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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Harpaz, R (on the application of) v Cambridge County Court & Anor [2008] EWHC 2284 (Admin) (06 March 2008)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2284.html
Cite as: [2008] EWHC 2284 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF HARPAZ | Claimant | |
| v | ||
| CAMBRIDGE COUNTY COURT | Defendant | |
| and | ||
| IRWIN MITCHELL SOLICITORS | ||
| MRS HILARY CLIFFORD | Interested Parties |
____________________
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(Official Shorthand Writers to the Court)
The Defendant was not represented and did not attend
Alex Hall Taylor (instructed by Watson Burton LLP and Irwin Mitchell Solicitors) appeared on behalf of the Interested Parties
____________________
Crown Copyright ©
- JUDGE MACKIE: This is an application by the interested parties in these proceedings for a civil restraint order against the applicant in the action, Mr Harpaz.
- This arises in the Administrative Court because Mr Harpaz applied for permission to bring judicial review proceedings in September 2007 and the matter came before Underhill J. The judge on that occasion unsurprisingly refused permission to Mr Harpaz to bring judicial review proceedings and concluded that the application was totally without merit.
- Those applications are against a background of a variety of different county court proceedings brought in the Cambridge County Court by Mr Harpaz against Irwin Mitchell Solicitors and Mrs Clifford.
- The origin of the dispute lies in some Employment Tribunal proceedings between Mr Harpaz and his then employer, when Irwin Mitchell, who were the solicitors for the employer, wrote to the Tribunal explaining why it would not be right for Mrs Clifford, for whom they also acted, to be called as a witness. The application was entirely appropriate, as was evident from the fact that the Tribunal granted it.
- In November 2005 Mr Harpaz sued Irwin Mitchell Solicitors in Cambridge County Court, claiming that they had pretended that Mrs Clifford was their client when she was not, and making other related claims to the effect that if she had been required and compelled to go to the Employment Tribunal things would have turned out much better for the claimant. There was an application to strike out that action by Irwin Mitchell and District Judge Farquhar granted that application in January 2006 and awarded costs to Irwin Mitchell against Mr Harpaz. Mr Harpaz's application to the Circuit Judge, His Honour Judge O'Brien, for permission to appeal failed.
- In April 2006 Mr Harpaz sued in Cambridge County Court again. This time he went for Mrs Clifford on grounds pretty similar to those which had led to his action against Irwin Mitchell. In that action he sought compensation for the loss of compensation in the Tribunal. There was an application for summary judgment against him, which was granted by District Judge Wharton on 5th July 2006.
- Having lost that application, there were further applications to appeal and other applications, again to the Circuit Judge. There was a sequence of yet further applications before His Honour Judge O'Brien, which are accurately summarised in the skeleton argument prepared by Mr Hall Taylor, who appears for the interested parties.
- Therefore, the position is that Mr Harpaz has launched a series of hopeless legal actions, all of which have so far failed, in circumstances which, apart from using up his own energies and resources, have undoubtedly caused stress, worry, inconvenience and expense to those unfortunate enough to be on the receiving end of them. It is in that context that the application for a civil restraint order is made.
- Detailed guidance about the form and jurisdiction for civil restraint orders is set out in the CPR 3 - CPD. There are three sorts of civil restraint order. The limited civil restraint order is inappropriate because of the fact it is limited. The general civil restraint order is at this stage inappropriate, because Mr Harpaz has brought proceedings against only a restricted group of people relating to a single underlying grievance. The general civil restraint order, which is, on the face of it, the appropriate option here, can only be granted where a party against whom the order is to be made persists in issuing claims or making applications which are totally without merit in circumstances where an extended civil restraint order would not be sufficient or appropriate.
- The essence of this application is helpfully set out in the properly extensive skeleton argument from counsel. The first requirement is that the party against whom the order is to be made persists in issuing claims or making applications which are totally without merit. It has already been determined by a High Court Judge that the judicial review proceedings were totally without merit. It has also been determined by the two District Judges and a County Court Judge, all using different expressions, that the proceedings had no prospects of success whatsoever.
- I have reviewed the nature of the claim brought by Mr Harpaz and I have given him an opportunity to explain to me why he thinks he has a good case. In my judgment, the conclusions reached by the District Judge and the Circuit Judge were plainly right. This is a hopeless case which has no chance of success and never has done. Moreover, it appears to be based on a fundamental misunderstanding about the role of the solicitors and what is required from a solicitor, so far as the court is concerned, before it is to be accepted that he or she acts for a client. Moreover, it is abundantly clear from all the papers before me, first that Irwin Mitchell were acting for this lady and, secondly, that that was with this lady's consent.
- Mr Harpaz appears to base his submissions on the idea that because he chooses to swear a witness statement about some matter, other parties become under an immediate obligation, first of all to respond to his witness statement and, secondly, to subject themselves to interrogation by him about it. That is not the way the courts work.
- Put shortly, it is abundantly clear that these applications are totally without merit. So the only matter I then have to consider is whether, in all the circumstances, an extended civil restraint order would be sufficient. It is quite plain to me from having seen Mr Harpaz and heard him that, although he conducts himself courteously, he has an obsession with this particular grievance of his which shows no sign of going away, notwithstanding the repeated lessons which he should have learned from judges of the County and High Court along the way.
- It seems to me that this is a paradigm example of where an extended civil restraint order will be merited. Unless an order is made, Mr Harpaz is going to continue, or there is certainly a very, very strong risk that he is going to continue, running up costs to be incurred by third parties, and worse, creating unnecessary and unfair stress for them inconvenience to the court. So I am going to grant this application. I will make an extended civil restraint order in terms to be discussed.
- There is a need for a judge to be appointed for that purpose. It seems to me that it would be inappropriate to appoint a full High Court Judge for that and I would not be thanked for making that appointment. It is also probably inappropriate to appointment a District Or Circuit Judge in Cambridge, bearing in mind where these proceedings have come and so, with no enthusiasm, it appears to me that the appropriate judge to be nominated for that purpose should be me, bearing in mind my level in the judiciary and the fact that I am permanently based here in the Royal Courts of Justice and do not sit anywhere else. So if applications need to be made, then they can come on relatively speedily.
- Can I hear from counsel about the form of order?
- MR HALL TAYLOR: My Lord, I think the form of order is relatively simple, following the lines of the practice direction.
- JUDGE MACKIE: Where do we find that?
- MR HALL TAYLOR: It is at pages 128 and 129 of the first volume of the White Book.
- JUDGE MACKIE: Could you kindly show Mr Harpaz?
- MR HALL TAYLOR: Yes, if we have another copy of the White Book here.
- JUDGE MACKIE: That is the form of the --
- MR HALL TAYLOR: That is the practice direction.
- JUDGE MACKIE: Is there a form?
- MR HALL TAYLOR: I do not believe there is an actual form of order. I did have a look but I will have another search in case there is an example of one anywhere. I am happy to draft up an order for your associate and to e-mail it to her, but it should be an order which restrains Mr Harpaz from issuing claims or making applications in the High Court or any County Court concerning any matter involving or relating to or touching upon or leading to... I think then we should list the proceedings that have been brought to date by claim number, because that will address really all of the points which come out of the same grievance that your Lordship has identified, without first obtaining the permission of your Lordship, and the order can name you there. I think the order should also contain a provision that Mr Harpaz may apply for amendment or discharge of the order, provided that he has first obtained your permission to do so and may apply for permission to appeal the order and if permission is granted may appeal the order.
- I do not know whether your Lordship wishes to express a view as to whether it should also contain an indication to Mr Harpaz in the form of 3.3, namely that if he does issue a claim without permission it will automatically be struck out. In some ways that might be a salutary warning and something that it might be sensible to include in the order.
- JUDGE MACKIE: Yes.
- MR HALL TAYLOR: That is what I would propose to put in the order, effectively using the words of the practice direction, identifying the specific proceedings and identifying your Lordship as the judge. If that would be appropriate, I will draw up an order in those terms this afternoon or perhaps this morning and then e-mail it or get a hard copy run over to you for approval.
- JUDGE MACKIE: Okay. The usher will give you a piece of paper with it.
- MR HALL TAYLOR: Thank you.
- THE CLAIMANT: Can I say something?
- JUDGE MACKIE: Yes.
- THE CLAIMANT: Can it be added to the order that Irwin Mitchell will submit a statement under oath whether Heather Clifford is a client? And I simply don't see any reason why should -- such order shouldn't be given, because it's no cost for them, it's zero cost for them. If it takes them £5 -- the cost of writing an affidavit is £20? How much? Something like that, it cannot be more, and it would clarify the matter. It is clear to you -- you say I'm obsessed, but I'm obsessed because I don't see evidence and I don't have a chance to get evidence. I'm blocked from having a chance to get evidence about this issue, whether she is client or not. Therefore, I'm asking for the order, and since you believe that they are really her solicitor, there no reason not to give this order, because it will be zero cost. So why not just give it and close the record. Make it clear to me. You know, you can think about me, to make it clear to me what the situation is. Can't you just give an order to give -- to put an affidavit into this. It will cost them nothing. There's simply no reason not to give it. If you -- if what you say is true, there's no reason not give it; and if what I'm saying is true, clearly there is a reason to give.
- JUDGE MACKIE: Mr Harpaz has asked me to add a rider to the order to require Irwin Mitchell to provide a witness statement about their representation. The position is I am not going to order that. It is an unhappy illustration of Mr Harpaz's preoccupations. I mean no personal offence to Mr Harpaz in describing, I think accurately, his concerns and grievances as being an obsession. I will not order that change.
- The effect of my order, Mr Harpaz, is that you cannot bring any further action of any kind about this matter without making some further application to me. What that means is every time that you issue, if you do, some proceedings in the County Court or the High Court, they will automatically be stuck out. They will not be heard. They will get nowhere. The only way in which you could bring anything further in relation to this grievance of yours is by making an application to this court and to me for permission to do that.
- I can tell you now that, on all the information which I have read, and I have read most, if not all, of the 457 pages in the bundle, there is no prospect whatsoever of me giving you permission to bring proceedings related to these matters. But if circumstances change, or there is some other development which, in your judgment, entitles you to bring some fresh proceedings, then the way to do it is to make an application to me. You can only come here. You cannot go anywhere else. If you do, it is just struck out.
- Anything else?
- MR HALL TAYLOR: My Lord, there is the question of costs. Underhill J awarded our costs at the previous hearing but left them to be assessed today. There are also the costs of today. In my submission, our action has been shown to be entirely justified in bringing this matter before the court.
- My Lord, I do not know whether you would wish to, given that the matter goes over a number of days, assess the costs now, or whether you would prefer to leave all of them to a detailed assessment. We are in your Lordship's hands on that. There are statements of costs which may have reached your Lordship, I do not know.
- JUDGE MACKIE: What is the total claim on all the statements of costs?
- MR HALL TAYLOR: I think it is about £15,000. There are two sets because there are two firms of solicitors involved: my instructing solicitors, Watson Burton, and my other instructing solicitors, Irwin Mitchell themselves. The total amount claimed, your Lordship may have seen. Do you have a statement of costs? Perhaps I could hand them up. (Handed). There are two statements of costs. The larger is the first one, that of Watson Burton, who has done the major of the work in preparing and dealing with correspondence and the applications themselves, which totals just under £11,000, including my fees. The Irwin Mitchell statement comes to £4,611. So the total is almost exactly £15,585.
- JUDGE MACKIE: Right, let me talk to Mr Harpaz. Mr Harpaz, two questions arise. One is, do you agree that, having lost, you should pay the costs?
- THE CLAIMANT: I'm not too sure I understand the question.
- JUDGE MACKIE: What is happening is that you were ordered to pay the costs of the application before Underhill J. He said you had to pay the costs.
- THE CLAIMANT: Yes. Underhill J --
- JUDGE MACKIE: Let me just spell it out for you. That is decided: you have to pay those costs. What they say is that you should also pay the costs of today, because you have come here, you have fought the case, but you have lost. What do you say about that?
- THE CLAIMANT: Underhill J did not say that I need to pay the costs, because it wasn't clear to him whether Irwin Mitchell represent Hilary Clifford. That's not what Mr Taylor said, but just because he's -- no, Underhill J say -- no, he didn't say. He said -- he just said -- he said (inaudible). In the court I say, "You cannot give them the costs, because you don't know if they represent Mrs Clifford", and I said, "There is affidavit to say that she doesn't." And then Underhill J, had decided that he'd leave it aside. So this decision haven't been made, whether they represent Hilary Clifford. He did not make his decision. He refused the review because he couldn't -- he said he couldn't see it. Consider (inaudible) and judicial error, because that what he need to consider. And on this he was probably right. Probably, he was right. But on the question of costs, he couldn't make his decision because he didn't know the facts of whether they represented Hilary Clifford, and he couldn't make this decision. That's why he didn't make his decision. That what happened.
- JUDGE MACKIE: Thank you. It appears on the face of the file that Underhill J made an order for costs against Mr Harpaz. Mr Harpaz submits that he should not have to, but that is not the case, and that Underhill J did not make an order for costs because Underhill J had doubts about Irwin Mitchell's claims to represent Mrs Clifford. I do not doubt the sincerity of Mr Harpaz, but that is obviously nonsense.
- It follows that there are two issues in relation to costs: one is whether he should pay the costs and, secondly how much they should be. The costs of the application before Underhill J have already been determined to be paid by Mr Harpaz by the judge on that occasion. Similarly, the costs of today must be paid by Mr Harpaz because he has chosen to contest this application and has lost it.
- The total costs claimed are £15,600. The view I take of Mr Harpaz is that it is very difficult for him to articulate or form a useful view about the quantum of what I am sure to him is quite a large sum of money. In those circumstances, what I am going to do is this: I am going to order a payment on account, because, whatever happens, Mr Harpaz will have to pay some costs. It seems to me inevitable that Mr Harpaz will have to pay at least £7,000. That is, it is to me inconceivable that he will be ordered to pay much less than half of the sum claimed. I am therefore going to make an order for the payment upon account of costs of £7,000 within 14 days. Otherwise, because this is a litigant in person not versed in matters of costs, I direct that the costs be assessed by the usual way if not agreed.
- Anything else?
- MR HALL TAYLOR: No. I am grateful, my Lord.
- JUDGE MACKIE: Thank you all for your help.