England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Chester Civil Justice Centre
		11/10/2007

Mr Justice Tugendhat

1. In July 1998 Roberto Ferraro ("Mr Ferraro") acquired a lease of Flat 322 at The Colonnades, Albert Dock in Liverpool. Albert Dock Management Ltd ("AD") subsequently became the assignee of the landlord's interest in that lease. Mr Ferraro has been engaged in substantial litigation with AD for many years arising out of what he alleges have been wrongful actions by AD, in relation to service charges and other matters. The lease was subject to a mortgage granted to what was then the Halifax Building Society, and the dispute has extended to them also.
2. The applications which Mr Ferraro seeks to make to me include an application to suspend a possession order and for permission to appeal against an Extended Civil Restraint Order made in the County Court by HHJ Stewart QC on 30 June 2006.
3. Mr Ferraro appeared before me in person. Mr Clayton attended on instructions from AD to assist the court and Miss Sandells attended on instructions from Halifax plc for the same purpose. Neither of them, nor their clients, had seen the application which was listed before me before they attended court.
4. For reasons given by the Court of Appeal on 19 September 2006 ([2006] EWCA Civ 1489) and set out below, the High Court has no jurisdiction to entertain such a renewed application by Mr Ferraro. So it must be dismissed. This application is totally without merit.
5. It follows that I must consider, as required by CPR 52.10 (and as Miss Sandells reminds me), whether it is appropriate to make a Civil Restraint Order. For that reason, and in the hope of assisting the court officials and any judge before whom any further application by Mr Ferraro may come, I set out some of the matters which were canvassed before me.
6. I note that a copy of the judgment of the Court of Appeal does not appear to have been provided to Halifax plc or to the court officials in Liverpool, although it can be found on Casetrack. I direct that a copy of that judgment and of this judgment of mine should be placed on the court file and provided to any judge before whom any application by Mr Ferraro may come in the future.
7. There have been many steps in the different actions involving the parties. The main events to which my attention has been drawn at the hearing include those set out below. This list of events is not complete, and in some instances it is not easy to understand how matters proceeded as they did. There are three large boxes of files of loose papers constituting the court file. These include notes from other judges recording the difficulties they have had in understanding the papers put before them, and the disproportionate time they have spent in attempting to prepare for hearings. I have suffered the same difficulties.
8. On 20 March 2001 DJ Gee made a suspended possession order in Case No LV100431 in favour of Halifax plc. This action, commenced by Halifax plc in January 2001, was the first involving Halifax plc. In it they claimed possession of Mr Ferraro's flat. The dispute between Mr Ferraro and Halifax plc relates to the costs added to Mr Ferraro's mortgage account. DJ Smedley delivered a written judgment dated 2 April 2003 on the issues in this action. He rejected Mr Ferraro's application in that action that all legal costs deducted from his mortgage account be returned. He found that the amount due to discharge the mortgage at that time was £88,000, that Mr Ferraro had other substantial debts, that a sale of the property would yield a figure some £18,000 less than his debts, and that there was no prospect of Mr Ferraro being able to maintain his mortgage payments.
9. By a judgment dated 29 March 2004, to be handed down on 14 April 2004, DJ Smedley held that judgment should be entered for AD for £1,494.28 plus costs against Mr Ferraro in action ZA301183. He described that as the latest episode in the saga between Mr Ferraro and his landlord AD. In that action AD claimed £3,349.58 being service charge instalments on account for the period 1 July 2001 to 30 June 2003 plus an insurance charge. By that time Mr Ferraro had made payments and only £1,494.28 remained in dispute.
10. On 21 February 2005 HHJ Stewart QC handed down a judgment (which ran to 47 pages) relating to disputes between Mr Ferraro and AD. In that judgment at para 4 he referred to an earlier judgment he had entered against Mr Ferraro in favour of AD on a claim issued on 20 August 2004 by Mr Ferraro in which he sought relief against AD in respect of service charges they had claimed against him. He referred in paras 18 ff to a number of claims: ZA000192, LV100298, ZA103110, ZA301183, LV303753. In that judgment HHJ Stewart QC: (A) struck out as an abuse of process a claim by Mr Ferraro that AD had breached the lease and/or the Landlord and Tenant Act 1985 by failing to consult in relation to the service charges; (B) struck out as an abuse of process (alternatively gave summary judgment to AD in respect of) claims by Mr Ferraro (i) that the service charges failed to include a contribution by AD in respect of apartments which it owned; (ii) that AD wrongly added legal costs to the service charges; (iii) that AD charged for terrorist insurance at a level which it was not entitled to charge; (iv) that AD wrongly charged Mr Ferraro for the period 1 July 1998 to 20 September 1998; and (v) wrongly calculated Mr Ferraro's contribution to the 1998 Estate charges.
11. In a footnote to the judgment HHJ Stewart QC summarised the position in relation to each action (which I shall refer to by the last 4 digits of its number) as follows. In 0192 (AD's claim for service charges and rent) AD was substantially successful save as to one element. In 0298 (AD's claim for possession based on a previous unsatisfied judgment plus a further claim) the claim was discontinued by consent on payment of monies by Halifax plc on behalf of Mr Ferraro (this payment, and the costs associated with it, became the subject of complaints by Mr Ferraro against Halifax plc). In 3110 (AD's claim for service charges and rent, and Mr Ferraro's counterclaim for failure to provide service charge information, perjury, race discrimination, breach of covenant, deception etc) judgment was entered for AD and the counterclaim was dismissed and an appeal was unsuccessful. In 1183 (AD's claim for service charges and insurance) judgment was given in favour of AD on 29 March 2004. In 3753 (ten claims by Mr Ferraro against AD) judgment was given by DJ Smedley dismissing the claim in its entirety by an order drawn on 2 August 2004. On 10 November 2004 permission to appeal was refused on all matters save one. A rehearing took place on that one issue before HHJ Stewart QC on 20 January 2004 on the merits, and the claim was dismissed on its merits. In 7177 (Mr Ferraro's claim for a declaration that service charges claimed by AD were not payable because of a failure to comply with s20B of the Landlord and Tenant Act 1985, together with other claims) on 30 November 2004 HHJ Stewart QC gave summary judgment in favour of AD on the s20B point, and on 21 February 2005 he struck out the other claims as an abuse of the process of the court and/or gave summary judgment to AD on all claims.
12. In his judgment HHJ Stewart QC said that the claims brought by Mr Ferraro in 3753 and 7177 were wholly unmeritorious. He recorded that Mr Ferraro had taken up many days not only of Court time but also days and days of judicial preparation time trying to sort out just what he is saying and trying to make sense of it. He stated that the footnote to his judgment was a warning to Mr Ferraro that should he issue any further claims or make any further applications which are judged to be unmeritorious in relation to AD, then the court would consider making an Extended Civil Restraint Order.
13. A further issue between the parties related to a car parking space. Mr Ferraro contended that he had a proprietary interest, whereas AD contended that he had a licence. This matter was litigated in 2004 before DJ Smedley. HHJ Stewart QC granted permission to Mr Ferraro to appeal against the adverse finding of DJ Smedley, but came to the same conclusion adverse to Mr Ferraro. Mr Ferraro sought to appeal against HHJ Stewart QC's judgment, but HHJ Stewart QC refused permission to appeal, as did Simon J on 13 May 2005 (he had directed on 25 April 2005 that the matter be listed for an oral hearing which took place before him). As Maurice Kay LJ observed in a judgment delivered on 5 May 2006 ([2006] EWCA Civ 805) para 5, the appeal that Mr Ferraro was seeking to pursue would have been a second appeal, and so have faced the additional procedural hurdle of CPR 52.13 (an important point of principle and practice). Not content with the decision of Simon J made on 13 May, on 15 August 2005 (that is out of time) Mr Ferraro lodged an application for permission to apply for judicial review of the decisions of DJ Smedley and HHJ Stewart QC. This application was refused on the papers by Bean J and on 4 November 2005 Lloyd-Jones J refused permission on an oral renewal of the application, and considered whether he should make a Civil Restraint Order. He warned Mr Ferraro that such an order might be made.
14. On 5 May 2006 ([2006] EWCA Civ 805) Maurice Kay LJ's judgement was given on the hearing of an oral renewal of the application for permission to appeal made to Lloyd-Jones J. Maurice Kay LJ held that the application was misconceived in that the court lacked jurisdiction to review a decision for which the CPR set out the rights of appeal. Maurice Kay LJ had the case relisted before two Lords Justices for consideration of whether a Civil Restraint Order should be made.
15. On 30 June 2006 HHJ Stewart QC made an Extended Civil Restraint Order on his own initiative in relation to 3753, 7177, and on the application of Halifax plc, in relation to two actions to which Mr Ferraro and Halifax plc were parties, 6LV50962 and LV1 00431. He ordered that it remain in effect until 29^th June 2008. The Part 8 Claim Form in 0962 was issued by Mr Ferraro on 15 February 2006.
16. On 10 July Openshaw J refused Mr Ferraro permission to appeal orders made by DJ Smedley and HHJ Stewart QC dated 2 August 2004 and 11 November 2004. He was apparently unaware of the ECRO HHJ Stewart QC had made on 30 June and remarked that proceedings to make Mr Ferraro subject to a CRO were now urgent as Mr Ferraro continued to bombard the High Court and the County Court with correspondence and applications to the disadvantage of other more deserving litigants.
17. On 25 July 2006, at oral hearings in Liverpool in actions 3753, 0431 and 0962, Openshaw J refused Mr Ferraro permission to appeal the ECRO made by HHJ Stewart QC on 30 June 2006. Mr Ferraro complained to me that the oral hearing was brief and that it should have been longer. According to the Court Case Log the matter was heard for a total of nearly an hour and half, in stages, the first being between 1007 and 1028 (during which Mr Ferraro made submissions), when it was adjourned. The hearing resumed between 1051 and 1125, when it was adjourned again. It resumed at 1207 and concluded at 1235, when Openshaw J found against Mr Ferraro.
18. On 11 August 2006 Mr Ferraro issued an Appellant's Notice.
19. On 19 September 2006 Waller and Longmore LJJ considered the Order of Maurice Kay LJ made on 5 May 2006, and made an Extended Civil Restraint Order against Mr Ferraro. They set out their reasons in [2006] EWCA Civ 1489. They noted the warning HHJ Stewart QC had given in the footnote to his judgment of 21 February 2005 and said that his remarks were entirely justified. They noted that the application to Simon J should have been the end of the matter, and that Bean J and Maurice Kay LJ had stated that Mr Ferraro's applications to them were totally without merit. At para 14 they said that the ECRO currently in force in the County Court (that is the one made on 30 June by HHJ Stewart QC) was plainly insufficient. They recorded that Mr Ferraro had addressed them at great length that afternoon and had emphasised in particular the statement made during the course of the judgment by HHJ Mackay in relation to the fact that accounts were not produced by AD at the time the matter was before HHJ Mackay. They said that had been investigated and ought in any event to have been brought forward, if it was a true matter of complaint, at the time it was before HHJ Stewart QC.
20. I interpose to make two points. First, those observations apply as much to the hearing before me, which lasted some two hours. Mr Ferraro addressed me at great length and emphasised in particular the order of HHJ Mackay made in Liverpool County Court on 28 August 2002 and his claim that accounts were not produced by AD at the time the matter was before HHJ Mackay. By that order HHJ Mackay dismisses Mr Ferraro's appeal in 3110, but recorded AD's undertaking to furnish by 31 October 2002 all accounts in respect of service charges levied on their premises during Mr Ferraro's occupation. He ordered that as to the amount of the service charge then outstanding the case be adjourned to 11 September 2002. On 13 September 2002 HHJ Mackay made an order calculating that the judgment be in the sum of £1,411.57. Mr Ferraro's claim that accounts were not produced was an assertion. He did not take me to any documents emanating from AD in relation to that matter.
21. Longmore and Waller LJJ observed that the ECRO related not only to AD but also to the two Halifax actions 0962 and 0431. Because they knew little about those proceedings (Halifax were not represented before them, whereas AD was represented by Mr Clayton) the ECRO made by the Court of Appeal was made in relation to 3753 and 7177 only. They added that if Halifax considered that their interests required a general Civil Restraint Order, then Halifax should apply for it. Meanwhile they noted that the order made on 30 June by HHJ Stewart QC remained in force (para 17).
22. At para 18 of his judgment Longmore LJ set out the reasons given by Openshaw J for refusing the appeal in relation to 3753. At paras 19 and 20 Longmore and Waller LJJ respectively said this:

"19.     We have today been shown a document of 11th August which purports to be a Notice of Appeal in the High Court and stamped with a Liverpool stamp which is yet a further application for permission to appeal and one of the matters upon which that appeal is sought to be made is, yet again, the extended civil restraint order made by HHJ Stewart.  There is plainly no jurisdiction in the High Court in Liverpool to consider those matters and now that Openshaw J has refused permission to appeal, of course it hardly needs to be said that any further application in respect of the judgment of Openshaw J or in relation to any other matter in these proceedings will be caught by the extended civil restraint order which this court will now make.
20.    I entirely agree with the judgment that my Lord has delivered and that the extended restraint order should be made.  It is perhaps apposite to add one point in relation to the Notice of Appeal that has been put in in the Liverpool Crown, and which we were shown, that of 11th August.  It being remembered that HHJ Stewart refused permission to appeal his order and that Openshaw J refused permission to appeal the order of HHJ Stewart, it would in any event appear from the notes of the White Book that that is the end of the road.  There could be no question of any appeal being brought to this court.  The note reads as follows:

"52.37 Refusal of permission is, effectively, the end of the road [and authority is cited].  If both the lower court and the appeal court refuse permission to appeal it is not possible to appeal to a higher court, eg, the Court of Appeal, against that refusal of permission." 

23. Ms Sandells, who appears for Halifax, submits that those observations must apply equally to Halifax plc as they do to AD. I agree.
24. On 12 October 2006 the Civil Appeals Office wrote to Mr Ferraro in response to a letter from him indicating his wish to apply to amend the ECRO. The CAO informed him of the procedure that he would have to adopt and added that, as the writer understood the position, any appeal from the order of HHJ Mackay made on 13 September 2002 (permission having been refused by the judge) would have to be made to the High Court, and that the ECRO of the Court of Appeal did not apply to 3110. On 27 October 2006 the CAO wrote to Mr Ferraro again in reply to a further letter from him on the procedure to be adopted if Mr Ferraro were to appeal in 3110 or to apply to amend the ECRO made by HHJ Stewart QC.
25. On 19 March 2007 in 0431 and 0962 Mr Ferraro issued what purports to be a Notice of Appeal against the order of HHJ Stewart QC dated 30 June 2006 (having, as already noted, previously issued such a Notice on 11 August 2006). The grounds of appeal are substantially directed to challenges to the decisions on the merits of the disputes made by HHJ Stewart QC. In substance, his central grievance expressed in the Appellant's Notice and his submission before me is the amount of the sums debited to his mortgage account by Halifax, and the findings of HHJ Stewart QC in his judgment of 21 February 2005. Mr Ferraro appeared to be asking me, yet again, for permission to appeal against that judgment. In his Notice of Appeal of 19 March 2007 Mr Ferraro asks for the possession order to be set aside and any eviction order to be suspended in respect of 0431. He also asks for the ECRO in 0962 and 0431 (that is the one made by HHJ Stewart QC) to be revoked.
26. On 4 April 2007 Irwin J made orders in 03753, 7177, 0962 and 0431. He ordered that the appeal by Mr Ferraro in the first three of these actions, namely against the ECRO made by HHJ Stewart QC on 30 June 2006 be dismissed forthwith on the ground that the appeal is devoid of merit and has no prospect of success. Para 2 of that order reads; "The said order of HHJ Stewart QC is affirmed in the terms set out in paragraphs 1, 2 and 3 of that order". Paras 1, 2 and 3 are the standard paragraphs dealing with applications.
27. On 24 April 2007 Mr Ferraro requested an oral hearing, continuing his complaint that Halifax plc were not giving details of the amounts of costs, and that para 3 of the order of HHJ Mackay of 28 August 2002 had not been complied with.
28. On 30 April 2007 Mr Ferraro issued an Application Notice in 0431 for an order that the warrant for possession be suspended until final determination of the appeal in the High Court.
29. On 10 May 2007 DJ Smedley ordered in 0431 that Mr Ferraro have permission to apply to suspend the warrant of possession and on 2 August 2007 in 0431 DJ Smedley ordered that the warrant for possession be stayed until 10 October 2007, that is, until after the hearing before me.
30. On 22 May 2007 DJ Smedley gave directions in 0431. He ordered Halifax to set out details of the mortgage accounts and that the matter be listed at the first available date after 20 July 2007.
31. On 25 July 2007 Grigson J made orders (as amended on 27 July 2007) in 3753, 7177, 0962, 0431 and 3110. He referred to an oral hearing in respect of the orders made by Irwin J, and directed that all these matters be listed for a hearing in October, and that Mr Ferraro supply to the Court in respect of each of these actions a separate skeleton argument stating what he is asking the Court to do, why, under what rule or statute he asserts the court has power to do it and what evidence he relies on.
32. On 24 September 2007 Mr Ferraro issued an Application Notice in 0431, seeking an order for disclosure of documents.
33. On 2 October 2007 Mr Ferraro issued an Application Notice in bankruptcy proceedings seeking an annulment of the bankruptcy order made in respect of himself on 15 March 2007. The grounds relate to his complaints as to the merits of the claims made against him by AD.
34. Mr Clayton submitted that the effect of the bankruptcy order is that any rights Mr Ferraro may have had in relation to the lease now vest in the Trustee. I do not have to consider that submission in this judgment, but it is a point that remains to be considered by any judge before whom any application by Mr Ferraro may be made in the future.
35. On the day of the hearing, 3 October 2007, I received another bundle of papers from Mr Ferraro. In a three page document dated 2 October 2007 he rehearses his complaints as to the merits of his disputes with Halifax in 0431 and 0962. In other documents of the same date (some headed "Skeleton Argument") Mr Ferraro set out his complaints in relation to 3110, 3753 and 7177. They relate to the merits of the claims, and to differences between orders made by HHJ Mackay and HHJ Stewart QC.
36. Miss Sandells submits that Halifax plc have in fact complied with the order of DJ Smedley. She mentioned a witness statement of a Miss Tillotson dated 21 June 2007 and a hearing before DJ Smedley on 15 August 2007. Given that this court has no jurisdiction to entertain the appeals for which Mr Ferraro applies for permission, I have not had to adjudicate upon this point, but it is right that the submission of Halifax plc on the point should be recorded.
37. The Practice Direction to CPR Part 3.11 provides that a General Civil Restraint Order may be made by a judge of the High Court where 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.
38. In my judgment, the history of this litigation as I have set it out, demonstrates that the Extended Civil Restraint Orders imposed by HHJ Stewart QC and by the Court of Appeal are not sufficient, and that Mr Ferraro has persisted in making applications which are totally without merit notwithstanding the clear explanation given to him by the Court of Appeal. The parties have made submissions to me in writing as to the drafting of the General Civil Restraint Order following the circulation of this judgment in draft.
39. The order I shall make shall be that Mr Ferraro be restrained from bringing any claim or making any application in the High Court or any County Court without first obtaining the permission of such Judge as the Presiding Judge of the Northern Circuit shall nominate.
40. On 4^th October, between the hearing of his application and the handing down of this judgment, Mr Ferraro issued another Notice of his intention to apply for a stay of the warrant in 0431. The grounds relied on again relate to the merits of the dispute about the amount of arrears. This is a further application which is wholly without merit. He refers to the Administration of Justice Act 1970, s.36, but does not suggest, and could not suggest, that he is likely to be able within a reasonable period to pay any sums due under the mortgage, but continues to argue that he is not liable to pay at all, contrary to the decision of DJ Smedley in April 2003.
41. In summary, all the applications by Mr Ferraro are dismissed and there will be a General Civil Restraint Order.