Mr Justice Patten :
Introduction
Last July I was nominated by the Vice Chancellor with effect from 1st October 2001 to take over from Neuberger J the hearing of applications by Mr. Ebert under Section 42 of the Supreme Court Act 1981 (“the 1981 Act”) for leave to institute or continue civil proceedings. A civil proceedings order was made against Mr. Ebert by the Divisional Court (Laws LJ and Silber J) on 7th July 2000. On 21st September 2001 H.M. Attorney General applied to the Divisional Court for and obtained an injunction against Mr. Ebert restraining him from entering the Royal Courts of Justice except with the prior permission of the Court. The order further provides that any application for permission to enter the Royal Courts of Justice or for permission under s.42(3) of the 1981 Act must be made in writing under cover of a letter addressed to the Court Manager of the Bankruptcy and Companies Court and is to be determined either in writing or after oral argument as directed by the Court.
As of 31st July 2001 there was one pending application by Mr. Ebert dated 16th July 2001 for permission to apply for an order seeking the annulment of the bankruptcy order made against him on 22nd July 1997. Since then he has made three further applications for permission to make various other applications relating to his bankruptcy; they are:
i) 20th August 2001: for permission to apply to set aside an order of Jacob J made on 26th July 2000;
ii) 17th September 2001: for permission to apply to strike out the bankruptcy petition as an abuse of process and as a nullity; and
iii) 18th October 2001: for permission to apply for an order against the petitioning creditor in his bankruptcy, Mr. Ralph Wolff, for production of documentary evidence of the debt upon which the petition was based.
It was also brought to my attention that Mr. Ebert had a number of outstanding applications for permission in the Queen’s Bench Division and the Administrative Court. They are:
i) an application for permission to apply to set aside an order of Smith J made on 21st March 2000;
ii) CO/4506/1998: an application for permission to seek disclosure orders in the s.42 proceedings against H.M. Attorney General, Laws LJ and Silber J in relation to various matters referred to in the judgment of the Divisional Court dated 7th July 2000;
iii) CO/1713/2001: an application by letter dated 16th October 2001 for the production by the Court Service of various records relating to action 1995 M. No.156;
iv) CO/2781/2001: an application for permission to seek a disclosure order against the Official Receiver in respect of the contents of his Report to Creditors;
v) CO/3453/2001: an application for permission to seek judicial review of the refusal of Haringey Magistrates Court to issue summonses against Ralph Wolff and Miss J.Y. Venvil, the trustee in bankruptcy, alleging various counts of forgery and deception: and
vi) CO/3515/2001: an application for permission to seek judicial review of the refusal of Bow Street Magistrates Court to issue summonses against Midland Bank plc and Mr. Jacob Rabinowicz, a solicitor, alleging deception and perjury.
With the approval of the President of the Administrative Court (Scott Baker J) I have been asked to deal in the first instance with all Administrative Court applications by Mr. Ebert and to this end the five applications I have just mentioned were transferred to me. I also received an application by Mr. Ebert to discharge the injunction granted on 21st September 2001 but I have referred that application back to the Divisional Court and it does not fall to be considered in this judgment.
On 16th October 2001 there was a hearing which Mr. Ebert attended at which I gave directions in respect of the various applications I have just outlined. They were then listed for hearing before me on 1st November. I decided to direct an oral hearing in order to allow Mr. Ebert to explain and expand upon his written applications and to ensure that as a judge coming new to this litigation I should be fully conversant with his arguments before making any decision on their merits. The hearing took up the whole of 1st November and part of Monday 5th November. I then reserved judgment.
Both at the hearing on 16th October and again on 1st November I attempted to explain to Mr. Ebert that I had no jurisdiction to grant him the permission sought unless he could satisfy me that in the words of s.42(3) “the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or applications”. This requires me at least to be satisfied that the arguments canvassed in support of the various applications constitute new material which has not previously been considered and ruled upon by another judge of the High Court or other appropriate tribunal and that they provide reasonable grounds for bringing the relevant application. As I shall explain later in this judgment he has signally failed to do that.
The background to the applications
A bankruptcy order was made against Mr. Ebert by Lloyd J on 22nd July 1997. The history and background to this order is fully set out in the judgment of Laws LJ of 7th July 2000 but in order to make sense of the various applications which I have to consider a number of key facts need to be stated.
Mr. Ebert and Mr. Morris Wolff were directors and shareholders of a company called Europride Limited which carried out property development financed by loans from Bank Leumi and Midland Bank plc.
As part of the security arrangements for the loans Mr. Ebert and Morris Wolff gave joint and several personal guarantees to Midland Bank limited in each case to £100,000 plus interest. The guarantees provided that the release of one guarantor would not affect the liability of the other.
In October 1992 Midland Bank demanded repayment under the guarantees. This was followed by the issue of proceedings. On 25th January 1995 a writ endorsed with a statement of claim was issued and then served on Mr. Ebert. This was action 1995 M. No.156. Mr. Ebert was the only defendant named in the writ. The statement of claim pleaded the guarantee and demand and gave credit for the sale proceeds of various properties secured to the bank. It sought payment of the sum of £56,119.47 including interest up to the issue of the writ. A separate action was commenced against Morris Wolff ( 1995 M. No.906). Mr. Ebert was not a defendant to these proceedings.
On 6th July 1995 Midland Bank obtained judgment in both actions from Deputy Master Cooper. The amount of each judgment was £55,894.70 inclusive of £11,071.25 interest. In the case of both defendants the judgment was obtained on a summary basis under RSC.O.14. Both Mr. Ebert and Mr. Wolff were represented by Counsel. In action 1995 M. No.156 Mr. Ebert remained the sole defendant but by the date of the judgment Morris Wolff had been joined as a third party in these proceedings. This is evident from the change in the title to the action. I have not seen the third party proceedings but I understand that they sought a contribution from Morris Wolff as a co-guarantor. In any event the judgment of 6th June 1995 in 1995 M. No.156 was against the defendant (Mr. Ebert) alone.
Mr. Ebert appealed against the Master’s order and the appeal was heard by HH Judge Bentley Q.C. (sitting as a judge of the High Court) on 7th July 1995. He dismissed the appeal but gave leave to the bank to amend the statement of claim and the O.14 summons so as to reduce the claim and the judgment to £54,374.78. Subsequently on 4th February 2000 the cause book was amended to show the revised figure of £54,374.78.
In order to save Morris Wolff from bankruptcy his brother Ralph entered into an arrangement with Midland Bank under which the bank assigned to him the judgment it had obtained against Mr. Ebert in return for a consideration of £64,886.19. This money was paid to Midland Bank in December 1995 and January 1996 and on 16th January 1996 the bank released Morris Wolff from liability under his guarantee. On 22nd January 1996 the benefit of the judgment debt against Mr. Ebert which had been obtained on 6th June 1995 was assigned by Midland Bank to Ralph Wolff.
A copy of the assignment was produced by Mr. Ebert as part of the evidence in support of his applications to me. The recitals in the deed refer to a judgment dated 6th June 1995 in action 1994 M. No.1568 between the bank as plaintiff, Mr. Ebert as defendant and Morris Wolff as third party. The amount of the judgment debt is given as £55,894.70 plus costs. As was pointed out by Laws LJ in his judgment the action number is incorrect and the judgment debt recorded is the figure ordered by the Master unrevised following the appeal. The action 1994 M. No.1568 is an obvious error. Those proceedings involve different and unrelated parties (Meat & Livestock Commission v Deaconvale Limited). But the error has been relied upon by Mr. Ebert in support of his allegations that the assignment was therefore invalid. I shall return to this later in this judgment but it is right to observe at the outset that both Neuberger J, the Divisional Court and the Court of Appeal have rejected this argument and the latter two decisions are of course binding upon me.
My principal reason for referring to the 1995 judgment and the assignment at this stage is in order to identify the documents. Although Mr. Ebert continues to dispute the validity and effectiveness of the judgment and the assignment it is clear that he is fully aware of the documents in question. Both have been produced by him as part of these applications.
On 6th March 1996 Ralph Wolff (through his solicitors Messrs. Teacher Stern Selby) served a statutory demand on Mr. Ebert. It referred to the judgment of 6th June 1995 (again incorrectly referred to as obtained in action 1994 M. No.1568) in the sum of £55,894.70 and to the assignment of 22nd January 1996. After giving credit for a payment to the bank of £8000 and adding interest on the judgment sum it made demand in the sum of £50,476.89. Mr. Ebert applied to set it aside. He was again represented by solicitors and counsel. In his affirmation dated 12th April 1996 in support of that application Mr. Ebert had no difficulty in identifying the intended subject matter of the assignment as the judgment against him in 1995 M. No.156. He also explained that third party proceedings against Morris Wolff for a contribution were not proceeded with. His two main grounds for seeking to set aside the demand were (a) that he had a right of set-off based on the fact that the Midland Bank had sold property charged to it by Europride Limited at an undervalue and (b) that he had a right of contribution against Morris Wolff for half of the judgment debt. No technical points were taken about the form of the assignment.
On 24th July 1996 Mr. Registrar Scott set aside the statutory demand. He rejected the argument based on sales at an alleged undervalue but accepted a submission that the assignment was invalid as contrary to public policy on the principles set out in Camdex International Limited v Bank of Zambia (1996) 3AER 431 on the basis that it was designed not for any commercial purpose but only in order to bankrupt Mr. Ebert. He also considered that Mr. Ebert had raised a triable issue in relation to an allegation that he had offered to purchase two properties charged to the bank for a sum which would have discharged his liabilities.
Following the order of Mr. Registrar Scott Mr. Ralph Wolff took further steps to obtain execution of the judgment assigned to him by Midland Bank on 22nd January 1996. He issued before the Court in Bankruptcy an application for a garnishee order nisi in respect of a sum of £40,000 said to be standing to the credit of Mr. Ebert with Bank Leumi (UK) plc. This application was supported by an affidavit of Ms Jessica Weisfogel of Teacher Stern Selby dated 24th July 1996 which again refers to the judgment debt in action 1994 M. No.1568. It is apparent from the court file that the Registrar refused to accept this application and the solicitors were told to make the application to the Queen’s Bench Division. This they did in the wrong action 1995 M. No.906 to which Mr. Ebert was not a party. It was supported by an affidavit of Ms Weisfogel dated 5th September 1996 which like her earlier affidavit refers to the action 1994 M. No.1568 rather than to 1995 M. No.156. The garnishee order was made on 10th September 1996.
Mr. Ebert applied to Neuberger J for permission to seek the discharge of this order and was granted it. He then applied to Master Eyre who set aside the garnishee order on the ground that Mr. Ebert had never been a party to action 1995 M. No.906. But he refused to give Mr. Ebert damages for the “unlawful conduct” of Ralph Wolff and his solicitors. Mr. Ebert sought permission from Neuberger J to appeal against this and this was refused on 21st December 1999. I mention these garnishee proceedings only because they have an aftermath which is relevant to one of the Crown Office applications (CO/3453/01) which I have to consider. Although Master Eyre discharged the garnishee order in 1999 his order was not drawn up at that time. Instead on 12th September 2001 Mr. Ebert applied to Master Eyre for his earlier order to be sealed out of time which it was on that date. This order was then presented by Mr. Ebert to Burton J on 16th October 2001 as showing (and I quote from his judgment) “that, for the first time, perhaps, he has some support for a case that the judgment upon which his bankruptcy is founded is not a valid judgment”. For this reason Burton J transferred this application to me for further consideration. I shall come back to this point later in this judgment but I am bound to record that I have the gravest doubt as to whether the full circumstances leading up to the order of 12th September 2001 were properly explained to Burton J.
On 5th November 1996 Rimer J allowed Ralph Wolff’s appeal against the order of Mr. Registrar Scott. This was followed on 22nd November 1996 by the presentation of the bankruptcy petition. The petition refers to a debt of £50,476.89 which was the sum in the statutory demand. In the petition this calculation is explained by reference again to the judgment for £55,894.70 in action 1994 M. No.1568 less credit for the payment of £8000 but with the addition of interest since judgment. By now Mr. Ebert was acting in person and he opposed a bankruptcy order on the same grounds and on the same evidence he had relied upon before Mr. Registrar Scott. In particular he alleged that the consideration of £64,886.19 referred to in the assignment had not been paid. This point had been decided against him by Rimer J and was dealt with again at length by Neuberger J on 10th December 1997.
On 22nd July 1997 Lloyd J made the bankruptcy order. At the hearing Mr. Ebert made a number of points about the validity of the assignment. He said that Mr. Wolff had failed to produce the power of attorney under which Irene Jacobs executed the assignment on his behalf. He also contended that it was not in terms an absolute assignment. In addition he repeated his arguments about the payment of the consideration. Lloyd J held that all these points were concluded against Mr. Ebert by the judgment of Rimer J. He therefore made the bankruptcy order.
There was no appeal against the bankruptcy order. Instead Mr. Ebert applied at once to have it annulled. This application was based on a submission for the first time that the assignment recited action 1994 M. No.1568 and was therefore invalid. Neuberger J dismissed this application on 28th August 1997.
Mr. Ebert then applied to commit Mr. Rabinowicz, Mr. Ralph Wolff’s solicitor, on the ground that he had perjured himself and misled the court by affirming in an affidavit the contents of the bankruptcy petition including the incorrect reference to action 1994 M. No.1568 and the fact that £64,886.19 had been paid in consideration of the assignment of the judgment debt in action 1995 M. No.156. This application was dismissed by Laddie J on 18th September 1997 on a number of grounds. The learned judge made it expressly clear in his judgment that the allegations of perjury and deception were unfounded and should never have been made.
Mr. Ebert then made further applications for the annulment of the bankruptcy order. By now he was subject to a Grepe v Loam order made by Laddie J on 18th September 1997. These applications came before Neuberger J on 10th December 1997. The learned judge had already made an order against Ralph Wolff for the disclosure of documents relating to the assignment. Two main arguments were canvassed at the hearing. The first was that Mr. Ebert had some prospect of paying the petition debt. This was dismissed by Neuberger J on the ground that there was no evidence or argument to support it. The second argument concerned the assignment. Mr. Ebert contended that the debt owed to Midland Bank by Morris Wolff had been paid off by him and that any monies paid to the bank by Ralph Wolff were paid on behalf of his brother and were not therefore effective to allow Ralph Wolff to take the benefit of the judgment debt by assignment. In effect it had been paid off by Morris Wolff. After examining the evidence of payment which was disclosed Neuberger J was satisfied that Ralph Wolff had paid the consideration recorded in the assignment to Midland Bank and that the assignment was effective to transfer to him the benefit of the judgment against Mr. Ebert unaffected by the discharge of his brother’s liability. The application to annul the bankruptcy order was therefore dismissed.
On 25th March 1998 the Court of Appeal (Potter and Mummery LJJ) heard and dismissed an application by Mr. Ebert for permission to appeal against Neuberger J’s order of 10th December 1997. In the course of his judgment Potter LJ dealt with two other points which were raised by Mr. Ebert at the hearing. These were the inclusion in the assignment of the reference to action 1994 M. No.1568 and the failure of the assignment or the bankruptcy petition to record the reduction in the judgment debt from £55,894.70 to £54,374.48. The Court of Appeal held that neither of these points invalidated either the assignment or the bankruptcy order. On these two points Potter LJ said this:
“By way of preliminary, I should make it clear that the assignment itself referred to neither action 1995-M-No. 156 nor 1995-M-No. 906, under which the Midland Bank obtained judgments against Morris Wolff, but, no doubt by a clerical or administrative error, to an action 1994-M-No.1568, which is accepted in affidavit evidence on behalf of Mr. Ralph Wolff to be an action not immediately concerned with the matters presently under review. That, it seems to me, is not in itself a point of significance, in the sense that the assignment clearly refers to a judgment dated 6th June 1995 and to the face value of the judgment debt obtained under both the judgments to which I have referred. It does not seem to me that the erroneous reference to the number of action(s) whereby the debt was recovered would be sufficient to prevent the assignment of the judgment debt taking place or to render such assignment invalid.
However, it appears from correspondence which the applicant has had with the court service that, in relation to judgment 1995-M-No. 156, which was the judgment to which Mr. Justice Neuberger was referred when the matter was before him, the amount of the judgment stated was later the subject of an appeal by the applicant. When faced with the appeal, it appears that the Bank sought to amend its statement of claim, and, when the matter came before the judge in chambers, leave was given to amend the statement of claim to show a sum due in the slightly smaller amount of £54,374.48, following which the appeal was dismissed. Liberty was given to amend the summons seeking final judgments. However, it appears that the judgment was not reduced in amount. If further appears (although I think that nothing turns on this and it is no more than a technicality) that the judgment was entered in the cause book as an order and was not otherwise perfected. That being so, the applicant takes the point, not only that the judge was misled, but that the bankruptcy was dealt with on the basis of a sum excessive by the difference between the two judgment sums.
I do not think that that fact alone is any basis upon with the order for bankruptcy should be set aside. There is no doubt that at the same time as the particular judgment No. 156 was reduced to £54,374.48 there was also extant a judgment regularly entered in action No. 906 for the somewhat greater sum of £55,894.70, pursuant to which the demand and subsequently proceedings could equally have been made. But, whether or not that was so, it seems clear to me that if, at any given stage, notice of the discrepancy had been brought to the attention of the judge, he would simply have treated is an an irregularity, so that the matter would have proceeded nonetheless on the basis of the amount of the judgment debt truly outstanding. This particular point, belatedly taken, is no basis on which at this late stage to reverse the order for bankruptcy originally made.”
This judgment is of course binding on me;
Since then Mr. Ebert has made numerous further applications (more than 200) to set aside the bankruptcy order made against him or for associated relief. Many of these are referred to in the judgment of the Divisional Court of 7th July 2000. All of them have been dismissed. The hearing held on 1st and 5th November 2001 was designed to allow Mr. Ebert to put before me any new arguments or material not so far considered which might justify the grant of permission to make yet a further application. I now turn to the applications he has made.
The applications
I shall deal with these in the order in which they were argued by Mr. Ebert:
18.10.2001: Proof of debt application
Permission is sought to bring an application against Mr. Wolff and Mr. Rabinowicz for production of the documentary evidence necessary to establish the debt referred to in the bankruptcy petition of 22nd November 1996. This is the debt of £50,476.89 to which I have already referred. The grounds of the application are that Mr. Ebert has never received evidence of the petition debt.
This application is not based on any new material and has already been dealt with on a number of occasions. The short and obvious answer to it is that Mr. Ebert already has the relevant documentation in the form of the judgment obtained against him on 6th June 1995 in action 1995 M. No.156. He also has the assignment of 22nd January 1996 referred to in the petition which has been upheld by a decision of the Court of Appeal despite the incorrect reference to action 1994 M. No.1568.
If what Mr. Ebert is seeking is proof of the state of account between Midland Bank and Europride Limited as at the date of the judgment then there are a number of reasons for refusing his application. That judgment was obtained in 1995 on the basis of the affidavit evidence sworn in support of the O.14 application. That was the time for Mr. Ebert to investigate or challenge the state of the account. The appeal to H.H. Judge Bentley Q.C. was unsuccessful and no further attempt was made to appeal or to set aside that judgment. Similarly in the application to set aside the statutory demand and on the subsequent hearing of the bankruptcy petition no challenge was made to the amount of the judgment debt.
In December 2000 Neuberger J refused permission to Mr. Ebert under the Grepe v Loam orders to apply for proof of the judgment debt on much the same grounds. On 5th June 2001 he dismissed a further application by Mr. Ebert for permission to bring proceedings against HSBC plc (formerly Midland Bank plc). The bank had in fact written to Mr. Ebert enclosing a number of bank statements which showed to the judge’s satisfaction that Europride owed a substantial sum to Midland Bank and that the judgment obtained against Mr. Ebert in June 1995 was justified. In paragraph 10 of his judgment Neuberger J also said this:
“………it would require quite exceptional facts before Mr. Ebert would stand an even arguable prospect of establishing that the judgment obtained against him should be set aside and/or the alleged assignment by HSBC to Mr. Ralph Wolff should be reconsidered. I cannot say that in no conceivable circumstances whatever could Mr. Ebert persuade a court that it would be right to let him reopen those issues, but, so far as it is possible to do so, I would like to make it clear to him that, only if he is able to come up with facts which satisfy three requirements can there be any hope of his persuading the court to reconsider its past decisions. First, the facts must be new facts, in the sense that they have never been presented to the court before. Secondly, they must be facts which Mr. Ebert could not reasonable have come up with on any previous application or at any previous hearing. Thirdly, they must be facts which establish a real prospect of Mr. Ebert showing that HSBC should not have obtained judgment against him and/or the assignment between HSBC and Mr. Ralph Wolff was not as it purported to be, and that, as a result, the basis on which he was made bankrupt by Mr. Ralph Wolff cannot stand. For Mr. Ebert to rely upon facts which have already been put before the court, or upon facts which he could reasonably have discovered earlier, or upon facts which, on analysis, do not take matters much further, is simply a waste of time and effort on his part, and, in so far as third parties are involved, a waste of their time and effort. It is also a waste of the court’s time, in that other cases which deserve to be heard are unjustifiably delayed.”
Mr. Ebert has not even attempted to comply with that guidance. This application is simply a repetition of that made to Neuberger J. Permission is refused.
CO/1713/2001: letter to the Administrative Court dated 16th October 2001.
This is not in terms a formal application but Mr. Ebert invited me to treat it as one. He seeks an order or direction from me to the Court Service that they provide him with copies of the record in the cause book relating to action 1995 M. No.156 of the registration of the assignment, the judgment of 6th June 1995, the registration of the change of party from Midland Bank to Ralph Wolff as judgment creditor and any order for the change of party under CPR Part 19.
I decline either to make any such direction or to give Mr. Ebert permission to apply for one. He already has copies of the judgment and the assignment whose validity he has unsuccessfully attacked on a number of occasions. So far as I am aware the assignment of the judgment debt was not registered in the cause book nor was any order made under CPR Part 19. But whether or not that is correct my principal ground for refusing permission is that the production of the records sought would achieve no useful or proper purpose. Mr. Ebert submitted to me that he needed the information in order to argue that the bankruptcy order should be set aside because Ralph Wolff was not a party to the action and therefore not the judgment creditor. According to Mr. Ebert he could not become a judgment creditor until he was established as the proprietor of the assignment by an order made under CPR Part 19.4. This point is misconceived. The only relevant question is whether Ralph Wolff was a creditor within the meaning of s.264 of the Insolvency Act 1986 so as to be able to present a petition for a bankruptcy order. That depended not on whether he had been substituted as a party in action 1995 M. No.156 but rather on the validity of the 1996 assignment. CPR Part 19 has nothing to do with it. I refuse the application.
CO/2781/01: application for disclosure of the evidence on which the judgment debt was obtained.
This application for permission relates in terms to the Official Receiver’s Report to Creditors. This records a deficiency in the bankruptcy of over £800,000. But the material whose disclosure is sought is precisely the same as that covered by the two previous applications. I dismiss it for the same reasons.
Case No. 11216/1996: application dated 16th July 2001 for permission to apply to annul the bankruptcy order.
This was the principal application made to me by Mr. Ebert. It is based on a statement of truth by Mr. Ebert which alleges in terms that the Court did not have jurisdiction to make the bankruptcy order. The grounds of the application are:
(1) that the bankruptcy petition was a forged instrument because it gave an incorrect address for Ralph Wolff; was based in terms on a judgment against Mr. Ebert in action 1994 M. No.1568 which did not exist; stated that Mr. Ebert was unable to pay the debt which was untrue; and stated that the petitioner held no security for the debt which was incorrect in the light of the garnishee order made on 10th September 1996;
(2) that the affidavit sworn in support of the petition was untrue and amounted to perjury by Mr. Rabinowicz, the deponent. He is alleged by Mr. Ebert to have been fully aware that the statements in the petition were untrue;
(3) that Ralph Wolff, Mr. Rabinowicz, Midland Bank plc, the Official Receiver and Miss Venvil, the trustee in bankruptcy, are guilty of conspiracy to defraud and extortion because Mr. Ebert was not liable to pay the judgment debt in full. The assignment of the judgment debt to Ralph Wolff was also void under s.127 of the Insolvency Act;
(4) that Miss Venvil was appointed to enforce a fraudulent claim and debt and had no legal right to pursue such claims;
(5) that the Official Receiver’s Report to Creditors referring to the judgment debt was untrue and a misrepresentation;
(6) that Mr. Ebert has never received any supporting evidence of the judgment debt;
(7) that there are matters to be investigated in connection with the bankruptcy proceedings. In any event s.271 of the Insolvency Act was not satisfied because no debt existed, Mr. Ebert could pay the debt and the petitioner had security; and
(8) that the Court was misled in order to cover up a fraud involving Europride Limited. “To achieve this goal the conspirators had to approach and employ Mr. Justice Neuberger to assist the cover up of the fraud, by abusing his position of power and no reasonable judge or person could have come to the conclusions and statements made by Mr. Justice Neuberger in the last 4 years”.
As part of this application I was taken by Mr. Ebert through the pleadings in action 1995 M. No.156, the bank statements, the assignment and the bankruptcy proceedings. Mr. Ebert repeated to me his now familiar submission about the references in the assignment and the petition to action 1994 M. No.1568 and to the discharge by Master Eyre of the garnishee order of 10th September 1996. He also submitted that there was no evidence that Ralph Wolff had paid the consideration for the assignment or that the judgment debt correctly stated the position as between Europride Limited and Midland Bank. On the day after the hearing I received further written submissions from Mr. Ebert by fax which include a reference to a letter from HSBC plc dated 24th April 2001 in which the bank stated that as a result of the transfer of funds made in connection with the assignment the Europride debt position was brought to a nil balance. Mr. Ebert relies upon this as showing that the debt in respect of which he had given a guarantee was in fact repaid and that the judgment debt could not therefore have been validly assigned to Ralph Wolff. None of these points differs in any way from the arguments which have been advanced to and rejected by various judges of the Chancery Division and by the Court of Appeal in the applications referred to earlier in this judgment. I can deal with each of the grounds relied upon very shortly;
(1) Forgery: the point about the wrong address is at most an immaterial error. The reference in the petition to the judgment being in action 1994 M. No.1568 has been considered on a number of occasions before and was not sufficient to invalidate the bankruptcy order. Mr. Ebert has produced no evidence that he could have paid the judgment debt and the plain fact is that he made no attempt to do so. He is also hopelessly insolvent. His application to Neuberger J on 10th December 1997 was dismissed because he could produce no evidence of his ability to pay. The allegation about Ralph Wolff having security is also misconceived. The garnishee order of 10th September 1996 was unenforceable because it was made in the wrong action. It was later set aside;
(2) Perjury: this is precisely the same allegation which was made in the committal application heard by Laddie J on 18th September 1997. The repetition of the allegation against Mr. Rabinowicz of knowing deception is unsupported by any evidence. In the light of Laddie J’s judgment this is a particularly disgraceful allegation to repeat and is a clear abuse;
(3) Conspiracy and extortion: there is no evidence to support these allegations nor are they particularised. If what Mr. Ebert is alleging is that he had a right of contribution against Morris Wolff then that could and should have been pursued at the time of the judgment and the bankruptcy proceedings. But it would not have extinguished his liability to the bank;
(4) Section 127 of the Insolvency Act 1986: this section concerns dispositions of the property of a company in liquidation. The judgment debt assigned to Ralph Wolff was not the property of Europride Limited;
(5) Unlawful conduct by Miss Venvil: this allegation depends upon Mr. Ebert demonstrating that Ralph Wolff’s claim and petition was itself fraudulent. He has not succeeded in doing so;
(6) Misrepresentation by the Official Receiver: this is essentially the same point as in CO/2718/01. It is an attempt to re-open the issue of the debt owed by Europride Limited to Midland Bank. I have already referred to the letter from HSBC dated 24th April 2001 relied upon by Mr. Ebert in his additional submissions. The fact that the bank chose to treat the monies paid for the assignment as extinguishing the indebtedness of Europride was dealt with by Neuberger J as recently as 5th June 2001. In that judgment he said this:
“12. The bank statements produced by HSBC are helpfully summarised in a letter from HSBC to Mr. Ebert of 23rd April 2001 (page 15 of the bundle). Those bank statements give me comfort, in the sense that I had already indicated to Mr. Ebert that the apparent difference between the judgment debt and the £43,000-odd shown on a bank statement previously relied on by Mr. Ebert, is attributable to interest, costs and charges. All the recent correspondence and statements now relied on by Mr. Ebert show, is that, at least so far as HSBC’s records are concerned, Europride did owe a substantial sum to HSBC, and that, therefore, the judgment obtained against Mr. Ebert by HSBC in June 1995 was indeed justified. So far as the arrangement between HSBC and Mr. Ralph Wolff is concerned, Mr. Ebert, as I understand it, relies on the fact that the payment made by Mr. Ralph Wolff to HSBC was treated as effectively clearing the debt owed to it by Europride/Mr. Ebert (and Mr. Morris Wolff). He suggests, that this in some ways calls into question the fact that the payment made by Mr. Ralph Wolff was for the purpose of taking an assignment of HSBC’s judgment debt against Mr. Ebert: rather, he suggests, the payment by Mr. Ralph Wolff was for the purpose of paying off the amount owed by Mr. Ebert and Mr. Morris Wolff under their guarantee and under the subsequent judgment debt, and hence that the alleged “assignment” of the judgment debt by HSBC to Mr. Ralph Wolff was a sham.
13. There are two answers to that argument. The first and most important is that it is wrong; the second is that, even if right, it does not get Mr. Ebert very far, and in particular does not assist him in his ultimate aim, namely setting aside his bankruptcy.
14. Mr. Ebert’s argument is wrong, because the proper characterisation of the arrangement between HSBC and Mr. Ralph Wolff depends on the documents and statements that passed between them, and not on what they happen to have recorded in their own internal documentation. As already mentioned, I have not merely considered the documents which Mr. Ralph Wolff has chosen to put before the court on the question of the genuineness of the assignment by HSBC to him: I have determined the validity of the assignment after considering documents he has produced pursuant to an order for disclosure against him. I held that there was a genuine assignment, unattractive, and indeed somewhat artificial though one might think the arrangement to have been. More importantly, the Court of Appeal have dismissed Mr. Ebert’s attempts (I believe there have been more than one such attempt) to challenge this conclusion.
15. Quite apart from this, I see nothing in HSBC’s records, as relied on by Mr. Ebert and exhibited to his present application, which could begin to call this conclusion into question. The fact that HSBC chose to treat the payment for the assignment of the Ebert judgment debt as a sum which substantially cleared the relevant account, does not begin to call into question the fact that the arrangement between HSBC and Mr. Ralph Wolff involved a genuine assignment of the debt. So far as HSBC was concerned, payment received from Mr. Ralph Wolff was, in commercial terms, sensibly to be set off against the amount owed by Europride/Mr. Ebert.”
The allegation of misrepresentation against the Official Receiver is therefore without substance. In any event the subsequent conduct of the Official Receiver cannot be relied upon as grounds for the annulment of the bankruptcy order;
(7) No evidence of the judgment debt: I reject this argument for the same reasons that I refused Mr. Ebert permission to seek proof of the judgment debt;
(8) Matters requiring investigation: these are not spelt out with any great clarity in the application but reference is made to a letter from the Insolvency Service dated 10th January 2001 and a letter to Miss Venvil dated 28th June 2001 from Harris Lipman, a firm of accountants who were instructed by Mr. Ebert. The letter from the Insolvency Service apologises for certain technical deficiencies relating to the meeting of creditors at which Miss Venvil was appointed. These were considered by Neuberger J in a judgment of 18th December 2000 in which he held that she had nonetheless been validly appointed. There is no further need to investigate these matters. They have been investigated. In any event they are irrelevant to the making of the bankruptcy order. The letter from Harris Lipman contains no new facts and is yet another attempt to investigate the circumstances surrounding the assignment and the payment to Midland Bank which have already been considered and ruled upon by Rimer and Neuberger JJ;
(9) Conspiracy to defraud: this is an allegation of fraud made against a serving judge with no evidence at all to support it. Although patently absurd it is nonetheless a scurrilous allegation deserving of condemnation. In my judgment it is sufficient in itself to justify a refusal of permission.
None of the matters relied upon by Mr. Ebert in this application are either new or provide any basis for a tenable claim. The allegations made against Mr. Rabinowicz and Neuberger J merely serve to emphasise its obviously abusive and vexatious nature. I dismiss it.
1995 M. No.906: application for permission to apply to set aside the order of Smith J of 21st March 2000:
Smith J dismissed Mr. Ebert’s application for an order that Ralph Wolff and Teacher Stern Selby should produce affidavits and other documents to show how Mr. Wolff became the judgment creditor in action 1995 M. No.906 for purposes of being able to obtain the garnishee order. The short answer to this question is that Mr. Wolff’s solicitors, as I have already explained, made the application for the garnishee order in the wrong action.
Smith J dismissed Mr. Ebert’s application. Mr. Ebert wishes to set that order aside not for any reason connected with Smith J’s decision but simply because her order, made as it is in action 1995 M. No.906, perpetuates the reference in the title to Mr. Ralph Wolff being the judgment creditor in that action and to Mr. Ebert as the judgment debtor.
This would be a complete waste of the Court’s time. The garnishee order was set aside by Master Eyre with the leave of Neuberger J in 1999. The order has now been sealed out of time. If anyone is troubled by the reference to Mr. Ralph Wolff as the judgment creditor or to Mr. Ebert as the judgment debtor in action 1995 M. No.906 Mr. Ebert can show that person the order of Master Eyre and the judgment of 21st December 1999. He has copies of both documents. I refuse this application.
CO/4506/1998: application for permission to seek a disclosure order against H.M. Attorney General, Laws LJ and Silber J:
It is plainly an abuse of the process of the Court to seek disclosure against the named respondents and I dismiss the application for that reason alone.
In any event Mr. Ebert was able to put before the Divisional Court any submissions he wished as to the correctness or otherwise of the evidence relied upon by the Attorney General. Much of this was a matter of record. All the documents sought are either within the possession of Mr. Ebert or have been dealt with on previous applications. These include copies of the judgments of 6th June 1995 and 7th July 1995 and the assignment of the judgment debt. So far as the application seeks evidence of how the judgment debt was calculated and the circumstances in which the consideration for the assignment was paid by Ralph Wolff to Midland Bank these are all matters which have been dealt with previously as explained earlier in this judgment.
The grounds of the allegation are all but identical to the grounds relied upon in support of the application for permission to apply for the annulment of the bankruptcy order. I reject them for the same reasons.
Case Number 11216/96: application dated 17th September 2001 for permission to apply to strike out the bankruptcy petition as an abuse of process and a nullity:
This application simply repeats the grounds relied upon in the annulment application. The bankruptcy petition is said to be a forgery supported by a perjured affidavit. The same arguments about there being no judgment debt and about the incorrect references to action 1994 M. No.1568 are repeated. The payment by Ralph Wolff to the Midland Bank is again denied.
The assignment is also alleged to be a transaction at an undervalue designed to prejudice or defraud creditors within the provisions of s.423 of the Insolvency Act. This is equally misconceived. The assignment was plainly not a transaction at an undervalue and the person making the transfer was the Midland Bank.
There is nothing in this application and I dismiss it.
Case Number 11216 of 1996: application for permission to apply to set aside the order of Jacob J dated 26th July 2000:
The order made by Jacob J granted Miss Venvil permission to issue a writ of restitution in order to obtain possession of the house at 23 Cranborne Gardens, London NW11 which was jointly owned by Mr. and Mrs. Ebert. That order was executed and the house has now been sold.
Mr. Ebert alleges that the order was obtained by fraud and is a forged instrument. The particulars of falsity relied upon are that there was no debt, that Miss Venvil was not validly appointed and had no locus to apply for the order and that the bankruptcy order was obtained on the basis of a judgment in action 1994 M. No.1568 to which Mr. Ebert was not a defendant.
It will be readily apparent that there is nothing new in any of this and that all these points are ones which I have already considered and dealt with. This application is also dismissed.
CO/3453/2001: application for permission to seek judicial review of the refusal of Haringey Magistrates Court to issue summonses against Miss Venvil and Ralph Wolff:
There are three summonses to be considered, one against Mr. Wolff and two against Miss Venvil. District Judge Wiles considered that the informations laid before him contained the same complaints as those Mr. Ebert had made both to him and to various judges of the High Court. He was also not satisfied that the informations disclosed that any criminal offences had been committed.
The information against Mr. Wolff alleges forgery and various offences under the Theft Act 1968. But the false statements relied upon are the references in the bankruptcy petition to Mr. Wolff’s address and to the judgment against Mr. Ebert having been obtained in action 1994 M. No.1568. The information also alleges falsity in respect of the statements in the petition that Mr. Ebert was unable to pay the debt and that Mr. Wolff held no security. These are precisely the same allegations as Mr. Ebert made in his application dated 16th July 2001 for permission to apply for the annulment of the bankruptcy order.
The information also contains references to the garnishee order obtained incorrectly in action 1995 M. No.906. When this matter was before Burton J on 16th October 2001 the learned judge was either told or assumed that the setting aside of the garnishee order in some way supported Mr. Ebert’s claim that the bankruptcy was not founded upon a valid judgment. For the reasons given earlier in this judgment this is not correct.
The first information against Miss Venvil alleges forgery and the obtaining of property by deception contrary to s.15 of the Theft Act 1968. These allegations are based upon the possession order in respect of 23 Cranborne Gardens which Mr. Ebert says Miss Venvil had no locus or right to obtain. The validity of her appointment is also denied. Alternatively she is alleged to have been appointed following the making of a bankruptcy order on the basis of a petition which was a forgery. In this regard Mr. Ebert repeats the allegations made in the information against Mr. Wolff.
The other information relates to an order of 9th November 2000 made by Neuberger J in relation to an application by Mrs. Ebert against Miss Venvil. The order correctly recites that the bankruptcy order was made against Mr. Ebert on the petition of Ralph Wolff who was the assignee of the judgment dated 6th June 1995 obtained by Midland Bank against Mr. Ebert in action 1995 M. No.156. The information alleges that this was untrue because there is no such assignment and no such judgment exists.
In my judgment the District Judge was absolutely right to refuse to issue any of the three summonses. They all depend upon allegations which are demonstrably false and which have been considered and rejected both in the High Court and in the Court of Appeal on a number of occasions. I refuse permission to apply for judicial review.
CO/3515/2001: application for permission to apply for judicial review of the refusal of Bow Street Magistrates Court to issue summonses against Mr. Rabinowicz and Midland Bank alleging forgery and perjury:
District Judge Pratt had to consider two informations. The first relates to Midland Bank and contains allegations of forgery and offences under the Theft Act. All these allegations are based on the writ in action 1995 M. No.156. Various facts pleaded in the statement of claim are said to be untrue. These include the allegations that Europride Limited was indebted to the bank in the sum of £86,179.45, that the bank had a charge on property at 87 Hartington Road, Liverpool and that it had received monies from the administrative receivers of Europride in the sum of £41,356.
These are not new allegations and it is far too late now to seek to challenge the correctness of the facts pleaded in a writ issued in 1995. But whether the pleaded facts are correct or not there is nothing in the information which can possibly support criminal charges against the bank..
The information relating to Mr. Rabinowicz is based again on the allegation that he committed perjury in his affidavit in support of the bankruptcy petition. I have already dealt with this allegation earlier in this judgment. It is plainly an abuse.
The District Judge was right to refuse to issue the summonses. The application for permission is refused.
Conclusions
I have spent some time in this judgment analysing the contents of the various applications for permission in order to make it clear that Mr. Ebert has failed to produce any new evidence or indeed any new arguments which might justify the issue of further proceedings. On the contrary each of the applications relies on essentially the same or similar points to those previously considered and rejected by the Courts. It cannot be right for any further court time to be spent on this matter. I was left at the end of the hearing before me with the clear impression that Mr. Ebert has either lost touch with the realities of his position or is simply concerned to maintain a vendetta against those whom he regards as the architects of his bankruptcy regardless of the merits of his case and with no regard for the consequences for other court users.
As already indicated I shall therefore refuse permission in respect of all the applications currently before me. Under section 42(4) of the 1981 Act no appeal lies from this decision. Towards the end of his argument Mr. Ebert queried this having regard to the provisions of the Human Rights Act 1998 and in particular to Article 6 of the Convention. This again is an attempt by Mr. Ebert to re-open an issue previously decided against him. In Ebert v Official Receiver [2001] 3AER 942 the Court of Appeal held that the procedures under s.42 respected relevant convention values and that the absence of any right of appeal under s.42(4) did not infringe any provisions of the Convention or the 1998 Act. I do not therefore intend to entertain any application by Mr. Ebert for permission to appeal.
