England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		17th August 2009

Her Honour Judge Kirkham:

1. In these proceedings the claimants, Mr and Mrs Ozdowski and their two children, are bringing proceedings which they initially commenced against the Secretary of State for the Home Department. At the beginning of the hearing this morning the claimants have applied to amend that claim to substitute the Home Office, and that application has been granted, there being no objection by the defendant.
2. Mr and Mrs Ozdowski began Part 8 proceedings in the Leicester County Court. The claim form is date stamped 13 March 2009, and Mr Ozdowski has told me this morning that he asked the court to serve the claim.
3. On the claim form the defendant is shown as Secretary of State for the Home Department, and the address which is given on the form is Lunar House, 40 Wellesley Road, Croydon, Surrey. I do not have access to the court file so I cannot see from the court file itself what steps if any were taken by the court with regard to service.
4. There was a hearing before the district judge in Leicester on 20 April. The claimant attended but the defendant did not. The court made an order requiring the defendant to pay the claimant damages assessed at just under £418,000 and to pay costs. That order appears to have been amended on 22 April, although I do not know what the basis of that amendment was.
5. On 23 April the claimants amended their Part 8 claim form; that is, after the judgment had been entered.
6. Neither the original claim form nor the amended claim form appear to have been served in accordance with the requirements of the Crown Proceedings Act 1947. Section 17 and 18 of that Act are relevant. Section 17 sets out who should be party to proceedings, and Section 18 sets out the requirements for service. Section 18 provides that all documents required to be served on the Crown for the purposes of or in connection with any civil proceedings by or against the Crown shall be served on the solicitor, if any, for that department, or the person, if any, acting for the purposes of the Act as solicitor for that department. It is not challenged that the appropriate person for service in this case should have been the Treasury Solicitor at Campbell Street.
7. Service was not effected in that way. The only evidence that I can draw from the papers available to me and the information which I have been given is that if the court served the claim form and the amended claim form, it must have done so by sending it to the address on the claim form and amended claim form; that is, at Lunar House, Wellesley Road, Croydon.
8. The defendant's position is that they received the amended claim form on 28 April from the Department. They immediately sent an acknowledgement of service to the court. The matter is then further muddled because it appears that the Treasury Solicitor sent an acknowledgement of service suitable for Part 7 proceedings rather than Part 8 proceedings, but that was then corrected by sending a Part 8 acknowledgment of service. In both the defendant indicated the intention to defend the claim fully, and they assumed that they had until 22 May to serve the defence. But, by then it was all too late, judgment having been entered on 20 April 2005.
9. The rules as to service are absolutely clear. They are set out in the statute and I have outlined them already. It seems to me that the only inference which can be drawn here is that the proceedings were not served as they should have been, and it also appears that they did not come to the attention of the defendants until after judgment had been set aside.
10. Here the proceedings were not properly served further, they had not come to the attention of the defendant. It simply cannot be right therefore, that judgment should stand. Judgment has been irregularly obtained, and in my judgment this is an absolutely clear case where those irregularities are fundamental. The judgment has been obtained without the knowledge of the defendant and should be set aside. In arriving at this conclusion I have not taken into account the question of the merits. I have not invited detailed submissions on the question of the merits. Judgment should be set aside because of those fundamental irregularities.
11. It now is appropriate to set directions for matters to be regularised so that the proceedings can be brought before the court as quickly as possible and the substantive claim dealt with.

HHJ KIRKHAM: Now, Mr Ozdowski, do you want to are you proposing to make any amendments to your claim? I am dealing now with the question of directions so that we can get this on for a hearing. Are you wanting to make any further amendments or is your claim going to stand as it is?

MR OZDOWSKI: I would like to amend the claim … if I could have 28 days to do that?

HHJ KIRKHAM: 28 days? Why?

MR OZDOWSKI: Well, the …

HHJ KIRKHAM: I have read in your further submissions today, Mr Ozdowski, that you are planning to go back to Australia. I imagine that what you would both like to do is to get your life sorted out and in order, and I am sure -- isn't it going to be sensible for this to come on as quickly as possible, so that …?

MR OZDOWSKI: It is the difficulty I have …

HHJ KIRKHAM: … get it out of the way.

MR OZDOWSKI: The difficulty I have is that I work full time and we have two children, young children, so the only times I actually get a chance to work on this is in the evenings or on weekends and it is solely for that reason I don't, I can't just sit down for a whole day and work on it. 14 days? Would that be reasonable?

HHJ KIRKHAM: Mr Ozdowski, if you want 28 days, 28 days unless Mr Mandalia is objecting, you shall have -- I am simply trying to assist you to get matters on as quickly as possible. What is the broad nature of the amendment that you are proposing to make?

MR OZDOWSKI: Well, essentially I … I have got to go through … circumstances have changed since the judgment, original judgment date, in that settlement has now been granted so I need to take that into account in terms of reviewing the claim …

HHJ KIRKHAM: Alright …

MR OZDOWSKI: … and amending it.

HHJ KIRKHAM: Alright. Mr Mandalia, any objection to 28 days?

MR MANDALIA: I have no objections.

HHJ KIRKHAM: Alright. How are you proposing to deal with this, are you proposing to prepare a draft for the defendant to consider and if there is no objection to the amendment then that be simply taken as read by the court?

MR OZDOWSKI: Yes that is correct.

HHJ KIRKHAM: Alright. So where are we today, we are the … 17 August aren't we, so … So, by the 14 September the claimants shall send the defendant draft amended or reamended claim, is there a reamended claim?

MR OZDOWSKI: Yes.

HHJ KIRKHAM: There having been one amendment already, then I'm sure the … the previous … right, so send the defendant draft reamended claim. So, Mr Mandalia, then, by when the defendant to notify the claimants whether they object to the … ?

MR MANDALIA: 14 days.

HHJ KIRKHAM: Mr Ozdowski, any objection to that?

MR OZDOWSKI: No, that's fine.

HHJ KIRKHAM: Right, so that will be by 28 September, the defendant shall by 28 September notify the claimants whether they object to the amendment. Any amended defence? By what date?

MR MANDALIA: My Lady, if I ask for perhaps seven days after that, so the first week in October.

HHJ KIRKHAM: That would be by 5 October, Mr Ozdowski, any objection to that?

MR OZDOWSKI: No, that's fine.

HHJ KIRKHAM: Right, 5 October. Is this going to remain under the Part 8 procedure?

MR MANDALIA: Yes.

HHJ KIRKHAM: So on papers only.

MR OZDOWSKI: And may I mention that, in terms of another point, that the acknowledgment of service -- the defendant hasn't served any evidence, so they shouldn't be entitled to rely on any evidence of the hearing of this matter.

HHJ KIRKHAM: I am sorry, say that again

MR OZDOWSKI: The defendant was required to serve their evidence as part of their acknowledgment of service under Part 8 proceedings. They haven't served any evidence on this.

HHJ KIRKHAM: Mr Ozdowski, we are in a position where we haven't yet had effective service. Now, I take it that by proceeding down this route we are -- and this perhaps ought to be recorded in the order, that … is the defendant in a position where it does not require formal service, Mr Mandalia, can we proceed on that assumption?

MR MANDALIA: Hopefully, yes.

HHJ KIRKHAM: Yes.

MR MANDALIA: Yes.

HHJ KIRKHAM: So let's start the order. Say formal …

MR OZDOWSKI: Your Honour, can I just mention one thing. I understand there is formal service of the amended claim form. I have evidence, it is on the court file that we served the amended claim form on the Treasury Solicitor.

HHJ KIRKHAM: Very well. So by what date do you say that the defendant should have served their evidence?

MR OZDOWSKI: Well, with their acknowledgement of service, so, they get, they put in two acknowledgement of services, and neither one has, has any evidence with it. If you look at, if you look at the second acknowledgement of service, it talks about serving some evidence but it's dated 28 July and nothing has been received.

HHJ KIRKHAM: Mr Mandalia, I am looking at Part 8.5 in the White Book.

MR MANDALIA: I think the difficulty with this case is, although it is proceeding as a Part 8 claim, clearly the acknowledgment of service was sent into the Leicester County Court and that was rejected by the court, but it cannot be right if the claimant is going to be given an opportunity to file a further Particulars of Claim or a further claim form that the defendant doesn't have a proper opportunity to respond to it.

HHJ KIRKHAM: Mr Ozdowski?

MR OZDOWSKI: Well, in the latest acknowledgement of service, the solicitor has ticked … there has been a lot made of my being a solicitor in this matter, and I note that there are solicitors acting on the other side. With this … I mean, the latest acknowledgment of service, there has been something ticked where it says that written evidence … it's dated 28 July 2009 …

HHJ KIRKHAM: I am just trying to find it. Right, okay, I have found it, yes.

MR OZDOWSKI: In section E -- that's dated 28 July 2009 -- in section E he's ticked it will be filed within 14 days as agreed with the other parties. No agreement was made with the other parties, but in any case 14 days from 28 July, even if we are taking this acknowledgement of service to be valid, it has expired as well. Is there any evidence that you're looking to rely on, that the defendant is looking to rely upon? I am not sure. But -- but the rules, which is essentially what say that they are not entitled to.

HHJ KIRKHAM: Well it must be right, mustn't it, that at a substantive hearing the court has got all the available evidence so it can deal with the matter fairly to both sides? You are really objecting to the defendant actually filing any evidence?

MRS OZDOWSKI: They admitted what they did. They've admitted that they are at fault already.

MR OZDOWSKI: [To wife] Just relax (inaudible) hearing. Well no, sorry, we are not objecting, no it's alright.

HHJ KIRKHAM: It just seems to me that that must be right. So any amended defence by 5 October plus evidence that the defendant wants to rely on, Mr Mandalia. Yes?

MR OZDOWSKI: But if we could get the same discretion in terms of when we are amending our claim to admit to rely on any updated evidence as well, or any evidence that has come to light since the original hearing date when we are amending our claim.

HHJ KIRKHAM: Right, so by 14 September claimant send defendant draft amended claim plus any evidence on which the -- any additional evidence on which the claimants wish to rely. Okay. Right, so by 5 October we will have the parties' positions and the evidence in, so when do you want to have the matter heard by the court? In my view, expecting to ask for oral evidence, it would normally be the case under a Part 8 procedure.

MR OZDOWSKI: Well, it would only be ourselves.

HHJ KIRKHAM: Well, Part 8 procedure normally proceeds on the basis of the written evidence, Mr Ozdowski. You have chosen to go for Part 8 …

MR OZDOWSKI: Yes, that's fine, we will rely on …

HHJ KIRKHAM: So are you saying that you don't anticipate wanting to give oral evidence?

MR OZDOWSKI: We'll rely on the papers.

HHJ KIRKHAM: Mr Mandalia?

MR MANDALIA: If that is the way the claimant wishes to conduct the litigation, I have no objections to that but of course I do raise the question that there is an application to strike out matters but that can be heard at the same time.

HHJ KIRKHAM: Well, if the defendant can decide what course of action it wants to take … Alright, well I am not making any ruling at the moment on the question of oral evidence, but I am just trying to understand that so as we can understand what the length of the hearing is going to be. Now, Mr Ozdowski, what is your time estimate?

MR OZDOWSKI: A day?

HHJ KIRKHAM: A day. Mr Mandalia?

MR MANDALIA: I have no objections to that.

HHJ KIRKHAM: Alright. That sounds sensible. Right, so after … The last date that we have got is 5 October, so by when are you going to be ready to come in for a hearing?

MR OZDOWSKI: Just as soon as possible afterwards.

HHJ KIRKHAM: Mr Mandalia?

HHJ KIRKHAM: It may be useful for the claimant to serve a skeleton argument setting out exactly what aspects of its claim they pursue, having seen the defendant's response. Could I perhaps suggest that they file their skeleton argument if possible within seven days of, by the 12 October. The Treasury Solicitor to file skeleton argument in response by the 19^th and then the matter to be listed for substantive hearing and the application to strike out on the first available date after 26 October.

HHJ KIRKHAM: Mr Ozdowski, how does that sound for …

MR OZDOWSKI: I'm sorry, what was that? The defendants by the … what was that, 19^th … ?

MR MANDALIA: Claimant's skeleton argument by the 12^th.

MR OZDOWSKI: Yes, the 12^th

MR MANDALIA: Defendant's skeleton argument by the 19^th October.

MR OZDOWSKI: Yes …

MR MANDALIA: In reply and the matter to be set down for the first date after the 26^th

MR OZDOWSKI: Yes, that sounds fine.

HHJ KIRKHAM: Are you content with that, Mr Ozdowski?

MR OZDOWSKI: Yes.

HHJ KIRKHAM: (Inaudible) forward? Right, okay. Right, now, who is going to be appropriate to try this? What, which court -- are we actually in the county – no, we are not we are in Admin Court now, aren't we? So we're in the High Court, which seems to me to be appropriate given the level of the sums claimed. Is this apt for the Admin Court? I am not quite sure by what route it got here, but here it is at the moment.

MR OZDOWSKI: My understanding was … I am not clear on this, but it was the Admin Court acting as a county court. I am not sure but that's what -- when I rang the court that's what they said, as it's not a judicial review. But I am not quite clear on that, it doesn't make sense to me.

HHJ KIRKHAM: It doesn't make a lot of sense, no. Mr Mandalia …

MR MANDALIA: I am not sure how the matter came before … how the matter came before the Administrative Court. If one looks at the claim form, it is essentially a claim either of negligence, breach of duty or misfeasance in public office. They're normally matters for the county court.

HHJ KIRKHAM: Yes.

MR MANDALIA: (Inaudible).

MR OZDOWSKI: Sorry – and human rights, I think that's the issue that the county court judge, the last county court judge wasn't, didn't feel comfortable dealing with …

HHJ KIRKHAM: Well, what is going to be the most appropriate forum for trying this?

MR MANDALIA: Well, essentially the claimant's claim is one for damages, not for relief in other forms, so I am not sure that the Administrative Court is the appropriate court.

HHJ KIRKHAM: Well, it seems to me that it ought to be a High Court case, not a county court case, given the amount at stake. Do you want it to remain in Birmingham? Do you want it tried elsewhere? It may be that we can offer a quicker service here than would happen if it were transferred round the country …

MR OZDOWSKI: Yes, I mean we have no objection to it being heard here.

HHJ KIRKHAM: Right, so let's make the order, transfer to the High Court, Birmingham District Registry, and then if we do that then it will get listed before an appropriate person to try it. Right, now, apart from costs is there anything else that we need to cover in terms of directions?

MR OZDOWSKI: Can I just ask, just to make clear, is there any date by which the documents need to be filed or is that, is that …

HHJ KIRKHAM: We need to add that in. Now, as claimant, Mr Ozdowski, Birmingham will call on you to prepare a trial bundle. That needs to be done, and so that will need to separate out the categories of documents into a coherent fashion and pages need to be numbered and will need an index, just so that it's workable for the parties and the court, so we have all got the same bundle to work on.

MR OZDOWSKI: Okay, and its three copies of that, may I ask?

HHJ KIRKHAM: One for the court, one for the defendants, one for you, so yes. So if you just file one at court and then send one to the defendants. Now, if we could have that at court … You are going to do your skeleton by 19 October, so … Sorry you're going to do your skeleton by 12 October, defendants by 19 October. It generally helps to have the bundle to prepare the skeleton so that the skeleton argument can cross refer to the page numbers. So really, the bundle needs to be prepared by 12 October, doesn't it? Alright, well, lets just run through the orders then so that everybody is clear as to what the position that we are in. Have you got this, Tom? So the judgment entered on 20 April 2009 will be set aside. Formal service of the proceedings is waived. The claimant shall send the defendant by no later than 4pm on 14 September draft amended claim plus any additional evidence on which the claimants wish to rely …

MR MANDALIA: If I could also ask that the claimants serve a copy of the initial claim form, and particularly (inaudible) wish to see how the claim has developed.

HHJ KIRKHAM: Right, so that can be done straight away, can it, Mr Ozdowski?

MR OZDOWSKI: Well, I mean I'd only need to photocopy it, so it can be done within seven days.

HHJ KIRKHAM: Alright, so lets (inaudible) by 24 August the claimant shall send defendant a copy of the original claim form. Yes, sorry, you were about to say something?

MR OZDOWSKI: No, that's alright.

HHJ KIRKHAM: Right, so, by 28 April, sorry, by 28 August the claimant shall send the defendant a copy of the original claim form, followed by 14 September, send the defendant a draft amended claim – sorry, re-amended claim plus any additional evidence on which the claimants wish to rely, by 28 September defendant shall notify the claimants whether they object to the amendment. Any amended defence plus any evidence on which the defendants wish to rely shall be served by 4 pm in 5 October. Claimant shall prepare a bundle for trial by 12 October.

MR OZDOWSKI: Sorry, can I ask a bit longer because originally the 12 October was just the skeleton argument. If I am preparing a bundle as well I might need a bit more time.

HHJ KIRKHAM: Alright, when would you like to?

MR OZDOWSKI: 14 days, essentially, so the 19^th

HHJ KIRKHAM: Alright, by the 19^th so your skeleton also by the 19^th. So claimant to prepare skeleton by 19 October, defendant skeleton by 26 October and then the matter be set down for hearing first open date after 2 November, time estimate one day. The action be transferred to the High Court, Birmingham District Registry, permission to apply. Right. Yes, Mr Ozdowski?

MR OZDOWSKI: I just wanted to clarify, so the first clear date after the 26^th of the 10^th  of October, is that what you said?

HHJ KIRKHAM: No, I have adjusted the dates. Bundle by 19 October …

MR OZDOWSKI: Yes …

HHJ KIRKHAM: … your skeleton by 19 October, defendant's skeleton by 26 October …

MR OZDOWSKI: Yes …

HHJ KIRKHAM: … and set down for hearing first open date after 2 November.

MR OZDOWSKI: 2 November …

HHJ KIRKHAM: Alright?

MR OZDOWSKI: Yes. Can I also just get the date by which – I mean, we'd like disclosure of the documents that the defendant holds.

HHJ KIRKHAM: Well, you have chosen to go down the Part 8 route which doesn't normally provide for a disclosure mechanism.

MR OZDOWSKI: But there is …

HHJ KIRKHAM: Proper Part 8 proceedings, which says -- this is … you serve your claim, this is the evidence on which you relied, the defendants say this is the evidence on which we rely. And if you want a Part 7 procedure, you go Part 7 …

MR OZDOWSKI: I see.

HHJ KIRKHAM: You have got to decide which way you want to run this, and you have chosen to run this as a Part 8 claim.

MR OZDOWSKI: Yes, well, we're happy to make this a Part 8.

HHJ KIRKHAM: Alright, and permission to apply, so that is that. Now, is there anything else we need to deal with apart from costs?

MR MANDALIA: The only other matter (inaudible) application to strike out proceedings (inaudible) that that be heard or adjourned, it shouldn't be …

HHJ KIRKHAM: So …

MR MANDALIA: (Inaudible) the defendant's application.

HHJ KIRKHAM: Alright, okay, so defendant's application to set aside, what shall I say, adjourn generally permission …

MR MANDALIA: Strike out the proceedings …

HHJ KIRKHAM: Sorry, yes. The defendant's application to strike out -- just adjourn that generally, is that what you are suggesting?

MR MANDALIA: Adjourn to the final hearing.

MR OZDOWSKI: How would that … won't that final hearing decide that in any case? I don't understand how that would work.

HHJ KIRKHAM: Well, when we get to the … when you get to the point where you come before the trial judge, then it will be a matter for the parties and the trial judge as to which order in which everything is run, whether the parties and the judge think that the sensible approach is to go for the strike out application first or deal with the substantive hearing, and that is going to depend an awful lot on all the documents that have been prepared and what the shape of the case is at the time. So, defendant's application strike out the claimant's claim be adjourned to the final hearing okay? Right, apart from costs, anything else from you, Mr Ozdowski?

MR OZDOWSKI: No, that's all fine. I have nothing else, your Honour.

HHJ KIRKHAM: Anything else from you Mr Mandalia?

MR MANDALIA: No.

HHJ KIRKHAM: Alright. So what about costs?

MR MANDALIA: There is an application for the claimant's costs of the application to set aside the judgment (inaudible).

HHJ KIRKHAM: Well, one has been filed.

MR MANDALIA: I think that may be for the entire proceedings given that there's the application to strike out the proceedings too.

HHJ KIRKHAM: I see.

MR MANDALIA: (Inaudible) would like an order that the claimant pay the defendant's costs of the application (inaudible) to be assessed if not agreed.

HHJ KIRKHAM: Mr Ozdowski?

MR OZDOWSKI: We ask that the costs become costs to be decided at the conclusion of the matter. Furthermore, in terms of the schedule of costs that we've seen, we don't, we can't understand the hourly charge out rate of the Treasury Solicitor when … I've got a copy of the rates that they charge, so, you know, if the order is made we'd like to challenge those costs, but I think that the correct manner would be to have it dealt with at the end of the matter. We are litigants in person and at the end of the day we weren't aware that the defendant wasn't served correctly. Judgment was entered under Part 8, which we thought was done correctly. As we mentioned, the defendants didn't mention Section 18. Their application, CPR Rules 13 or the rules they mentioned, weren't the basis on which this decision today was decided. Essentially we weren't aware of the points that the defendant raised today until this hearing, until today, so we feel that … that the fairest way is to have the costs dealt with at the conclusion of the matter, as they would be if the claim had been started correctly I mean, we have incurred our own costs to this point as well.

HHJ KIRKHAM: Well, the normal ruling sequence is that costs are dealt with at each interlocutory stage. It is a new regime, it is a pay as you go regime, and costs are not normally wrapped up to the end, so the starting point is that the court should normally deal with costs as it goes along and this is a classic case where the court would normally deal at this point with the question of who has to bear the costs of this application to set aside the judgment.

MR OZDOWSKI: Yes. Well, can I say that essentially the application, on its face, as I have mentioned previously, dealt with Section 17 and Section 13(1), I think, from memory. That's what we prepared upon. We received counsel's advice on those points, we spent money, incurred costs on those issues. While the decision has been to set aside judgment, we believe essentially that that wasn't … the defendant didn't essentially play much of a part in having that judgment set aside, and in any case I mean …

HHJ KIRKHAM: Sorry, I didn't follow that. The defendant didn't play much of a part in …

MR OZDOWSKI: Well, in terms of their application, that they made, which they had five months to prepare, didn't refer to the sections on which the judgment was eventually set aside, so we believe that that either no order as to costs should be made, each party bear their own costs of this application, or that they become costs to the matter as a whole.

HHJ KIRKHAM: Thank you. Mr Mandalia, do you want to come back on this?

HHJ KIRKHAM: Of course, the starting point is costs follow the event. The defendant has succeeded entirely upon the application in relation to the setting aside of the judgment. There can be no doubt that the basis of the defendant's application was that it had never been served with the claim form, that is quite apparent from the first sentence of the application made with (inaudible) brief supporting statement of Nigel Fisher at paragraph 3 saying, it makes it clear he hasn't seen the original claim form and that the amended claim form wasn't received until 23 April 2009. The defendant had gone to considerable expense, not only having to make the application, but of course in its dealings with the Leicester County Court to try and put that deficiency right, which is why we have ended up here today having to make the application and succeeded entirely in relation to it.

HHJ KIRKHAM: Alright, well thank you both very much, that is helpful.

HHJ KIRKHAM: The question has arisen as to what the position should be with respect to costs on this application to set aside the judgment. The defendant has succeeded in having judgment set aside on the basis that the claim form was never properly served.

The starting point for the court is generally that costs should follow the event and the defendant has been successful, so the starting point would generally be that the claimant should pay the defendant's costs. The claimants object, saying that the defendant has not until today made it clear that it relies on Section 18 of the Crown Proceedings Act in support of its application to have judgment set aside. It seems to me that that is something of a technical argument. The defendant made clear in its application that it was applying for judgment to be set aside on the ground that the proceedings had not been properly served, and the evidence in support of that application made clear that that was the basis on which the application was being made. That was the basis on which the application was made this morning, and that application has succeeded.

So the appropriate order here is that the claimant should pay the defendant's costs of and occasioned by the application to set aside the judgment. I do not have a costs statement which covers just that aspect of it, so the order, I think, will have to be that those costs should be subject to detailed assessment if not agreed.

HHJ KIRKHAM: Alright. Anything else? Now, is there anything else at all you want to raise on your side, Mr Ozdowski?

MR OZDOWSKI: No. Do we get a copy of your judgment?

HHJ KIRKHAM: Yes, yes. Mr Painter who is sitting here patiently bashing the keys will prepare the judgment, I will check it to make sure its what we have all just discussed and it will be sealed and sent out to both sides.

MR OZDOWSKI: Okay. Thank you.

HHJ KIRKHAM: Mr Ozdowski, you said that you were not a litigation solicitor so let me just point out to you that if you consider that there are grounds on which you can appeal against any of the decisions I have made this morning then now is the time to ask me for permission, because the rule is that this: that the court making the decisions is the gatekeeper to the Court of Appeal.

MR OZDOWSKI: Can I decide at a later time whether I … I mean, I need to …

HHJ KIRKHAM: No, the court will say that the application for permission has got to be made at the hearing at which the orders are made.

MR OZDOWSKI: Well, if I could apply for permission to appeal as well …

HHJ KIRKHAM: On what ground?

MR OZDOWSKI: … on that basis, on the grounds that, that the grounds of our original application that the defendant's application didn't refer to any of those points, the decision was a Part 8 decision, Judge Whitehurst was entitled to make the decision he made, and that the correct procedure by the defendants should have been to appeal the decision as opposed to bringing an application to strike it out.

HHJ KIRKHAM: Mr Ozdowski, that last point was not a point which you raised at all before me this morning.

MR OZDOWSKI: It was in my written submissions. I am sorry … it was in the letter that I sent in this morning, so it was mentioned, only not -- I didn't mention it during the decision but during the discussion … the hearing, but it was definitely in my further submissions that I submitted to the court.

HHJ KIRKHAM: Do you want to make any observation, Mr Mandalia?

MR MANDALIA: The defendant simply can't appeal a decision that it doesn't know about. It can't appeal (inaudible) that it doesn't know about.

HHJ KIRKHAM: Mr Ozdowski, I am going to refuse your application for permission to appeal and I do so on the ground that there is no real prospect of success and there is no other basis on which it seems to me that permission should be accorded. Alright? Okay, well, thank you all very much for your help.

MR OZDOWSKI: Thank you, your Honour.

HHJ KIRKHAM: Thank you. Thank you very much.