England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
EXETER DISTRICT REGISTRY
MR JUSTICE ROYCE
4EX90048

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 September 2011

Lord Justice Rix :

The factual and litigation background

1. This is the judgment of the court. This litigation arises out of the tragic death of Jason Pope, the son of Mrs Genevra Pope, who claims in these proceedings as his personal representative. Jason Pope was employed as a geologist by the respondent, Energem Mining (IOM) Limited, then known as Branch Energy Ltd ("Energem"), under an employment contract dated 17 June 1998. Clause 5.5 of the contract required Energem to insure Jason Pope's life for sixty times his basic monthly salary (then US$4,000). Energem carried no such insurance, but its parent company, then known as Diamond Works Inc, now as Energem Resources Inc ("ERI"), did. It had a life insurance policy with Norwich Union. That policy had a cap of £400,000 on liability arising out of any one event.
2. On 8 November 1998 Jason Pope was working at a mine in Angola when it was attacked by rebels. 4 employees were killed and four other employees were abducted, among them Jason Pope. It was hoped that he had survived, and his salary continued to be paid by Energem for some 16 months down to the end of February 2000. As the judge at trial, Royce J, said and as we can well understand –

"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."

3. In January 1999 Norwich Union paid out £400,000 in respect of the four employees who had been killed at the time of the rebel attack. It maintained that that payment fulfilled its total obligations under the policy. However, negotiations continued with respect to the four abducted employees, including Jason Pope, who came in course of time to be presumed dead.
4. Norwich Union was pressed with the substantial argument that the death of the four abducted men did not arise out of the same event as the death of the other four. Norwich Union argued, however, that all eight deaths must be presumed to have arisen out of the same event. On 28 March 2003 the Norwich Union wrote to ERI's insurance brokers proposing an ex gratia settlement by payment of a further £400,000. The letter said that it was likely that the true details of the deaths would never be known. The payments would be split among the beneficiaries of the four employees on a pro rata basis (presumably in accordance with their salaries). The offer was made in full and final settlement of Norwich Union's liabilities under the policy with respect to the disappearance of the four men. An indemnity was required from the beneficiaries "to repay the policy proceeds if the lives assured reappear". So far as concerned Jason Pope, the proportion of the £400,000 amounted to £123,076.85. (It seems from a Norwich Union letter to ERI dated 15 September 2003 that at that time a sum of £150,000 would have met Energem's liability under clause 5.5 of $240,000; and that £487,5000 would have met the full entitlements of all four employees in question. Therefore the £400,000 represented a fairly full offer, on the basis that it was strongly arguable that the four employees abducted had died in a second event.)
5. That amount was paid into an account on or around 23 March 2004 (ie about a year after the offer was made to ERI). The account was in the name of ERI at Bank Hofmann, Zurich. The Bank's receipt said "In respect of Jason Pope (deceased)".
6. It appears that Norwich Union wished to pay the beneficiaries directly, (and that may have happened in the case of the other three). However, ERI required a waiver from the beneficiaries, including Mrs Pope, of all and any further claims against Energem (or the group). The other three beneficiaries were willing to give that waiver, but Mrs Pope was, understandably, not: she wished to obtain the benefit of Energem's full responsibility to insure Jason Pope's life for $240,000. In the event, therefore, the money was not paid to Mrs Pope but into ERI's account in Zurich as stated above. On 25 March 2004 Norwich Union emailed Mrs Pope to give her details of the account. The email stated:

"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."

7. Mrs Pope began these proceedings on 23 August 2004. Mrs Pope has been acting throughout as a litigant in person, with the aid of her son, Damien. Her claim was against Energem for "full payment of monies according to clause 5.5…" plus damages for pain and distress for "the intransigence of the company in settling the claim alongside the realisation that the working environment was not safely secured". The particulars of claim make it clear that the claim was made for breach of contract. ERI was not sued and no direct claim was made to the moneys in ERI's account, although the particulars referred to it. The claim was quantified at £152,058 plus interest, plus damages for pain and distress.
8. Energem's defence was indeed (at any rate at first) intransigent. It did not admit that Jason Pope was dead. It contended that the salary of $64,000 which had been paid after his disappearance had been paid in circumstances where there had been no obligation and it counterclaimed for its return. It did not admit Mrs Pope's locus standi, her standing to bring the claim.
9. In the course of the proceedings, the money in Zurich was transferred into the hands of Energem's solicitors around 29 March 2005, and then on 26 May 2006 it was paid into court. The amount paid into court totalled £135,590 plus additional interest of £791.27. Mrs Pope's application of 20 October 2005 may have generated this development: she there applied for payment into court of these moneys, describing them as "Norwich Union paid ex gratia monies, on compassionate grounds, into a trust account for the sole benefit of Mrs G Pope". However, Energem was not at that time admitting any liability in respect of this payment. The circumstances in which the Norwich Union moneys were dealt with by Energem were roundly criticised by Royce J in his addendum judgment on costs dated 28 April 2010 ("Here the Defendants were on the face of it treating the money as their own to do with as they wished. The money should have been held on trust for the Claimant…The Claimant has made loud complaint about the way this money was dealt with. She is on the face of it fully justified in doing so"). We agree that ERI may have broken the terms of the trust account in Zurich by removing the funds into the hands of Energem's solicitors and that subsequently Energem may have done the same when paying it into court at a time when it was denying liability and thus possibly treating those funds as its own money: however, the money was paid into court apparently pursuant to Mrs Pope's application, no loss has been established as having been suffered in the meantime pending the payment into court, and in the event the funds in court were paid out to Mrs Pope (in the circumstances described below) pursuant to various orders of the court in 2009, which was (in the absence of agreement or death) the appropriate condition under the trust for payment to be made. So the funds were kept safe pending trial.
10. The course of the proceedings down to that trial is usefully described by Royce J in his main judgment [2010] EWHC 96 (QB) dated 27 January 2010 as follows:

"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 [2004] 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.

11. It appears that Energem was now running into financial difficulties. On 11 November 2009 its solicitors successfully applied to remove themselves from the record. On 17 November 2009, the first day of trial, Energem's chief financial officer appeared and obtained an adjournment on terms, on the basis that funds would shortly become available and representation could be reinstated. The terms of the adjournment were not complied with, so that Energem's counterclaim (for the return of salary) was struck out.
12. It also appears that on 8 December 2009 there was a payment out of the remaining Norwich Union funds held in court, to Mrs Pope, in the sum of £115,890.60. The final sum paid out to Mrs Pope was less than the sum paid in (see at para 9 above) because in the meantime there had been three interim payments out of court in respect of costs orders made against Mrs Pope in favour of Energem. Those three payments out are listed in an email from the Courts Funds Office dated 29 January 2010, being £5000 on 27 March 2009, £30,000 on 1 April 2009, and £1,587.17 on 24 June 2009, a total of £36,587.17. Thus Mrs Pope was permitted to use the Norwich Union funds in order to meet liabilities owed to Energem under interim costs orders made against her. That shows that, in effect with the agreement of Energem, the moneys in court were being treated as already Mrs Pope's moneys even before trial.
13. The balance of the Norwich Union funds in court appears to have been paid out to Mrs Pope pursuant to an order of HHJ Griggs made on 23 October 2009, amended 6 November 2009, in response to a request made by Mrs Pope dated 15 October 2009. This request reflected, as indeed had the treatment of the funds in court as a source of payment of Mrs Pope's costs liabilities, Energem's concession in its reamended defence. Energem made no objection to that payment out. Mrs Pope appears to have received the balance of funds in court by means of a cheque dated 8 December 2009, paid into her account the following day.
14. The adjourned trial took place on 13 January 2010. Energem was not represented. It had lodged no evidence, nor any skeleton argument. (Energem was not represented either at the hearing of Mrs Pope's present applications.)
15. It followed that by the time of trial, with the admission of the clause 5.5 breach, and the strike-out of the counterclaim, and no opposition, it merely required Mrs Pope to prove her case to the extent that it was not already admitted. The judge observed:

"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."

16. The judge gave judgment in favour of Mrs Pope, in the sum of £273,711.60. This represented $240,000 which after exchange into sterling as of 1 March 2000, a date selected by him, amounted to £152,062. In addition he awarded interest on that sum over the years at a total rate of 80%, producing an additional £121,649.60. However, he also had to take into account the Norwich Union payment and the moneys paid into court. He was uncertain about these figures at the time of judgment and invited further submissions. In the meantime no order was drawn up.
17. On 2 February 2010 Mrs Pope filed written submissions in response to the judge's request. That brought to light the various figures mentioned above. Mrs Pope submitted that the proper net sum for which an order should be made in her favour was £157,821, ie the judgment sum of £273,711.60 less the £115,890.60 which she had received in December 2009. Thus Mrs Pope in her submissions proposed in effect that the judge should not take into account the £36,587.17 of which she had also had the benefit from the funds paid into court in order to meet the interim costs orders made in favour of Energem.
18. In the event the judge appears to have given no further reasoned judgment concerning the appropriate final sum for which an order was to be made (his addendum judgment dated 28 April 2010 is limited to costs), but proceeded to make his order dated 11 February 2010 giving Mrs Pope a final judgment sum of £115,890.60. That was the sum remaining in court after the payment out of Mrs Pope's interim costs liabilities: which Mrs Pope had already received on 8 December 2009. It was less than the sum requested by Mrs Pope of £157,821. The judge expressed his order as follows:

"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

19. It is not clear where the judge got the figure of £157,821.00 from, which he states as the "Norwich Union Payment", unless it was from Mrs Pope's submissions. As stated above, the original NU payment reflecting the proportion of the £400,000 applicable to the death of Jason Pope was £123,076.85. By the time the Norwich Union moneys were paid into court this sum had grown, with interest, to £135,590 plus additional interest of £791.27. Interest had continued to accrue and the moneys in court had ultimately funded the total payments out amounting to £152,477.77. The only basis of the sum of £157,821 is as a balancing item between the judgment sum of £273,711.60 and the amount paid out to Mrs Pope on 8 December 2009 of £115,890.60.
20. We think that the judge has erred in this respect. Energem's adjudged liability in total was £273,711.60, and Mrs Pope had received a total out of the Norwich Union funds paid into court of £152,477.77 (ie the £36,587.17 paid out to fund the interim costs orders and the £115,890.60 paid out on 8 December 2010). If the sums received by Mrs Pope are deducted from Energem's adjudged liability, the balance ought to be £121,233.83 (and not the £115,890.60 referred to in the judge's order).
21. This is one of the points made by Mrs Pope in her appeal proceedings, and on this point we agree with her. To this extent therefore we would grant her permission to appeal, and allow her appeal.
22. Mrs Pope also seeks to say that the net figure for which judgment should have been given should have been still higher, in the sum of £157,821 requested by her of the judge. This would be to ignore the sums totalling £36,587.17 which had already been paid out from the funds in court to enable her to meet the interim costs orders that had been made against her in favour of Energem. However, to ignore those sums would involve (a) going behind those costs orders which we cannot do without re-opening matters which have already been concluded on appeal (as to which see below); and (b) refusing to acknowledge that Mrs Pope had already received the benefit of those moneys to enable her to discharge those interim costs orders. Even though she did not receive those moneys into her own hands, they were released, nominally to her, to enable her to meet those liabilities in costs. In other words the moneys were treated as hers, for her to dispose of by meeting those orders. Thus she has received and used those additional funds of £36,587.17.
23. It seems to us therefore that, subject to wider considerations of re-opening matters which have already been concluded, which we will discuss below, there can be no permission to appeal in this respect.

The wider appeal applications

24. However, as we now explain, Mrs Pope's appeal proceedings before us go a great deal further.
25. We have before us what are essentially two applications brought by Mrs Pope. One is for permission to appeal from the judgment of Royce J, delivered on 27 January 2010 with its addendum judgment on costs delivered on 28 April 2010. That application has been adjourned by Lord Justice Maurice Kay, Vice President, to be heard orally on notice to the respondent, Energem, with appeal to follow if permission is granted. (That application we would grant to the limited extent, and with the limited result on appeal, already referred to.) The other is an application in effect to set aside the CPR 52.17 decision of Lord Justice Richards that he would not re-open his decision not to grant permission to appeal with respect to a number of interlocutory orders made in the course of these (and other related) proceedings. Richards LJ's decision not to grant permission to appeal was made in a full judgment given after inter partes argument, dated 14 August 2009 ([2009] EWCA Civ 1086). Mrs Pope's CPR 52.17 application to re-open Richards LJ's refusal of permission to appeal was dealt with on paper by Richards LJ on 19 November 2010.
26. Both of Mrs Pope's applications are made within a single document, her notice of appeal from the judgment of Royce J. Her notice of appeal is dated 29 or 30 June 2010. That is significantly out of time, but, in adjourning her applications, Maurice Kay LJ benevolently extended time.
27. Mrs Pope's notice of appeal makes her CPR 52.17 application under section 8 of the form. She there says:

"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'

because

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."

28. There can be no appeal against a decision of the court of appeal not to grant permission to appeal (section 54(4) of the Access to Justice Act 1999 and para 4.8 of PD52). Exceptionally, however, the procedure originally known as the Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528 procedure, may be invoked to reopen a final determination of any appeal, even where permission has been refused. The jurisdiction, which is truly exceptional, exists to allow for cases where the court requires a power in order to maintain its character as a court of justice. Thus it is needed if the court disposing of an appeal has acted contrary to what is needed in a court of justice, because for instance the court has been affected by bias, real or apparent. CPR 52.17 provides:

"(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

29. We have already determined this appeal and/or application to appeal on the question of a substantive judgment sum, so far as is open to us without re-opening matters already concluded against Mrs Pope on appeal. We consider that the correct sum for which Mrs Pope should have been given judgment on that basis is £121,233.83, as stated above.
30. Mrs Pope also has an application to appeal in respect of costs ordered by Royce J. In his separate costs judgment he awarded her indemnity costs. However, Mrs Pope complains that he should have gone further and given her the additional consequences available to a claimant who has made a CPR Part 36 offer which a defendant has been unable to better at judgment. The judge took those offers into account as a matter of his general discretion, in ordering indemnity costs. However, he considered that he was unable and/or unwilling to apply the costs consequences of CPR 36 in circumstances where the old (pre 6 April 2007) Part 36 (which applied at the time of Mrs Pope's offers) did not permit Part 36 offers before the commencement of proceedings, which was the stage at which Mrs Pope's offers were made, and because Mrs Pope's offers even so were not in proper form. The judge said:

"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."

31. Mrs Pope submits that the judge could have made an order in terms of Part 36.14 because old rule 36.1(2) stated: "Nothing in this Part prevents a party making an offer to settle in whatever way he chooses, but if that offer is not made in accordance with this Part, it will only have the consequences specified in this Part if the court so orders". Mrs Pope submits that the judge could have and therefore should have made an order giving the consequences available under Part 36.14. However, he declined in his discretion to do so, although under his general Part 44 discretion he awarded indemnity costs. We can see no reason for revisiting that Part 36 discretion, even assuming that the transitional provisions of Civil Procedure (Amendment No 3) Rules 2006 at rule 7(2) would maintain it. What we are concerned with here is whether interest should be awarded at an enhanced rate on the judgment award and/or on the costs awarded. As it was the judge granted interest (during an era of fluctuating but increasingly low interest rates) at the generous rate of just over 8% per year over the whole period of just under 10 years from 1 March 2000. That was shortly after Jason Pope's death was acknowledged (his salary was paid up to February 2000) and four years before the Norwich Union payment into Bank Hofmann. In the meantime, the Norwich Union payment was available in trust from that time in March 2004 and, from at any rate the time of the reamended defence at end July 2008, the clause 5.5 claim was admitted. Ultimately this court is not in as good a position to exercise this discretion as the trial judge, and we would not exercise it anew. Therefore there is no realistic prospect of success on appeal and permission to appeal as to this somewhat limited aspect of costs is not granted.

The re-opening of Mrs Pope's earlier appeals

32. We are here concerned with Richards LJ's full judgment dated 14 August 2009, refusing permission to appeal a number of aspects of this litigation, and his refusal (on paper) to re-open that judgment under CPR 52.17. That without more demonstrates the difficulties in Mrs Pope's path. There can be no appeal from either a refusal to grant permission to appeal or, a fortiori, from an application under CPR 52.17.
33. In these circumstances Mrs Pope has had resort to alleging bias against Richards LJ. However, it is difficult to understand what the basis of that allegation is. There is no allegation of bias in her original notice of appeal or attached (section 6) grounds of appeal: rather a complaint on the merits of the decision that had allowed Energem to take into account the Norwich Union payment to Mrs Pope as a credit against its liability to Mrs Pope. That decision goes back originally to a preliminary decision of HHJ Griggs made on 14 March 2007, when he rejected Mrs Pope's submission that, under the so-called "benevolence exception" (see Pirelli v. Gaca), she would be entitled to both the Norwich Union payment and payment by Energem of its liability without taking into account the insurance payment. Mrs Pope sought permission to appeal against that decision from this court, but permission was refused by Gage LJ and Arden LJ in November 2007 ([2008] EWCA Civ 994). That ought to have been the end of that. However, at trial before Royce J Mrs Pope sought to raise the benevolence exception point anew, but the judge declined to go into it. We have already cited the relevant para 18 of his main judgment at our para 10 above.
34. Richards LJ was therefore the third member of this court to consider Mrs Pope's reliance on the benevolence exception and Pirelli v. Gaca in the course of his judgment dated 14 August 2009. He did so because he was asked to give permission to appeal (among other matters) the costs orders made by HHJ Griggs against Mrs Pope and his order that those costs be paid to Energem out of the funds held in court. He went into the matter in some depth (at paras 26-33 of his judgment). He referred there to "very lengthy written submissions" from Mrs Pope, and concluded as follows:

"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."

35. Mrs Pope then sought under CPR 52.17 to re-open (inter alia) that decision by Richards LJ, as well as the judgment of this court of 8 November 2007 (Gage and Arden LJJ). He dealt with that application on paper, making lengthy remarks, which, for the sake of convenience, I incorporate in full in this judgment:

"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 [2009] 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 [2008] 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 ([2008] EWCA Civ 994) and 14 August 2009 ([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 [2002] EWCA Civ 90."

36. On the merits of these decisions, it is therefore impossible to reopen them, or to have yet a further attempt at obtaining an appeal which has been refused on more than one occasion. Mrs Pope's skeleton argument nevertheless attempts yet again to enter on the merits of the "benevolence exception" issue, describes Richards LJ's reasoning as "pure unadulterated, prejudicial gobbledegook", and submits that he failed, in considering the CPR 52.17 application, to look at all the circumstances, including matters which had occurred since HHJ Griggs' original decision, the decision of this court on 8 November 2007, or indeed his own decision of 14 August 2009. This section of Mrs Pope's skeleton argument is headed "Bias and Prejudice", in which entirely generalised assertions are made against Richards LJ, but which in our judgment amount to nothing more than a vigorously stated allegation that Richards LJ was wrong and therefore must have been prejudiced. In a further section of her skeleton headed "Actual or Perceived Bias", Mrs Pope renews her complaint and adds to it the allegation that there was further such bias, actual or perceived, involved in Richards LJ's decision not to recuse himself from dealing with the CPR 52.17 application to reopen his own judgment of 14 August 2009. Mrs Pope had written to Maurice Kay LJ expressing reservations about Richards LJ having any role in connection with her application. Maurice Kay LJ had written in response to say that "as there is no particularisation of the asserted 'bias and prejudice', he does not think it appropriate to move the application to reopen from Richards LJ. If on consideration he thinks it inappropriate for him to determine the application, it will be transferred to someone else. In this jurisdiction many applications are renewed to a judge who previously refused them. It is not at all uncommon for him/her to change his/her mind." Mrs Pope was clearly unsatisfied with this response, and continued to make entirely general allegations of bias and prejudice against Richards LJ in this section of her skeleton.
37. As is clear from his decision, cited in full above, Richards LJ gave careful consideration and good reasons for not recusing himself from dealing with the CPR 52.17 application. He also dealt fully with the merits of the application, as he had already done in his judgment of 14 August 2009. There is not the slightest evidence whatsoever of any bias or prejudice, actual or even apparent. In our judgment a litigant and would-be appellant cannot seek to choose her judge by making generalised and unsubstantiated allegations against her tribunal.
38. The question of the benevolence exception has now been considered by HHJ Griggs, by Gage LJ and Arden LJ, and by Richards LJ (twice). Royce J properly declined to revisit it. In these circumstances it is utterly superfluous for this court to revisit it, and indeed we lack jurisdiction to do so. Nevertheless, and if only to seek, out of a simple human regard for her distress, to put an anxious litigant in person and bereaved mother at greater ease in her mind, we state that we have separately considered the issue, and taken account of what is said about it in Pirelli v. Gaca, but are unable to agree that there would be any prospect whatsoever of success on any appeal on this issue (quite apart from the stringent and exceptional requirements of the CPR 52.17 jurisdiction). It is entirely plain from the circumstances in which Norwich Union agreed to make a further payment of £400,000 (to Mrs Pope and the other claimants), outlined above towards the beginning of this judgment, that, although the payment was expressed as being ex gratia, ie without any admission of liability, the money was forthcoming because ERI had insured Jason Pope's life, even if in an insufficient amount, and because there was a substantial argument available to ERI (and the beneficiaries of the insurance) to the effect that the four men whose death had been acknowledged immediately and the four others (including Jason) who had gone missing had all been killed as part of one event. This was in truth a compromise of an insurance claim, and as such compromises often are, it was expressed to be ex gratia. Nevertheless, it was an entirely businesslike transaction arising out of an insurance policy. That is totally unlike the kind of situation which falls within the benevolence exception: which is where some third party (not the employer's or tortfeasor's insurer) out of pure benevolence and charity assists an injured person. The matter is sufficiently stated in the headnote to the report of Pirelli v. Gaca at [2004] 1 WLR 2683, set out in the judgment of Gage LJ at [2008] EWCA Civ 994.
39. It follows that any aspect of Mrs Pope's notice of appeal which depends on the benevolence exception, ie her submission, which has failed throughout this litigation, that she is entitled to recover the Norwich Union payment and a full indemnity from Energem for breach of clause 5,5, or to make what Gage LJ described as a "double recovery" ("she is not entitled to what would be double recovery"), cannot succeed. There can be no permission to appeal in respect of it. The earlier judgments of this court cannot be reopened. Thus this most important plank, financially speaking, of Mrs Pope's submissions cannot bear the weight she places on it.
40. It also follows that it is impossible to attack the costs orders which have been made against Mrs Pope, or the consequences of those orders in as much as they have given rise to payment out from the funds in court, ie the Norwich Union payment, of the total of £36,587.17 which has been paid away to Energem to meet Mrs Pope's liability in costs to it.
41. Indeed, Mrs Pope accepted to us in the course of her oral submissions that she had consented to this money being paid out of the funds in court to meet her liabilities. She also told us that she had pressed for a stay of such payments pending appeal, but that the judge had ultimately refused her. In this connection she has complained that Energem's lawyers did not faithfully draft up into a draft order what she had understood as an earlier agreement or possibility that there would be a stay pending appeal. However, whatever might have been an earlier understanding or misunderstanding, Mrs Pope accepted that ultimately the judge did not order a stay. However, whether he had decided to order one or not has been water under the bridge for a number of years by now, during which Mrs Pope's attempts to appeal and/or to revisit and reopen the question of her liability under such orders have all failed, first before Gage LJ and Arden LJ and then twice before Richards LJ. Therefore, even if there had been a stay pending appeal, that stay would have long since now expired.

Energem and ERI

42. The misfortune is that Energem has run out of funds, as was already clear at the time of trial before Royce J. Therefore the possibility or even probability is that, save for the funds which Mrs Pope has secured for herself out of the Norwich Union payment, she will be unable to recover anything further even under the judgments which she obtained from Royce J, let alone the further amount of some £5,000 which she has obtained from this appeal, to the limited extent that it has been permitted and has succeeded. Indeed, the civil appeals office has sought to make contact with Energem for the purposes of these applications and the appeal, so that it could be represented if it wished to be, but all attempts have failed, both at its registered address, and through the liquidators of its parent ERI; and so Energem has been unrepresented.
43. In this connection, a question arose as to whether Mrs Pope might wish to join ERI to her appeal. ERI is now in liquidation in British Columbia, Canada. Deloitte &Touche Inc has been appointed a trustee in bankruptcy by the Supreme Court of British Columbia on 26 April 2010. The civil appeals office wrote to the trustee, to enquire whether, in the absence of Energem, Deloitte had any interest in Mrs Pope's applications in possible support of Energem's position, but it did not: see Deloitte's letter to the civil appeals office dated 19 April 2011. That letter also pointed out that should any party wish to continue or commence an action against ERI, a bankrupt entity, they are required to obtain the leave of the Supreme Court of British Columbia.
44. In these circumstances Mrs Pope, who was consulted as to her wishes, said that she did not want to join ERI to her applications. Nevertheless, her submissions raise the question, as she has done previously in this litigation, as to whether the court would itself wish to join ERI for some purpose. Certainly we would not wish to do so, even if we had any jurisdiction to do so. We also consider that Mrs Pope was prudent in not wishing to do so herself.
45. There remains nothing of these applications, save to the limited extent that we have raised the outstanding judgment sum awarded by Royce J to £121,233.83. That sum, as well as Energem's costs liabilities, remain due to Mrs Pope, and are, we think, so far unpaid. That, in the light of Mrs Pope's enormous and valiant efforts to press to judgment the obligations of her son's former employers, must understandably be a matter of great distress to her. We regret that ourselves, but the courts cannot guarantee the solvency of litigants. Given Energem's subsequent apparent impecuniosity, it would seem with hindsight that it is a pity that the costs orders made against Mrs Pope, which had the effect of reducing the value of the security she held in the funds in court, were not postponed for payment until the end of the litigation, when there would have been a set-off between costs payable to and by Mrs Pope. However, these are merely the reflections of hindsight.

Conclusion

46. In sum, Mrs Pope submits that various courts have erred procedurally and in substance, that the interests of justice require what she sees as significant errors to be corrected at however late a stage, and that this can be done within the CPR 52.17 jurisdiction. However, save to the extent to which her appeal has succeeded, we refuse her applications. The balance of her application to appeal must be refused because there is no prospect of success on appeal. As for her application to re-open previous failed attempts to access an appeal, the various points to which she attaches importance under CPR 52.17 have all been considered by this court in the past, at least once and some of them three times, and have been rejected. There is no jurisdiction to revisit them yet again. There is in any event no necessity to do so in order to avoid real injustice, nor are circumstances exceptional and such as to make it appropriate to reopen any of the various matters of which Mrs Pope makes complaint. There has been no bias or prejudice, actual or apparent, on the part of Richards LJ or on the part of any other judge who has, over the course of this litigation, considered Mrs Pope's clear submissions.
47. However, for the reasons given above we will amend paragraph 1 of Royce J's order dated 11 February 2010 so that it will read:

"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.