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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 >> R, R. (on the application of) [2008] EWHC 469 (Admin) (27 February 2008)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/469.html
Cite as: [2008] EWHC 469 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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| THE QUEEN ON THE APPLICATION OF R |
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Miss K Musgrave (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
IN CHAMBERS
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Crown Copyright ©
- MR JUSTICE STANLEY BURNTON: This an application to vary a receivership order made in relation to Mr R who was the subject of confiscation proceedings. The application is made by Gerania Muskova, who has been convicted of money laundering in relation to Mr R's proceeds of crime.
- The order in question contained a declaration as to the joint ownership between Mr R and Miss Muskova of certain properties. She contends that the declaration should not have been made and that she is the sole owner of the properties in question.
- This morning an application has been made by Mr Azzopardi for an adjournment of this application. The application for adjournment has been resisted. The substantive application is historic, having been issued nearly a year ago. The receivership order was made by Sir Michael Harrison, sitting as a judge of the High Court, on 14 February 2007. On 4 May 2007 Azzopardi & Co, who still act for Miss Muskova, on her behalf, issued an application for the order to be varied so as to delete the declarations to which I have referred. What is said on her behalf is that she was not served with at least a notice of the date of the hearing and has therefore had no opportunity to challenge the declaration. She was, I think it is accepted, served with the application itself by the Crown Prosecution Service (CPS) but it is disputed on her behalf that she did receive a notice of hearing, although there is no evidence to me to that effect. She has been represented by Mr Azzopardi today who has been acting for her for some time. He is a solicitor without higher rights of audience, but I have received his submissions.
- The objection to the adjournment and the application is the very considerable delay that has taken place since it has been issued without any evidence in support of the application having been filed, any bundle of documents being filed or skeleton argument being filed, notwithstanding the various chasers on behalf of the CPS and appreciation by Mr Azzopardi of the need to do these things shown in the correspondence and indications that, for instance, a bundle of documents would be filed at a very early stage.
- I am asked on behalf of the CPS to exercise my case management powers by dismissing this application.
- There has indubitably been very considerable delay in pursuing this application in terms of failing to supply any evidence, skeleton argument or bundle of documents.
- The contention that Miss Muskova was not notified of the hearing is inconsistent with the evidence put before Sir Michael Harrison and inconsistent with the confirmation of service signed as long ago as 4 December 2006. Cross-examination on that after this delay would be extremely difficult. In any event, there has been a failure to pursue this application which in my judgment is inexcusable. The excuses put forward relate to Mr Azzopardi's personal position: his lack of assets, the freezing of his bank account and the like. If that is the case he should long ago have passed over the instructions to a firm of solicitors who could properly act for Miss Muskova. The delay is inexcusable.
- The failure to be in a position to put before the court at least some evidence in support of Miss Muskova's case today is inexcusable. Moreover I accept, as I have been told by Miss Musgrave, that in the confiscation proceedings in the Crown Court (which themselves have been inexcusably delayed) no evidence had been put forward to justify her contention that she is the sole owner of these properties. Such evidence that has been put forward goes to the receipt of rent rather than to the beneficial interest in the properties themselves. There is, I accept, a potentiality of injustice if Miss Muskova is unable to put forward her case that she is 100 per cent owner of these properties. I am bound to say that, on the face of it, it seems to me that all that will do is increase the amount of confiscation against her and achieve nothing in her favour at all.
- One reason why I am going to take the course I am is that at the moment I am wholly unconvinced that there is any real benefit to be obtained by her in pursuing this application at all. Having read the correspondence and heard Mr Azzopardi, I am quite clear that there can be no confidence that if I were to adjourn this case for seven days or fourteen days the matter would come back before the court properly prepared by Mr Azzopardi with his client not only represented by counsel with rights of audience but also the requisite evidence to support her contention. I say "requisite evidence"; at this stage the court would not necessarily look at convincing evidence, but there must be sufficient evidence as to raise an issue. That does not exist before me. Nor is there, as I have already indicated, any evidence to explain why, having been served with the proceedings in the first place, she did not respond in any way to them before Sir Michael Harrison made his order. I accept the recent evidence I have before me that she was, indeed, served not only with the application for the order but also notification of the date of hearing.
- What I propose to do in those circumstances is to strike out this application. I strike it out rather than dismiss it because of the delay that has taken place. If a properly formulated application is put before the court in good time - backed by evidence and by material showing that the outcome of the dispute could have a real effect on her financial position, that is to say that it might leave her with some assets of her own rather than simply an increased confiscation order - the position may be different.
- As well as striking out this application, I am going to direct that if any further application is made it will stand to be itself struck out unless it is supported by a witness statement setting out the facts on which the contention that the properties belong to her solely is based, an explanation as to why she did not appear at the hearing before Sir Michael Harrison and an explanation as to why the application will have any effect on her net financial position rather than simply go to affect the amount of the confiscation order against her. I make that direction as well as striking out this application which I do because of the inexcusable failure to prosecute it.
- MISS MUSGRAVE: Can I deal with the matter of costs. I seek costs of today's hearing and the preparation pursuant to it. I pass to my friend a copy of the costs schedule. Costs are sought in the sum of £3,125. I pass two copies to your Lordship in case one is required for the court file. You will see matters set out there: counsel's rate at £80 per hour which is the standard rate of counsel.
- MR JUSTICE STANLEY BURNTON: I see what it says.
- MISS MUSGRAVE: I apply for those costs. It is a matter for the court who the payer of those costs should be in terms of Miss Muskova or those who represent her. I suspect that there is nothing I can add to that argument for your Lordship.
- MR JUSTICE STANLEY BURNTON: What order are you asking me to make?
- MISS MUSGRAVE: I invite you, first and foremost, for an order as against Azzopardi & Co. It would appear that where the delay has occurred, if there is fault to be apportioned, it is as much if not solely with those who are instructed. We heard no representations that it was lack of instructions that stopped these matters proceeding.
- MR JUSTICE STANLEY BURNTON: Do you object to costs being made either against you or your client?
- MR AZZOPARDI: In the light of your judgment, I cannot.
- MR JUSTICE STANLEY BURNTON: What do you say about costs against you personally?
- MR AZZOPARDI: Miss Muskova's funds depleted two years ago. I have been acting for her pro bono. From the correspondence that was read to you, Miss Muskova - and the prosecution are aware - even at the time of the trial suffered from mental difficulties. The prison psychiatrist reported to the judge. You could see from the correspondence that she changed - - I do not wish to pass the blame on Miss Muskova but she is not the easiest of clients to deal with. I have been without funds and I have been working for her.
- MR JUSTICE STANLEY BURNTON: Long ago you could have said to the CPS and to the court "I am not in a position to represent her."
- MR AZZOPARDI: This is something that next week will be ventilated before the Crown Court.
- MR JUSTICE STANLEY BURNTON: I am not in a position to pursue next week's hearing, the application next week. You have kept the application alive and therefore costs have been incurred.
- MR AZZOPARDI: Yes. I do not wish to antagonise the court.
- MR JUSTICE STANLEY BURNTON: What do you say about the amount?
- MR AZZOPARDI: I do say that the amount is excessive. This is only an application, not the entire hearing. Mr R's application for receivership is a separate application in its own right. I see ten hours were spent for Mr R's lawyers and another ten hours for Miss Muskova, and a case worker five hours. That is 25 hours on a single application.
- MR JUSTICE STANLEY BURNTON: This application has been going for nine or ten months, or something, you being chased every now and again.
- MR AZZOPARDI: Yes, but there is the sum total of the documentation arising. There is a number of letters. I can put it no - - - - -
- MR JUSTICE STANLEY BURNTON: Thank you.
- MR JUSTICE STANLEY BURNTON: The Crown Prosecution Service is, undoubtedly, entitled to its costs. I regret that I have come to the conclusion that today's hearing has been wasted as a result of the failure of Mr Azzopardi to deal with this matter, and it is appropriate to make an order for costs against him for reasons I touched upon in reaching the conclusion that I strike out the application. Nothing has been done to pursue it. Whatever difficulties he has with his client, there was no reason to keep this application alive without indicating - indeed, without deciding - whether it would be effective or not. There has been a total failure to comply with all the procedures of the court.
- So far as the amount is concerned, given the duration of this application in terms of the amount of times it has been hanging about, and the correspondence chasing Mr Azzopardi, I am not surprised at the figure I see. I propose summarily to determine the amount of the CPS's costs in the sum of £3,000.
- MISS MUSGRAVE: Can I ask for one other direction to be considered? Your Lordship very carefully laid out the terms on which a new application might be considered to avoid striking out. Those instructing me now have to consider whether they can go ahead and enforce the receivership order. Might I seek guidance as to time by which any further application or otherwise must be made so that if nothing is received the receivers can go ahead and do their duty?
- MR JUSTICE STANLEY BURNTON: I would have in mind Friday week, whatever the date is.
- MISS MUSGRAVE: 7 March.
- MR JUSTICE STANLEY BURNTON: Mr Azzopardi, do you want to say anything about that?
- MR AZZOPARDI: I would like three weeks, if possible.
- MR JUSTICE STANLEY BURNTON: That gets too close to the hearing in the Crown Court; if you file evidence the CPS will want to respond to it. You should have already been in a position to produce that evidence.
- MR AZZOPARDI: The timetable that counsel and CPS counsel have agreed will incorporate my client's evidence certainly before the hearing. That could not have been done until the expert reported. That is in counsel's hands at the moment. The original defence by Miss Muskova, which my friend said was withdrawn, arose because the original experts presented a problem. That is something for another court. I do not want to start criticising the Crown. That was already done in another court and accepted, as I understand, something that His Honour Judge Worth Williams took account of. I anticipate that when the revised evidence comes to light that will cover the evidence that your Lordship found missing today. I did not know when that would be forthcoming. I am in counsel's hands about that, but in the next few weeks. Can I say three weeks?
- MR JUSTICE STANLEY BURNTON: Fourteen days.
- MR AZZOPARDI: I have another request. I wonder if a transcript of these proceedings can be made available. Miss Muskova has no funds. She is subject to a legal aid certificate which is not going to pay anything to counsel save for one day's hearing and possibly a week's trial.
- MR JUSTICE STANLEY BURNTON: What are you asking for, a transcript of the judgment?
- MR AZZOPARDI: And these proceedings.
- MR JUSTICE STANLEY BURNTON: Why the proceedings? She is entitled to see a transcript of the judgment; but all of the proceedings, why? That just increases the costs, you see.
- MR AZZOPARDI: I appreciate that. It may be that - - can I, to safeguard the position, ask for permission to appeal? It may not be - - - - -
- MR JUSTICE STANLEY BURNTON: You may ask, but I am not going to give you permission to appeal. It is matter of discretion, having regard to the facts put before me.
- MR AZZOPARDI: I would ask for a transcript of the judgment.
- MR JUSTICE STANLEY BURNTON: She is entitled to a transcript of the judgment. She can have a transcript of the judgment. I will direct that if any application is made it should be put before me as soon as possible. I will then consider whether it raises prima facie case which would justify a direction that the CPS respond to it.
- MISS MUSGRAVE: I am obliged. Is that a matter you would deal with on paper rather than open court?
- MR JUSTICE STANLEY BURNTON: What - in the first place?
- MISS MUSGRAVE: Yes, and then invite if necessary - - - - -
- MR JUSTICE STANLEY BURNTON: Yes. Indeed if I see it I may indicate that the whole matter should be dealt with on paper. Let us see whether it happens.
- MISS MUSGRAVE: I am obliged.
- MR JUSTICE STANLEY BURNTON: If there is no application within fourteen days, it follows that the receiver is free to proceed.
- MR AZZOPARDI: Can I have the bundle?
- MR JUSTICE STANLEY BURNTON: Usher, would you give Mr Azzopardi the bundle?
R U L I N G