ON APPEAL FROM THE QUEEN'S BENCH DIVISION
EXETER DISTRICT REGISTRY
MR JUSTICE ROYCE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
| GENEVRA POPE
(suing as personal representative of Jason Pope)
|- and -
|Energem Mining (IOM) Ltd
Formerly known as Branch Energy Ltd
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
The Respondent did not attend and was not represented
Hearing date : 13 May 2011
Crown Copyright ©
Lord Justice Rix :
The factual and litigation background
"The claimant sets out in detail in her witness statement the tortuous history. It is a desperate story of agonising anguish and hopes being raised and dashed."
"This account was opened by Diamond Works for the sole and express purpose of holding any ex gratia sum Norwich Union paid for your benefit. Money paid into the trust account will accrue interest…
All the money we paid into this account is paid on the condition that it would remain in the account until the earlier of:
"1. Court Order instructing when and to whom the money is to be paid is made.
2. Formal written agreement between yourself and Diamond Works Limited as to when and whom the money should be paid to.
3. On your unfortunate death."
"17. There were numerous hearings before HHJ Griggs. It is unnecessary to refer to them in detail. He was concerned in the exercise of his case management powers to ensure that the issues to be determined at trial were proper ones and represented proper use of the court's time and resources.
18. In his ruling of 14 March 2007 he considered whether or not the defendants were entitled to claim credit for the Norwich Union payment as against their contractual liability. Having considered in particular the principles in Gaca v Pirelli PLC  1 WLR 2683 he concluded that they were. He set out his reasoning carefully. The claimant sought to appeal that ruling without success to the Court of Appeal. She asked me to revisit the ruling at the start of this trial. For the reasons I then set out I concluded there was no proper basis on which I could do so.
19. The claimant had also sought to broaden her claim to include a claim on behalf of the estate of Jason Pope based on the negligence of [Energem] in failing to provide a safe system of work. HHJ Griggs decided that the amount to be recovered was not likely to be substantial and it would not be proportionate to allow that to be an issue at trial. Permission to appeal that ruling was not granted. Again the claimant sought to persuade me to revisit that ruling. Again I concluded for the reasons I then set out that there was no proper basis on which I could do so…
20. On 30 July 2008 the defendants served a Re Amended Defence and Counterclaim in which the claimant's claim for breach of clause 5.5 was admitted…The defendants claimed by way of set off the Norwich Union payment."
Thus from the time of that reamended defence, Energem was admitting liability for breach of clause 5.5, but was relying on the Norwich Union funds as a payment (or at any rate partial payment) in respect of that liability.
"25. The case was intelligently and courteously presented by the claimant in person. She was assisted by her son who I allowed to address me as her McKenzie friend. She gave evidence in accordance with her witness statement. She accepted after my initial rulings that some of the matters in the statement went beyond the issues that fell for me to determine. I was much impressed by her. She was straight forward throughout. There was no reason not to accept her evidence."
"1. from the sum of £273,711.60 there is to be a deduction of £157,821.00 (the Norwich Union Payment) leaving a balance of £115,890.60 being the net sum the claimant is entitled to."
It appears that the judge may have mistakenly transposed the two figures which had appeared in Mrs Pope's submissions: for £115,890.60 was what she had already received, and £157,821 was not the Norwich Union payment, but the balancing figure which she submitted was still owed to her in the light of the judge's judgment.
A limited success on appeal
The wider appeal applications
"I apply for an order that appeal Ref Nos B4/2008/1642, A2/2008/2404A, B4/2009/0552, B4/2009/0553 are re-opened in the circumstances that the claimant's application for permission to appeal is allowed and consequent to the correct determination of the ownership of 'Norwich Union trust money'
It is necessary to re-open these 'final appeals' [for all the reasons given under r 52.17(1)] to allow the facts, evidence and trust law (which has not previously been taken into account) to be considered – impartially – in order properly and justly determine the true ownership of the 'Norwich Union payment' (and who should 'benefit' from it) and redress the consequential unjust and wrong decisions which have fatally flowed from the original 14th March 2007 Ruling, CMCs and previous orders.
The current judgment in respect of the NU payment unjustly affects the claimant as well as the foreign claimants in the allied case 7EX90093. Additionally, it leaves the door open for any future and unscrupulous employer to utilize the decision for their own unlawful benefit. It goes against, and is the antipathy of, all public policies in existence.
Not to re-open those appeals is tantamount to the court ignoring and condoning the guilty defendant's (and his legal representatives) unlawful and deceitful behaviour."
"(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal;
(c) there is no alternative effective remedy.
(2) …"appeal" includes an application for permission to appeal…
(4) Permission is needed to make an application under this rule…
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final."
The appeal from Royce J
"The Claimant argued that I should order that the consequences of Part 36.14 should apply in this case. I am unpersuaded that that would be right. Making every allowance for the fact that the Claimant has been acting on her own behalf, there could have been a Part 36 offer in proper form and there was not. By April 2005 she must have been alerted to Part 36 offers because the Defendant made one then."
The re-opening of Mrs Pope's earlier appeals
"31. I need in this connection to refer again to the judgments of the Court of Appeal on the permission application in November 2007, where the status of the insurance monies then held in escrow and not yet paid into court was considered in the context of the rejection of Mrs Pope's contention that they could not count towards the damages or payments to which she was entitled under the contractual claim brought by her as Jason's personal representative against [Energem] as his employer. The court plainly considered that, whatever the precise status of the monies, they could effectively be set off against sums payable by [Energem].
32. Having considered the Court of Appeal's judgment on that occasion and the various submissions now made, I have concluded that the monies in court are properly to be treated as belonging to Mrs Pope as the personal representative and indeed beneficiary of Jason's estate and that she can withdraw them from court at any time without legal inhibition. While they remain in court it is open to a judge to order, where appropriate, that a costs order against Mrs Pope, or a payment on account of such order, be paid out of those monies. The order so made by HHJ Griggs on 24 July 2008 was made in the proper exercise of his discretion and I can see no realistic prospect of successful appeal against this part of Order A."
"1. Mrs Pope has applied under CPR 52.17 for permission to reopen my decision of 14 August 2009 refusing applications for permission to appeal to the Court of Appeal against various orders made in proceedings in which she was involved (see  EWCA Civ 1086). The application for permission to reopen is contained within an appellant's notice (A2/2010/1569) seeking permission to appeal against the order of Royce J dated 11 February 2010 to the effect that certain insurance monies (the Norwich Union payment) are to be deducted from the sum of £273,711.60 found by the judge to be due and owing to Mrs Pope, as personal representative of her son Jason, under clause 5.5 of Jason's contract of employment with [Energem] (the Defendant). A direction has been made that no separate notice needs to be filed by Mrs Pope in respect of her application under CPR 52.17.
2. For reasons explained below, I think it possible that Mrs Pope's application is to be understood as relating in addition to an earlier decision of this court (Gage LJ and Arden LJ) on 8 November 2007 refusing permission to appeal against previous orders (see  EWCA Civ 994). I have treated it as such.
3. It is plainly appropriate for the application to be dealt with by me, both as regards my own decision and as regards the earlier decision of this court. A single LJ needs to consider the application as a whole. I have relatively recent and substantial knowledge of the case. Moreover Gage LJ, who gave the main judgment in the earlier decision, has retired. I can see no good reason why I should not deal with the matter.
4. I have considered the matters raised in Section 8, Part C, of the appellant's notice and in subsection 3 ("Second Appeal: Re-Opening Previous Permissions to Appeal") of the accompanying grounds for appeal and arguments in support. I have also considered more generally whether the judgment of Royce J or the circumstances surrounding it might justify a re-opening of the previous refusals of permission to appeal.
5. Mrs Pope refers at para b) of subsection 3 to a ruling dated 14 March 2007 to the effect, so far as material, that the insurance monies held by the Defendant in escrow (subsequently paid into court) could be set off against any sums for which the Defendant was liable under clause 5.5 of the contract of employment. An application for permission to appeal against that ruling was one of the matters considered and refused by this court on 8 November 2007 and any attempt to re-ventilate a challenge to the ruling would necessarily involve reopening that decision. No basis has been shown, however, for reopening the decision. Mrs Pope refers at para a) to Royce J's strong criticism, at para 46 of his judgment, of the Defendant's conduct in paying the insurance monies into court in purported satisfaction of her claim when those monies did not belong to the Defendant and should have been held in trust for her. That criticism, however, is entirely consistent with, rather than tending to undermine, the conclusion in the decision of 8 November 2007 that the insurance monies could be set off against the sums due under clause 5.5 of the contract of employment. Royce J, moreover, expressly and properly declined to revisit that decision: see para 18 of his judgment.
6. My own decision of 14 August 2009 considered, among other things, the legal status of the insurance monies after they had been paid into court and in particular whether they were available as a fund from which the Defendant could seek payment of costs orders made against Mrs Pope: see paras 28-33 of my judgment. For reasons there given, and which referred back in part to the decision of 8 November 2007, I concluded that the insurance monies were so available and that an appeal against costs orders made on that basis had no realistic prospect of success. If and in so far as Mrs Pope was seeking, by the applications I was considering at that time, to challenge earlier orders, I gave additional reasons at para 27 why the attempt was hopeless. Again, there is nothing in Royce J's judgment or the circumstances surrounding it to undermine the conclusions I expressed on thiose matters. On the contrary, what he says at para 46 is entirely in line with my conclusions.
7. Mrs Pope refers more generally to the conduct of the Defendant and its legal representatives, but nothing said in Royce J's judgment about their conduct casts a materially different light on the various matters considered in my decision of 14 August 2009 or the earlier decision of 8 November 2007.
8. In short, I am satisfied that the stringent conditions for re-opening the earlier refusals of permission to appeal are not met. In particular, nothing put forward by Mrs Pope is remotely capable of persuading the court that it is necessary to reopen the decisions in order to avoid real injustice, or that the circumstances are exceptional and make it appropriate to reopen them.
9. Permission to reopen the decisions of 8 November 2007 ( EWCA Civ 994) and 14 August 2009 ( EWCA Civ 1086) is therefore refused.
Note: Where the application is refused the decision of the judge is final and the application cannot be renewed to an oral hearing – see CPR 52.17(7), Taylor v. Lawrence  EWCA Civ 90."
Energem and ERI
"1. from the sum of £273,711.60 there is to be a deduction of £152,477.77 (the Norwich Union payment) leaving a balance of £121,233.83 being the net sum the claimant is entitled to."
To that extent Mrs Pope's appeal succeeds. Otherwise, albeit with admiration for what she has achieved as a resolute litigant in person, and sympathy for what she has failed to achieve, we refuse her applications.