. But, whether she chooses to do that or not, it is not a matter which should be brought to this court unless and until she has exhausted the remedies given to her in the court below by the Civil Procedure Rules: for the very obvious reason that it will be the court officers at Southend who will have the best information as to whether or not she was given notice. The judge has plainly made some enquiries already. If this court were asked to deal with the matter, it would need to do so on the basis of a judgment or ruling by the judge explaining why he rejected her contention that she did not have notice in circumstances where, at the time when he made the order, he clearly thought she had had notice. It is not a matter for this court in those circumstances.
24. For those reasons I would dismiss the renewed application for permission to appeal.
25. I would add this. I take the view that this application is totally devoid of merit for the reasons that I have indicated. Taking that view, it is necessary to consider whether it is appropriate to make a civil restraint order in order to ensure that further applications without merit are not made. Such applications occupy the limited resources of this court. The view that I take is that the court can protect itself from further applications by the power recently provided by the Civil Procedure Rules, under which permission to appeal applications are dealt with on the papers and, if thought on the papers to be devoid of merit, can be made the subject of an order that there be no oral hearing. A notice is to be placed on the file that any further applications by Mrs Markos are to receive anxious consideration on the papers; and if thought to be devoid of merit may be refused without the opportunity of an oral hearing.
26. The High Court has already made the order of 27 October 2005 to which I have referred. Applications are to be made to HHJ Yelton in the first instance. If he takes the view that applications are being made which are devoid of merit, then the High Court can itself make an appropriate civil restraint order. It is unnecessary for this court to do so at this stage. What is plain is that this campaign by Mrs Markos and her son to ignore the effect of the costs order made against her some four or five years ago should come to an end. Reality should dawn. There is no need for her to be deprived of her house unless she continues to insist in refusing to accept that she is Mr Goodfellow's debtor for costs.
27. I direct that a transcript of the judgment given in this court be prepared at public expense: one copy is to be placed on the file in this court, one copy is to be sent to HHJ Yelton to be placed on the file in Southend, and one copy is to be sent to the claimants.

Lord Justice Lloyd:

28. I agree.


Order: Application refused.