England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		11th April 2017

JUDGMENT

11^th April 2017

THE HONOURABLE MR. JUSTICE MOSTYN:

1. This is my judgment on the combined applications made respectively by the Chief Land Registrar on 8^th November 2016 and Bank of Scotland Plc made on 10^th November 2016, that the claims issued against them respectively by the Claimant Michael Veluppillai should be struck out.
2. The Bank of Scotland application additionally seeks that a general civil restraint order should be imposed on the Claimant and this application is supported by the Chief Land Registrar.
3. The claims in question were issued by Michael Veluppillai on 4^th October 2016. The claim against Bank of Scotland Plc is numbered C02CL600 and the claim against the Chief Land Registrar is number C02CL601. They both are closely related to my order made in the financial remedy proceedings in cause number FD13D05270, which order I made on 29^th October 2015. That order gave expression to my judgment of the same date, which is reported on Bailii and in the Family Law Reports.
4. My judgment records how since the case began the conduct of the husband had been truly abysmal. In paragraph 1 of that judgment I said this:

"Since the claim was commenced in September 2012 there have been over 30 hearings including four appeals mounted by the husband. This deluge has been caused by the husband's extreme litigation misconduct. In parallel proceedings concerning a bogus loan asserted by his sister he made threats to kill against the wife and her counsel for which he was committed to prison for contempt. In these ancillary relief proceedings he has been removed from the courtroom on at a least one occasion by security staff. He has been repeatedly warned by judges about his unpleasant menacing conduct in court. On one occasion he assaulted the wife's counsel and the wife in court for which he was later convicted of assault in the magistrates' court. He skipped his sentencing hearing and fled abroad from where he has bombarded the court with abusive emails claiming that he has a fatal illness and demanding that the proceedings be adjourned indefinitely. In the course of the proceedings he has entered into a number of transactions designed to defeat the wife's claims."

I then went on to explain that a warrant, not backed for bail, for the arrest of the husband has been issued by the magistrates' court.

5. In my judgment I recorded how one of the properties in dispute within the case, 7 McKenzie Way, Epsom, which was held in the husband's sole name, had a value of £1m and was mortgaged in favour of the Halifax which is owned by Bank of Scotland Plc in the sum of just under £480,000. I transferred that property to the wife along with making other provision in her favour, dividing the assets of the parties (as found by me) approximately fifty-fifty.
6. I appended to that judgment a chronology which had been prepared by counsel Miss Jennifer Lee (who was instructed by Alaga & Co) which set out the principal events in the marriage, recording, for example, how during the marriage 7 McKenzie Way had been purchased for £620,000 in the husband's sole name in 2002, and it recorded the details of the litigation. An important aspect of this chronology (which I identify in this judgment) is that the proceedings began on 31^st July 2009 with the wife's petition, which the husband persuaded her to withdraw. The wife then presented a second petition, which again the husband persuaded her to withdraw, and the wife then on 14^th August 2012 presented a third petition, which she pursued but which the husband did not defend at that stage and a decree nisi was pronounced on that petition on 4^th June 2013. However, the husband, although he had not defended the petition, appealed against the pronouncement of decree nisi on 5^th August 2013.
7. His appeal was compromised by an order made by Her Honour Judge Plumstead on 15^th October 2013, whereby it was agreed that unless the husband filed within a week a petition under s.1(2)(d) of the Matrimonial Causes Act 1973 (i.e. a petition based on two years separation combined with consent), then his appeal against the decree nisi on the wife's petition which was based on his misconduct would be dismissed. However, if such petition was filed then the wife (it was recorded in the agreement) would consent to that petition and that upon pronouncement of decree nisi in the new petition filed by the husband then her petition would be dismissed.
8. The husband did duly file his petition for divorce, admittedly a few days late but that was not regarded as an obstacle or impediment to its progress and that proceeded in the normal way under the procedure described in Part 7 of the Family Procedure Rules. Where the cause is undefended, those rules require the husband to make an application for decree nisi which he must verify on oath and which affidavit must exhibit a copy of the marriage certificate. That happened in this case and based on that evidence District Judge Hess (as he then was) pronounced decree nisi on 13^th February 2014, which decree was made absolute on 9^th December 2014. Bizarrely, the husband appealed against the issue of decree absolute, but that appeal was later dismissed on 21^st April 2015.
9. I mention this in order that it can be clearly understood that the claim for a financial remedy order was made ancillary to divorce proceedings which were based on the husband's petition and in respect of which decree nisi and decree absolute were pronounced on that petition. Decree nisi amounts to a declaration as to status. It amounts to a declaration that the parties are the people who are pleaded in the divorce petition and that they were married on the date mentioned in the divorce petition. The husband having petitioned on this basis obviously cannot later be heard to say that he was not the person mentioned in the divorce petition or that he was not the person who was married to the other party mentioned in the divorce petition. Those are clear declarations as to status which cannot later be impugned.
10. In parallel with my order of 29^th October 2015, I made an extended civil restraint order to last for two years. That order was made pursuant to Practice Direction 4B of the Family Procedure Rules. Paragraph 3.1 supplies the power to make an extended civil restraint order. An extended civil restraint order restrains the party who is the subject of the order from making applications in any court concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of the judge identified in the order. That judge was identified to be me and the order was for the full two year period permitted by the Practice Direction and will therefore endure until 29^th October 2017.
11. Paragraph 3.3 of Practice Direction 4B provides that:

"Where a party who is subject to an extended civil restraint order –

(a) makes an application in a court identified in the order concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order, the application will automatically be struck out or dismissed –

(i) without the judge having to make any further order; and

(ii) without the need for the other party to respond to it..."

12. That order made by me should have prevented automatically the Claimant from issuing any further proceedings relating to the subject matter of my principal judgment and my order giving effect to it, but as I will demonstrate it has not been effective to do that.
13. Immediately following the making of my order, the husband took every step available to him to try and thwart its implementation, and in those circumstances the wife (as I have called her in this judgment) issued an application for directions to implement the terms of my order and to give it full effect. That came before me on 21^st January 2016. Although the husband had not appeared before me on 29^th October 2015, he was permitted by me to participate in the hearing on 21^st January 2016 by telephone.
14. The first matter that I dealt with was the question of whether the husband was going to apologise for an appalling incident of abuse that he had committed on 9^th November 2015. In my judgment dated 21^st January 2016, I recorded how the husband had meted out extreme abuse in my direction, in emails, but that in accordance with the wise advice given by Lord Clarke in the case of Dhooharika v DPP [2015] AC875, it was for the Court in such circumstances to respond to such abuse with a wry smile and a shrug of the shoulders. However, the abuse meted out by the husband went far further than that and on 9^th November 2015 (as I explained) he had sent an email to a law reporter which he had widely circulated to the press and to officials, in which he had suggested that the law reporter should be executed in a gas chamber and described her as "a fucking monkey nigger".
15. I asked the Respondent if he was prepared to apologise for this, but as described in my judgment he initiated a rant which lasted for over ten minutes and declined to apologise. Having been given every opportunity to apologise and he having refused, he was then disconnected and did not further participate in that hearing.
16. I went on to grant the necessary declarations to enable the wife to implement the order but, as I will describe, the husband has taken further steps which have had the effect of not only thwarting the implementation of my order but indeed driving the wife to live abroad in the light of the threats that have been made against her.
17. So I now turn to the steps made subsequent to my two judgments of 29^th of October 2015 and 21^st January 2016.
18. The first step taken by the husband was to apply to the Court of Appeal for permission to appeal. He took the step in February 2016 and the matter came initially before Rafferty LJ where she refused a stay of execution on 15^th February 2016, and later before Sir Ernest Ryder on 21^st June 2016, where again Mr Veluppillai was permitted to participate in the hearing via the telephone. The application for permission to appeal was refused and was certified as being totally without merit. In his judgment at paragraph 4, Sir Ernest Ryder said this:

"Even a superficial perusal of the papers in this case demonstrates that the husband has behaved extraordinarily badly during the course of these proceedings. Although he firmly denies the fact, he assaulted his wife and her counsel in court and threatened the same to anybody who had offended him or who had been remotely involved, including the judge, who he is on record as describing as a 'fucking cunt' in a barrage of abusive emails directed to the court. The husband has left the country and participates today by telephone link with my leave."

So that was the first step taken by the husband to try to frustrate the implementation of my order.

19. Following his rebuff from Sir Ernest Ryder, the husband drafted a claim form which was described as being issued in the County Court at Central London which he sent to the Bank of Scotland Plc and which was received by them on 16^th August 2016. That claim form had not in fact been issued in the County Court at Central London. It had no claim number and bore no seal. That was followed by an application notice in this putative claim on 8^th September 2016. They both make the same claim, which I shall read:

"Due to identity fraud, I ask the Court to make an order against Halifax Plc not to disclose my mortgage details to Alaga & Co or to any third party based on the order attached as I had nothing to do with the order in question. Otherwise the Defendant will face a serious consequences as the Defendant already disclosed my mortgage details on a bogus court order which was issued on the marriage certificate of Anushiya Veluppillai attached. In the attached marriage certificate shows that her husband's name was Guhananthakumar Veluppillai and his current age is fifty-six and it seems her husband's name changed to match my name fraudulently whereas my name is Michael Veluppillai and my age is forty-nine. My personal details can be confirmed by Halifax Plc. Thus is clearly proves I am NOT husband of Anushiya Veluppillai. I ask also that the Court make a compensation of £52,000 for disclosing my mortgage details on a bogus order without my consent. If there is a hearing, I would ask the Court for a telephone hearing, value £52,000."

20. So it can be seen that the essential claim made by the Claimant (the husband in the divorce proceedings) was that he was not in fact the person who was the subject of the proceedings before me and that the wife was never in fact married to him. Now, it can immediately be seen in the light of what I have said about the effective petition in this case being issued by the husband which proclaimed that he was the husband, that he was married to the wife and that the marriage was declared to have been valid and that the marriage was dissolved at his suit. It can be seen in the light of that that this claim is completely legally impossible and wholly abusive. It is impossible for the husband to deny that he was indeed the person who was the subject of the divorce proceedings and it is further manifestly abusive in that it is a yet further attempt to thwart the implementation of the order made by me transferring 7 McKenzie Way to the wife.
21. Having sent this unissued claim form on 16^th August 2016, the husband in fact issued only three days later an application notice in identical terms in the County Court at Cheltenham and Gloucester against the Halifax Building Society (which, as I say, is now a trading name and wholly owned by the Bank of Scotland Plc). This was allocated the number C00GL653. The application (which, as I say, was in identical terms to that which I have just read) was transferred to the County Court at Kingston-on-Thames and was placed before District Judge King on 29^th September 2016, where he made an order striking it out giving the reason that there were in fact no proceedings or claim in existence in which any interim application could be made. This order, which was dated 6^th October 2016, provoked a characteristically abusive letter from Mr Veluppillai to District Judge King on 14^th October 2016. In it he says:

"The evidence clearly says that the name of the person on the court order who was NOT me as he was previously known as Guhananthakumar Veluppillai is fifty-six years old and the both Halifax and Land Registry are liable for compensation as the parties in question has been screwing up my life due to their appalling behaviour by disclosing my mortgage details and entering restriction over my BLOODY property. Please see further reasons in my application as to why I must be awarded compensation. Judge King. THINK THINK THINK how serious damages they made to me as I have been suffering from terminal illness because of these fraudsters like Halifax and Land Registry. I would thus expect a judge to read my application carefully and make a decision."

22. As I have mentioned, on 4^th October 2016 the two applications were issued against respectively the Bank of Scotland and the Chief Land Registrar. So far as the issued application against the Bank of Scotland was concerned which was issued in the County Court at Central London, it was in the terms which I have already mentioned. The claim against the Chief Land Registrar was in slightly different terms. This named the Defendants to be the Land Registry and for that matter also Mrs Veluppillai and is in these terms:

"Due to identity fraud I ask the Court to make an order against Land Registry to remove the restriction dated 16^th November 2016, an obsolete restriction dated 18^th November 2016 on my property 7 McKenzie Way, Epsom, Surrey, KT19 7ND with Land Registry title of SY714554 based on the order attached as I have nothing to do with the order in question. Otherwise the Defendants will face a serious consequences as the First Defendant already, registered the restriction on a bogus court order which was issued based on the marriage certificate of Anushiya Veluppillai attached which I have nothing to do with her and I was never married to her. In the attached marriage certificate shows that her husband's name was Guhananthakumar Veluppillai and his current age is fifty-six and it seems her husband's name changed to match my name fraudulently whereas my name is Michael Veluppillai and my age is forty-nine. My personal details can be confirmed with Halifax Plc who is mortgage lender for the property in question. Thus this clearly proves I am NOT husband of Anushiya Veluppillai. Due to identity fraud I also ask the Court to make an order against Land Registry to pay me a compensation of £20,000. If there is a hearing I would ask the Court for a telephone hearing, value £20,000."

Although the language is slightly different, it can be seen that the essence of the claim is identical to that issued against the Bank of Scotland Plc.

23. I have mentioned above how the application made by the Chief Land Registrar to strike out the claim against it was made on 8^th November 2016 and the application made by the Bank of Scotland similarly to strike out the application and also for a general civil restraint order, was made two days later.
24. On 3^rd January 2017, District Judge Backhouse sitting at the County Court at Central London ordered that the two applications would be heard on 21^st February 2017. However, the researches undertaken by Eversheds acting for the Bank of Scotland Plc revealed the existence of the extended civil restraint order made by me and in those circumstances an application was made to me to transfer both claims to the High Court Family Division, and specifically to me, for determination. That application was supported by the Chief Land Registrar and I made the order on 15^th February 2017.
25. That provoked a predictable response from Mr Veluppillai, who said this in his letter addressed to the Court Manager of the Principal Registry of the Family Division:

"More than anything crook and evil MOSTYN who is a crook and incompetent fraudster ... this useless mindless family-less and evil MOSTYN ought to be murdered and we as a whole family will murder him ... as they do not deserve to live this planet before committing crimes and traumatising families. In view of this I ask the Court to deal with my claims in the Central London County Court and stop transferring the above claims to the Family Division of the High Court and warn crook MOSTYN for his life. Otherwise we as a whole family we will bomb all of you concerned and your families and your properties as we have had enough of your appalling behaviours and victimising and ripping off innocent human beings and stealing money in the name of the law."

That is a clear threat to kill but it has to be said it is of a piece with the threats that have been issued in the past by Mr Veluppillai.

26. By an email on 20^th March 2017, Mr Veluppillai was given permission to participate in this hearing by telephone and was given a telephone number which he should call, and he duly did call that number. Although it was for him to listen while the claim was opened and argued with him then having the opportunity to respond, he immediately interrupted the proceedings and engaged in a tirade which lasted for some minutes before he 'hung up' (to speak idiomatically). In that tirade, which was quite hard to understand but which as will be seen from the transcript of these proceedings I asked counsel and anybody else in Court to give me the sense of what was said, he again engaged in a high degree of abuse and invective and issued the threats of a similar nature to that which I have already mentioned. The understanding of those who were in Court will be apparent from the transcript of the proceedings, which will be verbatim.
27. So that is the background to the application. In circumstances where there was an extended civil restraint order in force, this should have been placed on the register of such orders so that when Mr Veluppillai issued his application in the County Court at Cheltenham and Gloucester and his later applications in the County Court at Central London, that there was an alert automatically sounded and the proceedings should have been automatically dismissed under either Family Procedure Rules Practice Direction 4B 3.3 or Civil Procedure Rules Practice Direction 3C 3.3 (which is in identical terms). It is a matter of some concern to me that the resources of the parties and of this Court have been wasted in hearing a fully argued application for a strike out when this should have happened automatically under the terms of the two Practice Directions which I have mentioned. Attention needs to be given, in my respectful opinion, to putting in place effective machinery whereby there is an up-to-date fully accessible register of all civil restraint orders together with an automatic flagging system when an application is made in breach of that order which brings about automatic dismissal as the terms of the Practice Directions provide. I will discuss with counsel how these remarks by me might be given more currency, once I have concluded this judgment.
28. In circumstances where these applications (which were plainly related to my order and which had the motive to thwart the implementation of my order) have been made without the prior permission having been obtained from me as the identified judge, there can be no question but pursuant to paragraph 3.3 of each Practice Direction the claims must be automatically dismissed. They are to be treated as nullities having been made in breach of the permission required. However, I will go on to consider whether additionally they should be struck out as being abusive.
29. CPR r.3.4(2)(b) provides that the Court may strike out a statement of case if appears to the Court that the statement of case is an abuse of the Court's process or its otherwise likely to obstruct the just disposal of the proceedings. In Practice Direction 3A paragraph 1.5 it is stated that a claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.
30. The Family Procedure Rules are in identical terms. The rules in question are Family Procedure Rule 4.4(1)(b) and Practice Direction 4A paragraph 2.2.
31. In my judgment, the claims made by Mr Veluppillai are manifestly abusive for two reasons. First, they are legally impossible because they are a direct attack on the order made by me which was based on the valid marriage of Mr Veluppillai to Mrs Veluppillai. For the reasons I have given earlier in this judgment, that is a claim which it is impossible for Mr Veluppillai to make. He is estopped from making that claim. Therefore, the basis of the claim is legally impossible.
32. The second reason why it is abusive is that it is an improper collateral attack on my order. It is a collateral attack made with the motive to frustrate the implementation of my order. As such, it is to be characterised as a manifestly abusive application. The authorities concerning improper collateral attacks are summarised in the decision of Teare J in the epic case of JSC BTA Band v Ablyazov (No 6) [2011] 1WLR 2996, and in my judgment the conduct of the husband in making these applications fall squarely within the principles there stated.
33. So for these reasons the claims made by Mr Veluppillai are struck out.
34. I now turn to the application made by the Bank of Scotland Plc supported by the Chief Land Registrar that a general civil restraint order should be imposed on Mr Veluppillai.
35. I remind myself that there is already in existence an extended civil restraint order but that (as I have described) manifestly has not worked. He has issued since then three sets of proceedings which should have been impossible for him to issue.
36. The criteria for a general civil restraint order are set out in paragraph 4.1 of Practice Direction 3C to the Civil Procedure Rules. Such an order may be made by me as a judge of the High Court pursuant to paragraph 4.1. The effect of a general civil restraint order is that unless prior permission is obtained, the party against whom the order is made is restrained from making a claim or any application in any court, whether the High Court or the County Court or the Family Court, because although paragraph 4.2 of Civil Procedure Rules Practice Direction 3C does not mention the Family Court, by virtue of Family Procedure Rules Practice Direction 4B paragraph 4.2 the power plainly extends to the Family Court in addition.
37. By virtue of Civil Procedure Rules Practice Direction 3C paragraph 4.1, the criteria for making a general civil restraint order are that the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate. As I have demonstrated, Mr Veluppillai has issued claims which are totally without merit since my order was made on 29^th October 2015, and my extended civil restraint order has not been sufficient because (as I have shown) it simply has not worked. In these circumstances, I am wholly satisfied that it is appropriate to make a general civil restraint order.
38. I have discussed whether it should be made in these proceedings (namely combined C02CL600 and C02CL601) or in my initial Family proceedings. In my judgment, the order should be framed in all three proceedings. The reason for this is that if it were just in the Civil proceedings issued against the Bank of Scotland and the Chief Land Registrar, then it might be argued that by virtue of Civil Procedure Rules Practice Direction 3C paragraph 4.2(1) that the order would not extend to the Family Court, whereas there is no such restriction under the corresponding Practice Direction made under the Family Procedure Rules. It is therefore my opinion that the order, which should be a separate free-standing order to the striking out order which I have made, should be entitled in all three sets of proceedings.
39. The order will last for two years. It cannot be for longer than two years by virtue of paragraph 4.9(1) of Practice Direction 3C. In my opinion, there was a strong case here for the order being made indefinitely, but I am satisfied that it would not be a proper exercise of my power for me to purport to make my order pursuant to the inherent jurisdiction and to side-step the technical restriction mentioned by paragraph 4.9. However, an indefinite order can be made pursuant to section 42 of the Senior Courts Act 1981, but such an order can only be made on application made by the Attorney General. In my opinion, the Attorney General should be invited to consider whether to make an application for an indefinite order given the extreme facts of this case which I have mentioned, and I direct that a copy of this judgment be furnished to him by the Government Legal Department solicitor who is instructed by the Chief Land Registrar.
40. That concludes this judgment.