Birmingham City Council & Anor v Yardley [2004] EWCA Civ 1756

Case No B2/2003/2138

Case No B2/2003/2139

Case No B2/2004/1000

[2004] EWCA Civ 1756

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM BIRMINGHAM COUNTY COURT

(HIS HONOUR JUDGE MCKENNA

and MR RECORDER REX TEDD QC)

Venue Royal Courts of Justice

Date Thursday, 9th December 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE KENNEDY

LORD JUSTICE JACOB

LORD JUSTICE GAGE

Between

BIRMINGHAM CITY COUNCILRespondent

BRYAN NOTTRespondent

-v-

Between

PAUL CHARLES ROYSTON YARDLEYAppellant

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

The Applicant appeared on his own behalf

MR ALASTAIR SMAIL (instructed by Birmingham City Council, Legal Services, Ingleby House, 11-14 Cannon Street, Birmingham B2 5EN) appeared for Respondent

J U D G M E N T

LORD JUSTICE KENNEDY:

Lord

Justice Gage will give the first judgment.

LORD JUSTICE GAGE: In this judgment I propose to refer to the various parties by their proper names, rather than respondent and appellant.

[3]Mr Yardley seeks to appeal three orders made in litigation between him and the Birmingham City Council, who are the first claimant, and Brian Nott, who was the second claimant. There are three orders which he seeks to challenge. The first are two orders made by His Honour Judge McKenna on 18th September 2003. On that date he made a committal order in respect of a breach of an injunction sentencing Mr Yardley to 28 days' imprisonment suspended for 12 months. Mr Yardley appeals as of right in respect of that order.

[4]The second order is an order made by His Honour Judge McKenna on the same date in which he discharged an injunction made by Mr Recorder Tedd, to which I will come in a moment, and made a fresh injunction in similar, but not precisely the same terms. Mr Yardley seeks permission to appeal that injunction order.

[5]The third order which Mr Yardley seeks to appeal is an order made by Mr Recorder Tedd QC on 2nd April 2004, whereby he dismissed an application by Mr Yardley for him (that is the Recorder) to hand down and pronounce judgment in open court in respect of his decision following a trial of proceedings between the Birmingham City Council and Mr Yardley in October 2002. He requires the permission of this court to appeal that order.

[6]In order to understand the appeal and these applications, it is necessary to deal with the background history of the matter. It appears that between 1980 and 1982 Mr Yardley held a series of hackney carriage driver's licences and a vehicle licence which were issued to him by the Birmingham City Council pursuant to its statutory duties and powers. In 1992 those licences expired. There followed, to put it as briefly as I may, a dispute between the Birmingham City Council and Mr Yardley on whether or not he had made proper applications for the renewal of these licences. As appears from the judgment of Mr Recorder Tedd QC in proceedings which arise out of that dispute, dealings between the parties became more and more difficult and certainly so far as Mr Yardley is concerned, as the Recorder subsequently found, more and more acrimonious. In due course, the Birmingham City Council and Mr Brian Nott issued proceedings against Mr Yardley, seeking an injunction restraining him from harassing it, its employees and Mr Nott. Mr Nott had been the Chairman of the licensing committee.

[7]Mr Yardley issued his own proceedings in a claim which subsequently was incorporated in a counterclaim to the Birmingham City Council's claim. In his claim Mr Yardley alleged that the Birmingham City Council's actions in refusing him licences was unfair and unlawful, and that the council had acted in a way which was a deliberate and dishonest abuse of its powers. It was alleged that the Birmingham City Council's actions amounted to the tort of misfeasance in public office.

[8]The trial took place on 23rd and 24th October 2002. It was a trial before Mr Recorder Tedd QC. He reserved his judgment. On 8th January 2003 the Recorder (to use a neutral phrase at this stage) handed to the parties a document entitled "Draft Judgment". It was handed to the parties in open court. What happened on that occasion is the subject of the grounds of appeal in the appeal and applications for permission to appeal.

[9]In that judgment the Recorder made clear his findings of fact. In summary, so far as is material for the purposes of this judgment, they were these. Dealing with the question of the application for fresh licences, the Recorder found that Mr Yardley did not make an application in the appropriate form accompanied by the appropriate fee, nor was Mr Yardley willing to satisfy the requirements of the licensing scheme operated by the council, for example by participating in and passing a driving or knowledge test. The Recorder further found that, save perhaps in the early stages in 1993 to 1995, Mr Yardley had no real intention to start work again as a hackney carriage driver, that he became obsessed with a desire to bend the council to his will and to manoeuvre, bully or trick the council into doing what he had determined it should do at his behest, namely to issue him a driver's licence at a lower fee without undergoing the full application procedure and testing. The Recorder found that Mr Yardley's life had become dominated by this unmeritorious campaign. He further found that the campaign included sending 1,626 letters between 6th April 1993 and 16th September 2002, only ten of which antedated January 1996. The correspondence was not just voluminous, the Recorder found it was repetitive and targeted at various individuals, each of whom would receive what was essentially a copy of the same letter. He further found that there was a personal campaign against Mr Nott and also a telephone campaign directed at others.

[10]On 8th January the Recorder dismissed Mr Yardley's counterclaim for misfeasance in public office. He found that the Birmingham City Council and Mr Nott's claim in nuisance was proved. He then adjourned the proceedings for further argument in respect of Birmingham City Council's entitlement to relief claimed and the terms of any injunction sought. The matter came back before the Recorder on 19th February 2003 when he granted an injunction in the terms which appear at pages 68 and 69 of the documents in this appeal.

[11]In the meantime, Mr Yardley sought permission to appeal against the dismissal of his claim. He did not at that stage seek permission to appeal against the findings of nuisance and harassment made against him by the Birmingham City Council. Mr Recorder Tedd QC refused permission. There was an oral application to this court which came before Buxton LJ on 10th April 2003. He rejected the application for permission, stating at paragraph 11 of his judgment:

"In summary, the judge took an enormous amount of care in this case and has gone into all the details in a way that fully explains the basis of his findings, and there are no grounds for the matter being pursued further. I do not grant permission."

[12]Birmingham City Council then embarked on committal proceedings. It was alleged that Mr Yardley had breached the terms of the injunction.

[13]The committal proceedings came on before His Honour Judge McKenna on 18th September 2003. Initially an application was made by Mr Yardley to strike out the committal proceedings. The grounds for the application were that no final order had been made by Mr Recorder Tedd in respect of the claim, the judgment had not been formally handed down or pronounced in open court and the hearing on 19th February 2003 was a fresh hearing. That application was dismissed by the judge, who went on to consider the Birmingham City Council's application for a committal order. Having considered it, he made a committal order in the terms which I have previously stated. He also discharged the injunction made by Mr Recorder Tedd and made a further injunction in terms which varied the order of Mr Recorder Tedd in this way. It restricted Mr Yardley to writing one letter per calendar month to the Assistant Director (Litigation) of the Birmingham City Council, setting out reasonable requests in connection with the services and functions of the Birmingham City Council relevant to him, including that relating to the licensing of hackney carriages, taxis or private hire vehicles and the ownership and driving of the same. Mr Yardley seeks permission to appeal that injunction.

[14]Finally, the matter came back before Mr Recorder Tedd on 2nd April 2004. On that occasion Mr Yardley applied for an order to be made in open court and judgment to be pronounced in open court in respect of the Birmingham City Council's claim, he alleging that that had not been done on 8th January 2003. In dealing with that matter, the Recorder said this in his judgment:

"3. In short terms, the history of the matter is this. I reserved judgment, and gave notice that 'judgment would be handed down' - that being the expression contained in the notice - on 8th January 2003 at this Court. 4. Before 8th January 2003, I had prepared a substantial document, running to 43 pages of typescript, which set out by conclusions, and (in considerable detail) the legal and factual reasoning that led me to those conclusions. 5. On 8th January 2003, I brought to court with me a number of copies of that document. I made copies available to each party in advance of the hearing in order that, in the ordinary way, each of them could have the opportunity of considering the document, and seeing the tenor of the judgment that was to be given, thus giving an opportunity for argument as to the precise form of any order to be made, and to allow correction to any minor matters of factual detail (e.g. case references) which might be inaccurate in the draft."

The Recorder dismissed the application.

[15]He was then asked for permission to appeal his refusal. He gave a further judgment in respect of that matter and, as appears from his judgment, at that stage Mr Yardley raised an allegation of bias. That was based on the fact that Mr Recorder Tedd and counsel for the Birmingham City Council were members of the same chambers. That application for permission was also dismissed by the Recorder. He pointed out that it did not form the basis of any ground of appeal to Buxton LJ when permission was sought to appeal the original orders. He further pointed out in respect of the allegation of bias that he had made it clear before the hearing of the trial that he and counsel for the Birmingham City Council were members of the same chambers.

[16]There are a number of grounds of appeal in the two applications for permission and the appeal against the committal order which either are common to all the applications or overlap with the grounds in each one of them. For the purposes of this judgment I propose to deal with all the grounds compendiously. They form different groups. The first, from which all the applications and the appeal stem, is that there was a procedural irregularity at the hearing on 8th January 2003. It is contended by Mr Yardley that that renders the orders for the injunction and the subsequent committal proceedings invalid and contrary to law.

[17]The nub of Mr Yardley's argument is that the Recorder's judgment was not handed down properly on 8th January 2003. He says it was not in a final version because it was headed "Draft Judgment". It was not signed, it was not sealed and it was not pronounced in open court. Mr Yardley contends and asserts in his skeleton argument that he did not receive the final judgment until 12th March 2003.

[18]In my judgment, the Recorder's judgment dismissing Mr Yardley's application on 2nd April 2004 provides a complete answer to this ground of appeal. The judgment was handed down on 8th January 2003. It was in public. In the judgment handed down by the Recorder he explained his reasons for dismissing Mr Yardley's claims and the counterclaim. The fact that it was headed "Draft" does not, in my view, in any way render it invalid. All judgments, even those handed down, have to be approved by a judge. When approving a judgment, the judge may alter the wording but not of course the decision even if the approval comes after it has been handed down. In this case, as appears from his judgment dismissing the application in April, the Recorder points out that very little in the draft document handed down on 8th January was altered by him subsequently.

[19]Mr Yardley can have been under no misapprehension on 8th January 2003 that the claims of the Birmingham City Council had succeeded and that his counterclaim had been dismissed. The bundle of documents before this court shows (at bundle 3, page 101) that there was a minute of the order for that hearing. In fact the order was not drawn up until 13th March 2003. That appears in bundle 2. However, the fact that it was not actually drawn up by the court until that date does not, in my judgment, render it in any way invalid. As the Recorder pointed out, and as is the case, Mr Yardley sought permission to appeal the dismissal of his counterclaim. He did not make the point then that the judgment had not been properly pronounced.

[20]The next ground of appeal is that the injunction granted by the Recorder on 19th February 2003 was not valid because of the procedural irregularities in respect of the judgment. I have already dealt with that matter and say no more about it. But in addition, Mr Yardley in his skeleton argument alleges that it was granted on the basis of a claim under the Protection from Harassment Act 1997. He contends that that Act was not intended to prevent someone like himself from communicating with a public authority. As a matter of fact that assertion is in error. It is clear from the documents that we have seen that the judge was concerned about that point and as a result, on 19th February, granted the injunction on the basis of nuisance.

[21]Further, Mr Yardley alleges that injunction was too wide in form and in breach of his rights under the European Convention on Human Rights. He relies on Articles 6, 10 and 11.

[22]So far as Article 6 is concerned, he alleges that the original judgment was not pronounced in open court. I have dealt with that. He further alleges that it was in breach of his right of freedom of expression, in that it prevented him from communicating with the council.

[23]It is perfectly clear in the judgment of the Recorder that he was well aware of Mr Yardley's rights under Article 6. At page 34 of the judgment, paragraph 40, there is a passage (which it is unnecessary to recite in full) where the Recorder deals with the question of Mr Yardley's human rights. He adds this:

"It is also important not to lose sight, in a democratic society, of the importance of ready access to, and accountability of, public bodies for the activities of their officers, employees and agents. These two factors have to be given significant weight when considering the Defendant's [that is Mr Yardley] course of conduct, but as I make plain elsewhere in this Judgment, they are heavily outweighed by other important features of the Defendant's conduct."

He then went on to refer to the conduct of Mr Yardley, a summary of which I have already given.

[24]In the final paragraph of his judgment, paragraph 49, he stated as follows:

"The Defendant has made it plain that, unless constrained by injunction, he will resume his course of conduct."

[25]In my judgment, the judge was required to conduct an exercise balancing Mr Yardley's rights against the Birmingham City Council's and Mr Nott's entitlement to be protected against harassment and nuisance. For my part, I see no flaw in the way he carried out that exercise. In my judgment there is no breach of Article 10, nor for that matter any breach of either Article 6 or Article 11.

[26]In addition, in my judgment the order was not too wide. Mr Yardley does not live within the area covered by the Birmingham City Council as a local authority. The injunction restricts him only from communicating with the Environmental Consumer Services Department or the Legal Services Department, save for communications reserved to one named person in the Legal Services Department. He could, as has been pointed out by Mr Smail in his skeleton argument, always have applied for a variation.

[27]The next ground, which is common to all these applications and the appeal, is a claim under the heading of bias. Mr Yardley contends that the Recorder should not have conducted the trial, as I have already indicated, on the basis that he was a member of the same chambers as counsel for the Birmingham City Council, at that stage Mr Edward Beever. He relies on the proposition that no man shall be the judge in his own cause. In his skeleton argument he refers to orders for costs made by Mr Recorder Tedd against him and he alleges that that was in breach of his human rights because, in some way, Mr Recorder Tedd would have had an interest in Mr Beever's fees which were derived from that order for costs.

[28]In my judgment, this ground of appeal can be dealt with shortly. The Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd

[2000] QB 451

dealt with the position of barristers in the same chambers. There it is set out that, unlike solicitors, barristers have no responsibility or detailed knowledge of the affairs of other members of chambers. For that reason, there can be no breach of Article 6.

[29]In any event, in this case the judge at the very outset of the trial pointed out that he and Mr Beever were members of the same chambers and asked if there was any objection to him hearing the case. He records in paragraph 7 of his judgment the following:

"Lest any question be raised as to this at a later stage, I informed all parties in open court, before the proceedings began, that I was born, brought up, and continue to live in Birmingham, and that my education was largely funded by Birmingham City Council, the First Claimant. I also made it plain that Mr Edmund Beever, counsel for the Claimants, and I are members of the same large set of barristers' chambers. Neither party suggested that there was any reason why it would have been inappropriate for me to try this matter, although I expressly gave an opportunity for any objection to be raised."

[30]In the circumstances, in my judgment, having failed at that stage to make any objection, Mr Yardley's right to object has now been waived and the time has long since passed that he can resurrect this as a ground of appeal against the judgment of Mr Recorder Tedd.

[31]As Mr Recorder Tedd was to say in his judgment refusing permission to appeal his dismissal of Mr Yardley's application in April 2004:

"In those circumstances, if I may use blunt language, it is a bit rich of Mr Yardley to raise the point at this stage, when I myself had drawn it to his attention months ago and when he had turned down flat the opportunity to deal with it at any stage."

[32]The final ground of appeal, which relates specifically to the order of His Honour Judge McKenna granting the injunction that I have mentioned on 18th September, is that there were irregularities in the application notice and the documents accompanying the application notice. So far as the documents are concerned which are before this court, for my part I can see no irregularity in respect of any of them. It is for Mr Yardley to show this court that there has been some irregularity. I can see none and I would dismiss his application for permission on that ground.

[33]Perhaps it is also relevant to note that in my judgment that injunction also cannot be said to be too wide or improperly (in breach of his human rights under the European Convention) fetter him in a way which is, as I say, a breach. He does not live in the area and he is entitled to apply to vary the order if he thinks that he is in any way being fettered unlawfully.

[34]In the circumstances, in my judgment there are no merits whatever in the applications for permission or in the appeal against the committal order. I would dismiss the appeal and refuse the applications.

LORD JUSTICE JACOB: I agree.

LORD JUSTICE KENNEDY: I also agree.

[37]So far as the decision of Mr Recorder Tedd is concerned -- that is to say, the substantive decision arrived at in January 2003 -- this court has already considered (in the person of Buxton LJ) whether there was any ground for granting permission to appeal in respect of that decision. Were there any substance in the allegation of bias or a failure to hand down the judgment, that point should have been made to Buxton LJ and it is simply too late to make it now.

[38]So far as the judgment of His Honour Judge McKenna is concerned, that of course has not previously been considered by this court nor has the decision of Mr Recorder Tedd of 2nd April 2004. But for the reasons given by my Lord, I see no reason to do other than dismiss the appeal against the committal order and refuse permission in respect of the other matters.

ORDER

Appeal dismissed and applications for permission to appeal refused with costs, not to be enforced without further order. (Order not part of approved judgment) ______________________________