England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE MURFITT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th July 2011

Lord Justice Lloyd:

1. These proceedings, brought by Mr Webb and now by Mr McDonald as well, are a sequel to a set of proceedings brought originally by Mrs Milicia Markos against a Mr Goodfellow, which were then followed by some proceedings brought by Mr Goodfellow against Mrs Markos. The history started as long ago as 1999 with a boundary dispute in the Southend County Court brought by Mrs Markos against Mr Goodfellow. That came to trial and a judgment was given, not entirely to Mrs Markos's satisfaction, in early 2001 in the county court. She appealed to the High Court. Gray J heard her appeal, allowed it in part but not in full, and made an order for costs against her. Mrs Markos then applied for permission to appeal against that order, which was refused by Peter Gibson LJ in 2003. The costs payable by Mrs Markos to Mr Goodfellow were assessed in the course of 2003 at just under £9,000. There was no prospect that she would pay them voluntarily, and in January 2004 Mr Goodfellow obtained a charging order absolute to secure the payment of those costs. An appeal against that order was dismissed, and an appeal against the assessment of the costs was also dismissed.
2. On 12 October 2004 an order for sale was made to give effect to the charging order, which by then secured just over £10,000. That order included an order for possession endorsed with a penal notice. Permission to appeal against that order, which was made by a district judge, was refused by HHJ Yelton in April 2005, he substituting a date of 30 April 2005 for the possession to be given. Quite a lot happened after that, about which I do not need to go into detail. There were two successful attempts to enforce the possession order. One of them was thwarted after the event by an order by a Queen's Bench judge, wh9o was not made aware of the full circumstances, and the other was thwarted because Mrs Markos' son, Mr Nicholas Markos, broke into the property and they moved back into it to live there, as they still do.
3. On 3 February 2010 HHJ Yelton, in the proceedings to enforce the charging order which by then had been transferred to the High Court, made an order varying the directions in the 12 October 2004 order to allow a sale for not less than a rather smaller sum than had originally been specified, on the basis that the property could be sold either with or without continued occupation by Mrs Markos and her son. The judge dealt with a number of outstanding questions of costs, ordered a sum just approaching £26,000 to be paid to Mr Goodfellow and added those to the charging order.
4. Permission to appeal against that order of 3 February 2010 was refused on paper, but Mrs Markos exercised her right to renew the application orally and that application came before me on 6 May 2010. Mr Markos attended and addressed the court. I refused permission in a judgment a transcript of which is available. In consequence of that, the property was offered for sale at auction on 26 May 2010 and was bought by Mr Webb and Mr McDonald. From the office copy entries it appears that they completed the purchase on 24 June 2010, paying £170,000 for the property. On 7 July they became the registered proprietors. On 26 August, having become the registered proprietors, Mr Webb, initially on his own, started the new proceedings (OSS/01372) in the Southend County Court against Mrs Markos and Mr Nicholas Markos, seeking an order for possession.
5. That claim came before HHJ Lochrane in the county court on 13 October 2010, Mr Webb being represented by counsel and Mr Markos attending in person; he made an order for possession. There was an application for permission to appeal against that order. In November 2010 MacDuff J ordered that application to be listed for an oral hearing, and he stayed the possession order pending the hearing of that application. That application came before Beatson J on 6 May 2011 at an oral hearing at which Mr Markos was present; he refused permission to appeal. In consequence, the stay of the possession order came to an end.
6. On 26 May 2011 HHJ Moloney ordered that a penal notice be attached to the order of 13 October 2010 requiring that possession be given and ordered that it be served personally on each defendant. On 3 June, the order having been served personally on Mr Markos but attempts to serve it personally on Mrs Markos having failed, HHJ Moloney ordered that it could be served on Mrs Markos with the penal notice by putting it through the letter box of the property which is the subject of the proceedings and at which of course Mrs Markos lives. It was so served but the order was still not complied with.
7. On 9 June Mr Webb (and I think Mr MacDonald who had by then been joined as a Claimant in the proceedings) issued a notice of hearing for a committal application on the grounds of the defendants' failure to comply with the possession order. The papers were duly served. On 12 June Mrs Markos put in an application for the committal application to be dismissed, and on 14 June Mr Markos wrote to the court in opposition to the application, referring to the fact, of which he was clearly aware, that there was to be a hearing at 10.00am the following day.
8. On 15 June the application came before HHJ Murfitt. Mr Webb was there in person. The court had the letter from Mr Markos and the application from Mrs Markos, and the judge made the committal order sought. We do not have a transcript of his judgment, but we do have a transcript prepared by him, or by the court, from his notes, in the course of which it is said that he was satisfied as to due service of the application, in the light of the evidence before him and the correspondence from Mr Markos and Mrs Markos. He said that the grounds for opposing the committal application were without merit and had already been dealt with by the Court of Appeal, and there is a note which I suspect is mistaken at one point; it says "defendants" but I think it must mean "claimants", indicating that they had been in touch with the bailiff out of concern for Mrs Markos' position because of her age, and they had been told that if the order was provided to the bailiff as soon as possible the latter would liaise with the social services to ensure that her welfare and accommodation were looked after. The applicants opposed the suggestion that the committal should be suspended, but Judge Murfitt considered that it was appropriate to suspend the order, possibly in order to give a last chance to the defendants, but also to ensure that social services would have adequate time in which to respond and prepare for the contingency. So the judge made the order committing the defendants to prison for 14 days for their breach of the order of 13 October 2010, and as I say suspended it on terms that it would not be enforced if they vacated by 28 June. He made provision in his order for substituted service on the defendants.
9. That is the order against which each defendant appeals by the proceedings which are listed for hearing today. The Appellant's Notice was issued on 28 June, the last day before the effective date of the committal order, with an immediate application that the committal order be suspended. I directed that the committal order should indeed be suspended, pending the hearing of the appeal, but that the appeal should be heard on 8 July, that is to say today. Mr Markos asked for the hearing date to be adjourned in the meantime, in order that he should have plenty of time in which to put in a bundle of documents. He has put in an Appellant's Notice, but largely what this court knows about the course of the proceedings comes from my knowledge of the case, in particular from my judgment of 6 May 2010, and from the Southend County Court being able to provide us with some documents, including for example the transcript of HHJ Lochrane's judgment on 13 October 2010, Judge Murfitt's notes from the hearing on 15 June, and the court file.
10. So the position is, therefore, that Mr and Mrs Markos have appealed against the committal order, as they are entitled to do, but they have not supported their appeal with anything more than a basic Appellant's Notice, and with repetition of the grounds which have been gone over in the past, which show an obstinate refusal to accept what has happened since the making of the charging order in 2004. The fact is that Mr Webb and Mr MacDonald are now the legal owners of the property; Mrs Markos and Mr Markos, her son, have no right to stay in the property; and every order made against them has been challenged to the fullest extent possible, and sometimes even beyond that; and, so far as the committal application is concerned, the judge below was satisfied that the necessary procedural steps had been taken, that the application and the evidence had been served and that there was neither a procedural nor a substantive reason why he should not make the order.
11. I pause at this moment because the court has just been handed two letters from Mr Markos, the first dated yesterday which was further to an intervening letter that I have mentioned from Mr Markos of 4 July, by which he asked for a substantial extension. Yesterday's letter asked for confirmation that the hearing listed for today had been adjourned. The second letter is dated today. He had been told that the hearing was to proceed today; he apologises for not attending the hearing; he repeats the contents of his letter of 4 July, in which he explains that he would wish to have professional representation for himself and his mother, particularly for his mother, and would like to have time to put in a proper bundle. He asks for a further adjournment and a stay of execution. He refers to the fact that MacDuff J had stayed the possession order pending the determination of the application for permission to appeal. He says:

"On 6 May 2011 Beatson J accepted that my mother was incapable of attending and representing herself and that nobody was representing or speaking on her behalf."

He goes on to say:

"However, the High Court order clearly did not determine my appeal."

That is a point which I do not fully understand, but we have a copy of Beatson J's order which refers to the Appellant's Notice on the part of Mrs Markos. It refers to Mr Markos being present, and it dismisses the application for permission to appeal.

12. We also have MacDuff J's order, which is in the same appeal and does not make it clear whether he is dealing with one or two appellants; in any event, it seems to me clear that whatever application there was, whether it was by one appellant or both (I would suppose both appellants), the stay granted by MacDuff J benefitted both appellants, but the refusal of permission to appeal on 6 May 2011 also applied to both appellants. There is therefore, as I understand it, no basis for saying that the possession order is not in force, and in any event, as I have mentioned, with a Penal Notice attached it was served pursuant to an order of 26 May 2011. If Mr Markos had had any real point to the effect that there was still a stay because there was still an outstanding application for permission to appeal on his part he does not appear to have mentioned it between then and now.
13. Accordingly, while for reasons that I mentioned towards the end of my judgment of 6 May 2010, I regret the position that Mrs Markos and her son have got themselves into, nevertheless as I said in paragraph 26 of that judgment Mrs Markos is plainly determined not to give up possession, and if the property was to be sold with her in possession it was plainly necessary that a low price be fixed. I concluded that paragraph by saying:

"From that point of view, therefore, she has a dilemma, although I can see she may not feel it to be so because I can imagine that at her age and in the state of health, and at the stage of life that she has reached, she is simply not prepared to contemplate moving out."

That is evidently so, but the point has come at which there is no alternative, and as it seems to me, with regret, she will have to be obliged to move out, and no doubt Mr Webb and Mr MacDonald will be aware that they may need to take steps to make sure that she and her son do not attempt to break back in, as they did on one previous occasion.

14. For those reasons it seems to me that the court has no alternative but to dismiss the appeals of both Mr Markos and Mrs Markos against the committal order. As I say, the application was properly made and had been properly served; the contempt was a very simple and straightforward contempt, namely failure to comply with the possession order which had been served with a penal notice attached to it, and in those circumstances I can see no basis for criticising the judge's order. It seems to me that it was sensible on his part to delay its enforcement by the period that he did; it may have been overoptimistic to suppose that the Defendants might leave voluntarily, but at any rate it was sensible to give a last opportunity for that to be done if it might have happened. It has not happened, and in the circumstances it seems to me that the order has to be enforced and the committal order was appropriate for that purpose.
15. I would therefore dismiss both appeals.

Lord Justice Rix:

16. I agree. I regret that matters have come to this pass, but the appellants have sought to oppose their own interests to the justice of the claimants, and this is the unfortunate result.

Order: Appeals dismissed.