England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)

		Fetter Lane London
		18th December 2017

MR JUSTICE CARR:

1. I have before me an application by the defendant which seeks the following orders.

a. First, an order setting aside the order of Garnham J dated the 25^th July 2017 which granted judgment in default of acknowledgement of service in these proceedings. Garnham J gave express liberty to apply to set aside that order.

b. Secondly, an order striking out the claimant's claim, or for summary judgment in favour of the defendant.

c. Thirdly, an Extended Civil Restraint Order against the claimant, Mrs Sartipy.

d. Fourthly, an order that the defendant's costs relating to the claim be paid by the claimant on an indemnity basis.

Background

2. This application arises out of litigation which has been going on for some nine years, since approximately 2008. Mrs Sartipy and her son, Mr Langroody, also known as Mr Ghassemian, brought a claim against the defendant, attempting to obtain adverse possession of the defendant's property at 26-30 Earls Court Road, London. That attempt to obtain adverse possession was rejected by the Land Registry deputy adjudicator in very strong terms, who concluded, amongst other things, that the claim had been based upon documents which had been forged by Mr Langroody, a finding of the most serious nature, which was also addressed by Lewison LJ in his judgment of the 23^rd February 2016 at [2016] EWCA Civ 269. Lewison stated at [2] that:

"The extraordinary story in this case begins with the bogus claim to acquire title by adverse possession of land registered in the name of Tigris Industries Inc, supported by forged and fabricated documents. One of the claimants was Mrs Hamila Ghassemian and another was her son, Mr Sharooz Langroody. The deputy adjudicator found that Mr Langroody had "created an elaborate and false paper trail to support his case which … simply does not stand up to scrutiny.".

3. At paragraphs [23] to [24] Lewison LJ explained why the deputy adjudicator was entitled to conclude that those documents were forged and fabricated.
4. Subsequent to the judgment in the adverse possession proceedings, an interim costs order originally dated the 25^th November 2010 and then re-dated the 12^th July 2011 for the sum of £60,000 was made in the defendant's favour. The defendant proceeded to enforce that costs order by way of a charging order and an order for sale of the claimant's property at 56 Chatsworth Court.
5. This application relates to the defendant's charging order dated 17^th July 2011, which was varied by an order of Master Fontaine dated 31^st January 2011 ("the Charging Order"), which has at the moment been set aside by the order of Mr Justice Garnham.
6. There have been three previous attempts made by the claimant to appeal, vary or revoke the Charging Order. First, an application for permission to appeal to Spencer J, which was dismissed by an order dated the 16^th September 2011. Secondly, an application to re-open the appeal to Nicol J, which was dismissed on the papers by an order dated the 2^nd February 2012, and Nicol J gave detailed reasons for dismissing the application. Thirdly, an application to vary or revoke the Charging Order to Norris J on the grounds the Charging Order had been procured by fraud, which was dismissed on the 22^nd July 2013; [2013] EWHC 2170 (Ch).
7. At [10] – [12] Norris J referred to a notice of appeal by the claimant from an order of Deputy Master Bard, in respect of which he refused permission to appeal. In that notice of appeal, the claimant sought to set aside that judgment of Deputy Master Bard on the grounds of fraud and she sought to be allowed to adduce fresh evidence. She said the evidence would show the following:

a. One witness had fraudulently represented himself to be Oza Mustafa, otherwise known as Isu Mustafa. Oza Mustafa was dead at the date of the hearing.

b. The other witness, Mr Ozbuluter, knew that the person giving evidence as Oza Mustafa was not Oza Mustafa.

c. UK and Iranian immigration entry and exit records would show that the claimant had not been in the UK at the date of the CMC before the adjudicator of the Land Registry, which took place on the 28^th September 2009.

d. A photograph identification of the claimant, which the defendant's two witnesses alleged to have taken place in or around September or October 2009, in fact never occurred at that time or since.

8. Those grounds for the appeal were, in all material respects, identical to the grounds which were set out in the particulars of claim in these proceedings, which again seek to set aside the Charging Order.
9. In his 2013 judgment, Norris J dealt comprehensively with the history of the proceedings until that date and considered whether or not he would allow permission to appeal. At paragraph [12] he said:

"Although this is technically an appeal against a different order consequent on the same judgment of Deputy Master Bard, everybody knows that (and has approached the hearing on the footing that) this is really an attempt to revisit the issue of whether Mrs Sartipy was the person who applied to be registered as the proprietor of some valuable land in Earls Court and who lost the hearing before the adjudicator to HMLR. The ground on which this is said to be permissible is that the final charging order granted by Deputy Master Bard was procured by fraud. Mrs Sartipy's case is that on the material now available to her she can show that the Mustafa who purported to give evidence before Deputy Master Bard was not who he said he was and that Mr Ozbuluter must have known this to be so. She also wishes to challenge again the photograph identification alleged to have been made in October 2009 and to assert again that she was not in the United Kingdom on the 28^th September 2009."

10. At paragraph [13] Norris J said:

"I refuse to extend time for bringing of the appeal: and in any event, I would refuse permission to appeal on the merits. In my judgment, the principle of finality in litigation (whilst not absolute) has a real and independent value. It is a key part of the complex organism that is "justice". It has been decided in this case that Mrs Sartipy was the applicant for a registered title at HMLR and the applicant to the Adjudication proceedings. Permission to appeal that decision has been refused. Permission to re-open the appeal has been refused. What is effectively an application for permission to re-open the refusal of permission to re-open the refusal of permission to appeal should also be refused."

11. Mr Langroody is under an extended civil restraint order. Nonetheless I allowed him to make submissions on behalf of his mother at this hearing. He said that, in spite of paragraph [13] of the judgment of Norris J, she should be entitled yet again to rely upon these same allegations in further proceedings. He did so on the basis of paragraph [17] where Norris J said:

"For these reasons I would refuse permission to appeal: There is no real prospect of achieving (what is in effect) the setting aside of Mr Justice Nicol's order within the existing proceedings."

12. Mr Langroody submitted that the reference to "the existing proceedings" contemplated the commencement of fresh proceedings on precisely the same facts which had been relied on before Norris J. That allegation has no prospect of success. It is perfectly clear from paragraph [13] of the 2013 judgment the principle of finality prevented re-opening of these allegations, and Norris J would never have permitted, and did not permit, further proceedings to be started based on exactly the same facts.
13. I turn then to a short history of subsequent events. Norris J allowed an appeal against the order for sale, not the Charging Order, on the 15^th October 2014. However, the defendant successfully appealed Norris J's order to the Court of Appeal, where Lewison LJ found that the matters raised by the claimant amounted to an abuse of the process of the court (see above).
14. Mr Langroody made an application for permission to appeal the Court of Appeal's decision, which was refused by Patten LJ on 12^th May 2015 as being totally without merit, an abuse of process and a collateral attack on a properly obtained judgment.
15. Chatsworth Court Freehold Limited, the landlord of the property, who also had a benefit of a charging order over the property at 56 Chatsworth Court, then obtained their own order for sale on 10^th June 2015 from District Judge Silverman, amended by His Honour Judge Mitchell on 18^th August 2015 and has now taken steps to enforce it by selling the property.
16. Various applications were then made by the claimant and Mr Langroody to frustrate the sale of the property. Those applications were consolidated and heard by me on the 3^rd March 2016 and dismissed with an extended civil restraint order made against Mr Langroody (known in those proceedings as Mr Ghassemian).
17. I further indicated that the Attorney General might wish to investigate Mr Langroody/Ghassemian's conduct and I understand that from Mr Langroody that the Attorney General has taken up that case.
18. Pursuant to Chatsworth Court's order for sale, the property was sold on the 29^th March 2017 and the net proceeds of sale, approximately £340,000, were paid in court. On the 7^th April 2017, the landlord made an application for an order for the net proceeds of sale to be paid out in accordance with the order for sale and a hearing was listed for the 20^th October to decide how the funds should be paid out.
19. On the 20^th October 2017, I ordered that part of the net proceeds could be paid out to the landlord, Chatsworth Court Freehold Co. Limited but, in the light of the order of Garnham J, I also ordered that the defendant must first seek to set aside that order before the court would release the funds to the defendant.

Judgment in default

20. I now turn to the application to set aside Garnham J's order. The address purportedly used for service by the claimant was not the address of the defendant. The defendant is a company registered under the law of the Republic of Panama with its registered office address at Messrs Mendoza, Arias, Vallet & Castillo, PO Box 0819-07327 El Dorado, Panama, Republic of Panama. The company uses a UK address at 25 Manor Lane, Maidenhead, Berkshire and this address is provided as one of the addresses for service on the title registry of the property, known as 26-30 Earls Court Road, which was the property in issue in the adverse possession proceedings.
21. No papers relating to this claim were served on the defendant at its Panamanian office nor its UK address. Furthermore, the claimant and Mr Langroody were at all times aware that the defendant was represented by Ashfords LLP and that Ashfords LLP remains the firm on the court record in relation to the Charging Order proceedings. Documents have historically been served on Ashfords LLP either by Mr Langroody directly or through solicitors who have been acting for him from time to time. However, no papers relating to this claim were served on Ashfords LLP.
22. I can only conclude that that was entirely deliberate on the part of Mr Langroody, who has been conducting these proceedings on behalf of his mother. He deliberately did not serve the proceedings at the correct address and then sought to mislead Mr Justice Garnham into believing that the proceedings had been served, relying upon a certificate of service. Therefore, I have no hesitation in setting aside the order of Mr Justice Garnham. If he had known the true facts, he would not have made that order.

Summary judgment

23. I then turn to the application to strike out the claim or for summary judgment. This claim relies on the same allegations which had been raised before as part of the claimant's application for permission to appeal, which was heard by Norris J and which was dismissed by him on the basis it was plainly an abuse of the process of the court.
24. To attempt to rely on the same allegations again is plainly another attempt to re-open a case which has already been dismissed and is abuse of process of the court in a case which is littered with similar abuses of the process of the court, for which Mr Langroody, in collusion with his mother, is entirely responsible.
25. Therefore, I will enter summary judgment in favour of the defendant or alternatively, as the claimant has no real prospect of success, I will strike out the claim.

Extended Civil Restraint Order

26. Before turning to the question of whether to grant an Extended Civil Restraint Order against Mrs Sartipy, I should state that these proceedings, which were brought by Mrs Sartipy, were totally without merit and an egregious abuse of the process of the court, and the order will record that.
27. I will summarise, first of all, various judgments in which the relevant court or tribunal has referred to Mr Langroody's propensity to lie to the court and fabricate documents, on occasion using Mrs Sartipy as claimant.

a. Paragraph [12] of the decision of Miss McAllister in the adverse possession proceedings referred to the fact that Mr Langroody had forged documents on which those proceedings were based and at paragraph [63] she found that Mr Langroody had created an elaborate and false paper trial to support his case.

b. Paragraphs [16] – [17] and paragraph [65] of the judgment of Patten J, as he then was, sitting as long ago as 19^th February 2002, characterised Mr Langroody as devious and dishonest.

c. Paragraph [38] of the judgment of Arden LJ, dated 8^th June 2009 stated that a referral should be made to the Crown Prosecution Service in respect of an allegation made against Mr Langroody that he forged a letter.

d. Paragraph [52] of the judgment of Mr Michael Mark, dated 30^th November 2009, sitting as a deputy adjudicator in HMLR, found that Mr Langroody had concocted his case, fabricated letters and misled the court.

e. Paragraphs [85] and [88] of Master Teverson's judgment dated 11^th January 2013 determined that documents relied upon by the claimant, Mrs Sartipy, namely a declaration of trust and a will, were respectively, a sham and not a genuine document.

f. Deputy Master Bard's decision was that the claimant, Mrs Sartipy, had been a party to the adverse possession proceedings despite her signed witness statement to the contrary.

g. I found in a judgment given on 3 March 2016 that Mr Langroody had repeatedly attempted to mislead the court, lied in his witness statement and falsified documents to support his case.

28. That history demonstrates, in my view, that the claimant and Mr Langroody have worked together to defraud the defendant as well as other parties. I also find that, contrary to a claim that was advanced by Mrs Sartipy before Deputy Master Bard, Mrs Sartipy gave Mr Langroody authority to act for her and she allowed his actions to be treated as her own.
29. In those circumstances, the question arises as to whether I should make an Extended Civil Restraint Order against Mrs Sartipy. Paragraph 3.1 of Practice Direction 3C provides, amongst other things, that a judge of the High Court may make an Extended Civil Restraint Order where a party has persistently issued claims or made applications which are totally without merit.
30. I focus on the words, "persistently issued claims or made applications which are totally without merit." The meaning of that phrase was considered by Mr Justice Newey, as he then was, in the case of CFC 26 Ltd and others v Brown Shipley & Co Limited and others. At paragraph [13] of his judgment, Mr Justice Newey, having analysed the relevant authorities, concluded that an ECRO cannot be made unless there has been, overall, three totally without merit claims or applications. However, he also concluded at paragraphs 19 to 20 of his judgment as follows:

"19 There are, moreover, circumstances in which the courts view someone who is not a named party as the "real" party to litigation. That can be the case with an application for a costs order to be made against a non-party. In Dymocks Franchise Systems (NSW) Pty Ltd v Todd (Associated Industrial Finance Pty Ltd, Third Party) [2004] 1 WLR 2807 , Lord Brown of Eaton-under-Heywood, giving the judgment of the Privy Council, explained (at para 25):

"Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party's costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is 'the real party' to the litigation, a concept repeatedly invoked throughout the jurisprudence—see, for example, the judgments of the High Court of Australia in the Knight case 174 CLR 178 and Millett LJ's judgment in Metalloy Supplies Ltd v MA (UK) Ltd [1997] 1 WLR 1613 Consistently with this approach, Phillips LJ described the non-party underwriters in T G A Chapman Ltd v Christopher [1998] 1 WLR 12, 22 as 'the defendants in all but name'."

20 On balance, it seems to me that, in a comparable way, references in Practice Direction 3C to a "party" who has issued claims or made applications, or to a "party" issuing claims or making applications, should be read as extending, not only to the named claimant or applicant but, where different, to the "real" claimant or applicant. Where the person against whom a CRO is sought has been the "real" party behind totally without merit claims or applications, it must, I think, be possible to take them into account. Likewise, if a claim or application is issued in the name of someone who is not subject to a CRO , but the "real" claimant or applicant has had such an order made against him, the CRO will, as it seems to me, bite on the claim or application. That is by no means, though, to say that a CRO will be in point wherever, say, the person subject to it has an interest, however small, in a company or trust that brings a claim or makes an application.

31. In my judgment, this is a case where the real claimant or applicant is Mr Langroody, otherwise known as Mr Ghassemian. He admitted, as is obvious in any event from the fact that Mrs Sartipy's English is very limited, that he drafted all of the documents which are in legal or "legalese" form. It is clear, from all the history to which I have referred, that Mr Langroody is using his mother's name in an attempt to avoid the effects of an ECRO in numerous applications which have been before the court. I am prepared to grant the Extended Civil Restraint Order against Mrs Sartipy.
32. Furthermore, in Lilley v Euromoney Institutional Investor Plc [2014] EWHC 2364 at paragraph [104] Birss J concluded that, even where earlier applications had not been characterised in an order as totally without merit, nonetheless it is possible to decide that they were in fact totally without merit and then take that into account in considering a civil restraint order.
33. For the reasons which I have set out in in this judgment, I take the view that the various and repeated applications by Mrs Sartipy, based as they were upon forged documents and lies to the court, were paradigm examples of applications which were totally without merit. For that reason as well, I grant the Extended Civil Restraint Order.
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