England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION, LEEDS DISTRICT REGISTRY
HHJ KAYE QC
3LS30093

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th June 2014

Lord Justice Patten :

1. This is an appeal by Mr Nelson against an order made by HH Judge Kaye QC dated 6 August 2013 striking out an application made by Mr Nelson dated 29 July 2013 to set aside a General Civil Restraint Order ("GCRO") made against him by HH Judge Behrens on 7 March 2013. Judge Kaye QC made his order after a consideration of the papers and without an oral hearing so there is no judgment as such. But his order states that the 29 July application was struck out as not being made in compliance with the terms of the GCRO.
2. The GCRO as subsequently drawn up contains two paragraphs which are material to this appeal. Paragraph 4 of the order states that:

"Any amendment or discharge of this order can be made only by a High Court judge or section 9 judge. If David Joseph Nelson wishes to seek an amendment or variation, he must first seek permission of District Judge Jordan or other District Judge to make the application. Such application (for permission to make the application to the High Court or section 9 judge) is to be dealt with in accordance with paragraph 2 above (ie an application in writing to be dealt with on paper alone by District Judge Jordan) and will be subject to the procedure set out in paragraph 3 above in respect of any application for permission to appeal any decision of the District Judge."

3. But paragraph 8 of the order states that:

"THIS ORDER does NOT prevent you from taking any one or more of the steps set out below without the prior permission. YOU MAY:

(i) Apply, without obtaining prior permission, to set aside all or any part of this Order. Any such application should be made to HH Judge Behrens quoting the case reference number at the head of this Order

(ii) Apply, without obtaining prior permission, for permission to appeal against this order by filing an Appellant's Notice in the Court of Appeal (Civil Appeals Office Registry, Room E307, Royal Courts of Justice, Strand, London, WC2A 2LL). You should not take this step until you have made application under 8(i) hereof."

4. The reason for the inclusion of paragraph 8 was that Judge Behrens made the GCRO of his own motion after dismissing as totally without merit a further application by Mr Nelson to have set aside a bankruptcy order made against a Ms Shirene Hanley on 25 November 2010. Not having heard Mr Nelson on the making of the order, the judge was required by CPR 3.3(5) to provide for the party affected to be able to apply to have it set aside or varied and paragraph 8 therefore gave Mr Nelson an unqualified right to apply to set aside the order.
5. The Court file contains both a composite order of 7 March 2013 (striking out as an abuse of process the application to set aside the bankruptcy order and imposing the GCRO) and a separately drawn version of the GCRO containing the provisions which I referred to earlier. Mr Nelson then applied on 22 March to strike out the orders made on 7 March. In the application he requested an oral hearing. Mr Nelson is entitled to an exemption from fees but on this occasion Judge Behrens decided (for reasons set out in a note dated 27 March) that a fee was payable under paragraph 10 of Schedule 2 to the Civil Proceedings Fees Order 2008. He therefore directed that the application should not be listed until the relevant fee was paid.
6. Mr Nelson wrote to the Court to the effect that a fee was not payable and asked that the listing directions be varied accordingly. But Judge Behrens declined to do so and instead directed that unless the fee was paid by 27 April the application would stand struck out. Subsequently, the judge changed his mind and accepted that no fee was in fact payable. He therefore arranged for the application to be listed before him on 5 June 2013 in order to be determined on its merits.
7. Mr Nelson appeared in person before Judge Behrens on 5 June but the judge dismissed his application to set the orders of 7 March aside and refused permission to appeal. He then applied to this Court for permission to appeal. As I understand it, Mr Nelson had submitted to the judge that by making the orders of his own motion and without a hearing, the process infringed the rules of natural justice or the appellant's convention rights under Article 6. Lewison LJ rejected the application for permission to appeal as totally without merit on the basis that the judge had power under the Civil Procedure Rules to make the order in the way that he did and that the inclusion of the right to apply to set the order aside contained in paragraph 8 disposed of any complaints based on the rules of natural justice or Article 6.
8. Lewison LJ also dismissed Mr Nelson's other ground of appeal which was that the judge took irrelevant factors into account in deciding to make the order. This is a reference to the long litigation history beginning with the bankruptcy order against Ms Hanley in 2010. Very briefly stated, Ms Hanley was declared bankrupt in the Leeds County Court on the petition of Jewson Limited and Mr Wood, the respondent, was appointed to be her trustee. An appeal against the order failed but there were then repeated but unsuccessful attempts by both Ms Hanley (with the assistance of Mr Nelson) and then by Mr Nelson in his own right to have the bankruptcy order annulled.
9. The only significant asset in the bankruptcy is a property in Dewsbury, Yorkshire in respect of which the trustee sought a possession order. HH Judge Langan QC made an order on 12 March 2012 requiring Ms Hanley to give vacant possession to the trustee on 27 April 2012. Permission to appeal was refused. A warrant was to be executed on 13 June 2012 but there was then an application by Ms Hanley to suspend the execution which was itself adjourned pending her application for permission to permission to appeal against the possession order. The latter application was dismissed as being totally without merit by Maurice Kay LJ on 31 July 2012 and on 28 September 2012 the application to suspend execution of the warrant was itself dismissed. Eviction was then arranged for 9 October.
10. Possession was finally obtained on that day (notwithstanding an unsuccessful last-minute challenge to have the order of 28 September set aside) but by 1 November Mr Nelson and Ms Hanley had either re-occupied or were attempting to re-occupy the property. The police became involved and Ms Hanley and Mr Nelson were arrested and bailed. Mr Nelson then commenced County Court proceedings against the trustee for a declaration that he had no lawful authority to enter the property and that his seizure of goods on the premises infringed Mr Nelson's Article 1 rights. Two further applications by Mr Nelson challenging the lawfulness of his eviction were dismissed by HH Judge Gosnell on 15 February 2013. There was then the further application by him to set aside the bankruptcy order which Judge Behrens dismissed on 7 March.
11. Against this background, Lewison LJ refused permission to appeal on the ground that Judge Behrens had taken irrelevant matters into account in deciding to make the GCRO. He said:

"3. In considering whether to exercise his power to make an order on his own initiative, the judge was fully entitled to have regard to the long-standing history of Mr Nelson's litigation and the many unsuccessful attempts he has made to challenge the bankruptcy order against Ms Handley.

4. There is therefore no merit in the argument that the judge took irrelevant factors into account."

12. Mr Nelson has submitted that the only application heard by Judge Behrens was one by him to discharge the order of 7 March striking out his application to set aside the bankruptcy order. But it is clear from the transcript of the judgment that Judge Behrens treated the application as one to discharge both parts of the composite order of 7 March including the GCRO since Mr Nelson's jurisdictional complaint that he had been denied a proper hearing related to both. He had submitted that both orders were a nullity.
13. I therefore reject the submission that there has been no previous hearing to determine the merits of the GCRO. The right granted to Mr Nelson under paragraph 8 of the GCRO to apply to set it aside has been exercised by the application which Mr Nelson made to Judge Behrens on 5 June 2013. Judge Kaye QC therefore considered that any further application to set aside the order as invalidly made had to comply with the procedural requirements contained in paragraph 4 of the order which the application of 29 July clearly did not. Lewison LJ gave permission for this appeal on the basis that the application did not have to comply with the restrictions imposed by the GCRO when it sought to challenge whether the order should have been made in the first place: see Deeds v Various Respondents [2013] EWCA Civ 1678. That was a case which concerned an initial application by the person subject to a Civil Restraint Order made without a hearing to have it set aside: the equivalent of the application which Mr Nelson made under paragraph 8 of the GCRO in this case on 5 June. There is clearly an argument as to whether an application to set aside a GCRO on Article 6 grounds is an application to discharge the order within the meaning of paragraph 4 of the order but even if the correct view is that the application issued on 29 July fell to be treated as an application made under paragraph 8(i), there are other insuperable obstacles to its succeeding.
14. Applications made under CPR 3.3(5) must be made not more than 7 days after the service of the order to which the application relates: see CPR 3.3(6). The application of 29 July was therefore more than 4 months out of time. More fundamentally, the present application is based on entirely the same grounds as the one made to Judge Behrens on 5 June: namely that Mr Nelson's Article 6 rights were not respected by the way in which the order came to be made. Those grounds of appeal were dismissed as totally without merit by Lewison LJ for the reasons I have mentioned and Mr Nelson's attempt to resurrect them in this application was, in the circumstances, an abuse of process. This serves to underline the justification for the GCRO which Judge Behrens made and to make the striking out of the 29 July application the only appropriate order.
15. For these reasons I would therefore dismiss this appeal.

Lady Justice Gloster :

16. I agree.

Lord Justice Underhill :

17. I also agree.