Perotti v Watson & Ors [2004] EWCA Civ 269

A3/2003/0322, 0322(A), 0393, 0577, 0906, 0907, 1193, 1626, 1662, 1662(A), 2322[2004] EWCA Civ 269
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(APPLICATIONS FOR PERMISSION TO APPEAL, EXTENSIONS OF TIME, STAYS OF EXECUTION, EXPEDITED HEARINGS AND LEGAL REPRESENTATION)
Venue Royal Courts of JusticeDate Monday, 16th February 2004
Strand
London, WC2
Thursday, 26th February 2004
B E F O R E:
LORD JUSTICE CHADWICK
Between
MR A PEROTTIAppellant-v-
Between
WATSON AND OTHER MATTERSRespondent(GROUP 1 CASES)Respondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON for in person for THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED
J U D G M E N TMonday, 16th February 2004

LORD JUSTICE CHADWICK:

There

[1]are before the court ten applications for permission to appeal; and a further application for review under CPR 52.16(6) of an order varying directions. The applications for permission to appeal were all before this court - Carnwath LJ and myself - on 6th October 2003 for consideration of a preliminary question: namely, whether the applicant, Mr Perotti should, in one way or another, be provided with legal representation to make the applications which he now makes.[2]This court, on 6th October, came to the view that there was nothing in any of the applications for permission to appeal which required the provision of legal representation. The court was confident that it would be possible to grasp the principles involved, and the facts material to those principles, in order to decide whether there was a real prospect of success in any of the appeals which Mr Perotti seeks permission to bring. That remains my view after hearing his applications.[3]The background to these applications is described in my judgment of 6th October 2003; and in earlier judgments in which Mr Perotti has been before this court and the High Court. Put very shortly, Mr Perotti has been engaged in litigation, for the past 12 years, arising from the administration of the estate of his late uncle, Mr Lorenzo Perotti, who died in April 1984. Mr Perotti is a beneficiary named in the will.[4]That litigation commenced with an administration action, in 1992 by Mr Perotti against Mr Kenneth Watson, a solicitor and then a partner in Mackrell Turner Garrett. Mr Watson was attorney administrator for the executor named in the will, Mr Mario Impanni. That litigation came to trial in early 1997. Mr Perotti was successful in part but unsuccessful in substance. In particular, he did not succeed in removing Mr Watson from office as attorney administrator. The judge's decision was upheld in this court in February 2001. Since then, there have been further proceedings including, in particular, professional negligence proceedings against the solicitors and counsel who had represented him in the administration action. Those proceedings came before Lindsay J, in October and November 2002. His judgment dismissing Mr Perotti's claim is, itself, the subject of an application for permission to appeal but that application is not now before me.[5]The other matter which I should mention is that Mr Impanni, the executor named in the will of Mr Lorenzo Perotti died on 5th May 2002. Following his death there was no administrator of this estate until Mr Watson was reappointed under section 116 of the Supreme Court Act 1981 as administrator de bonis non on 24th October 2003 by Park J. Thursday, 26th February 2004

LORD JUSTICE CHADWICK:

[6]This is a continuation of a judgment which I commenced on 16th February 2004, but which had to be interrupted because of power failure in the building. I will resume the judgment at the point at which I begin to deal with applications 2003/0906 and 0907. Applications 2003/0906 and 0907[7]These applications, 2003/0906 and 0907, should be considered first because they include an application for permission to appeal against an extended civil restraint order made against Mr Perotti on 10th April 2003 by Neuberger J. The existence of that order has coloured the approach in subsequent litigation.[8]On 11th February 2003 Mr Watson issued an application for a civil restraint order. It is probable that that application was prompted by an application made by Mr Perotti having sought an order from Rimer J that he reopen the orders made in 1997 in the administration action. Be that as it may, on 17th February 2003 Patten J gave directions for evidence on Mr Watson's application; in particular he directed Mr Perotti to file his evidence in answer to the application by 3rd March 2003.[9]On or about 17th February 2003 a hearing date for the application had been fixed. That date was 10th April 2003. By 3rd March 2003 Mr Perotti had not filed all the evidence that he wished to file. He sought an adjournment from Rimer J before whom, as it happens, he was that day on his own application to reopen the 1997 orders. Rimer J refused to adjourn the application for a civil restraint order; but he extended time for the filing of evidence by Mr Perotti to 28th March 2003.[10]On 28th March 2003 Mr Perotti did serve a witness statement. In that statement he indicated that he intended to make a further witness statement for use on the application. He did not do so. On 9th April 2003 he made application to Blackburne J for an order that the hearing fixed to take place on the following day should be adjourned. The basis of his application, as it appears from the judgment of Blackburne J on 9th April, was that:
"He is overwhelmed with business of one kind or another, most, if not all of which, is concerned with other proceedings in this court, the High Court, and also in the Court of Appeal, none of which is concerned with this application and little of which, as far as I can make out, is concerned with Mr Watson."
[11]Blackburne J dismissed the application for an adjournment. He said this:
"I am not persuaded that Mr Perotti advances a sufficient reason for vacating a hearing date fixed as long ago as 17th February. He submits that his rights under Article 6.1 of the European Convention on Human Rights are engaged in this application. In my judgment, they are not."
[12]Application 2003/0906 is an application for permission to appeal from Blackburne J's order of 9th April 2003 refusing the application to adjourn the hearing for the following day.[13]Immediately following that refusal on 9th April 2003, Mr Perotti wrote to Neuberger J seeking an adjournment of the hearing fixed to take place on 10th April. Paragraph 3 of that letter pointed out that as he was appealing the order of 9th April 2003, "... clearly, I cannot possibly have that application heard before tomorrow!" Strictly, of course, Mr Perotti was not appealing the order of 9th April 2003, he was seeking permission to appeal that order, which permission had been refused him by Blackburne J.[14]The letter of 9th April 2003 indicated that Mr Perotti would not attend on the hearing fixed for 10th April 2003. He raised an objection to the matter being heard by Neuberger J at all and contended that in accordance with Patten J's directions, on 17th February 2003, the matter should be listed before Rimer J "if possible".[15]The hearing of Mr Watson's application for a restraint order came before Neuberger J on 10th April 2003 as listed. Mr Perotti did not appear. Neuberger J refused the application for an adjournment made by the letter of 9th April 2003 and made the restraint order sought. In the course of his judgment he said this:
"3. The background to this matter is long, complicated and melancholy. First, over a long period of time Mr Perotti has made a number of misconceived applications and claims, and has run a number of misconceived appeals, all ultimately arising in some way from the fact that he was one of the beneficiaries under the will of his uncle, Lorenzo Perotti. "4. Secondly, those applications, proceedings, claims and appeals have been conducted in a wild, aggressive and wholly unreasonable manner. Thirdly, those claims, applications, appeals and proceedings have been pursued in an extravagant, irrational and completely unrealistic way. Fourthly, this has led to very substantial liabilities for costs on Mr Perotti, which it would appear he has no conceivable means of meeting; therefore many defendants and respondents have suffered. Above all it is clear that Mr Watson and his partners, and indeed the solicitors acting for him, have suffered. Fifthly, Mr Perotti has made outrageous allegations from time to time against the court. That is not said to indicate that the court is somehow punishing Mr Perotti for this, but merely to emphasise and show how unreasonable and, I am afraid to say, deranged Mr Perotti is. "5. Finally, there have already been three Grepe vLoam orders made against Mr Perotti by Rimer J on 28th November 1997 and 29th March 1999 and Laddie J on 26th July 1999."
[16]In dismissing the application for an adjournment Neuberger J said this:
"7. First, this is an application which was issued on 11th February [2003] and served on Mr Perotti shortly thereafter. That means he has had eight weeks to prepare for today. Secondly, he does not say that he is unable to attend today. It is merely inconvenient and he has not got his case in order. Thirdly, he has frequently, when appearing before me, said that he has not had time to prepare his case, and as with many, indeed most, obsessive litigants, it is abundantly clear that he has all the facts at his fingertips. I am thus unconvinced that he needed more time anyway."
[17]After setting out the history of the litigation in some detail, and in particular referring to the Grepe v Loam orders already made, and the observations of the judges when making those orders, Neuberger J explained why he was making an extended restraint order. He said this at paragraphs 26 and 28 of his judgment:
"26. These are merely some of the statements that have been made about Mr Perotti and his attitude to litigation. In my experience of litigants in person, which is not insignificant, Mr Perotti is second to none in terms of his persistence, and in terms of the aggressiveness rudeness and unreasonableness with which he conducts his applications. I can think of only one other litigant in person who could be said to match him in persistence, and he has now been declared a vexatious litigant. "28. In my judgment, this is as plain a case for making an extended Grepe v Loam order as I have seen. I am quite satisfied that Mr Watson, his partners, their employees, and their legal representatives have the right to expect a degree of protection from this constant, misconceived, unpleasant bombarding by Mr Perotti which inevitably, without the order sought, would lead them into incurring yet further substantial irrecoverable costs. I have no hesitation in granting the order sought."
Application 2003/0907 is for permission to appeal against the order made by Neuberger J on 10th April 2003.[18]The two applications are made by appellant's notices dated 23rd April 2003. The grounds for appeal from the order made by Blackburne J on 9th April 2003 may be summarised as follows:(1) Mr Perotti did not have sufficient time to prepare and serve his evidence in opposition to Mr Watson's application.(2) Article 6.1 of the European Convention on Human Rights guarantees a right to a fair trial which was violated by failing to give sufficient time to prepare and serve such evidence.(3) There was no urgent need to hear Mr Watson's application for an extended restraint order, nor any compelling reason why it should not have been heard later, and(4) Blackburne J had misdirected himself in holding that Mr Perotti had not provided good reasons in support of his application to adjourn.[19]The grounds for appeal against the order of Neuberger J made on 10th April 2003 are, as Mr Perotti acknowledges under section 7C of his appellant's notice, "virtually the same as my grounds cited in my application for PTA the Order of Blackburne J of 9-4-2003." Indeed, the five pages which contain the grounds in application 2003/0906 are annexed in their entirety to application 2003/0907.[20]But there was a further ground framed in these terms:
"The judge was wrong to hear Watson's application because Watson was not entitled to seek to choose his tribunal! At the hearing before Patten J on 17-2-2003 Watson sought to have his application heard not by Rimer J (who is the judge with the greatest familiarity and knowledge of me and of the estate of Lorenzo Perotti deceased, etc and inter alia), but by Neuberger J who is the judge who actually rewarded Watson for having destroyed the estate! That is, he allowed Watson to retain and charge the estate for his fees despite having destroyed his trust estate! In the light of my evidence (my said 3rd witness statement to 17-2-2003) Patten J did not accede to Watson's request that his application be reserved to Neuberger J but ordered that the hearing of Watson's application be heard by Rimer J if possible. As detailed in my other witness statements and evidence in Part C of my application for adjournment (see para 3(1) below) Watson scandalously changed the words to from if possible, to "if available"! The judge had that evidence before him (because I emailed and faxed it to him, amongst other evidence) and, in those circumstances, ought to have adjourned the hearing to come on before Rimer J. In any event, he ought not to have heard it himself and certainly not in my absence given my reasons for my said absence, etc and inter alia."
[21]On its face the appellant's notice in 2003/0907 appears to challenge only Neuberger J's decision to refuse an adjournment of the application which was before him on 10th April 2003, but Mr Perotti has made it clear in his oral submissions in this court that he wishes to challenge also the decision to make an extended civil restraint order against him.[22]In my view, there is no real prospect that the Court of Appeal would think it right to interfere with the orders made on 9th and 10th April 2003. The decision whether or not to grant an adjournment required each judge to exercise a discretion in relation to the proper management of the application which had been made on 11th February 2003. Each judge decided, in the exercise of his discretion, that grounds for an adjournment had not been made out by Mr Perotti. Their judgments contained the reasons which led them to reach that conclusion. It is, in my view, impossible to suggest that either Blackburne J or Neuberger J erred in principle in exercising their discretion to refuse an adjournment in the way that they did. There is no basis upon which this court could properly interfere with that exercise of discretion.[23]I am satisfied also that there is no real prospect of a successful appeal against the extended restraint order made by Neuberger J on 10th April 2003. As his full and careful judgment demonstrates, there were ample grounds upon which he could properly reach the conclusion that an extended restraint order was required in this case. As he said, "This is as plain a case for making an extended Grepe v Loam order as I have seen." The judge had in mind, correctly, that three Grepe v Loam orders - now more properly described as civil restraint orders - had already been made against Mr Perotti. For those reasons I refuse the applications for permission to appeal made under 2003/0906 and 0907. Application 2003/2322[24]As I have said, Mr Mario Impanni, the executor named in the will of Mr Lorenzo Perotti, died on 20th May 2002. The effect was to bring to an end the appointment of Mr Watson as attorney administrator of the estate of Mr Lorenzo Perotti. On 24th March 2003, Mr Watson applied in the Family Division for an order that he be appointed as administrator of the estate of Lorenzo Perotti, under section 116 of the Supreme Court Act 1981.[25]That application was supported by an affidavit of a solicitor in the firm Barlow Lyde & Gilbert. It was acknowledged that Mr Watson was not a person who would normally be entitled to a grant of administration under the rules. But, as the affidavit went on to point out, Mr Watson was entitled to be indemnified out of the estate in respect of liabilities for his costs incurred in the administration, including, in particular, the costs of the administration proceedings in respect of which orders had been made by the court. It was said that those costs far exceeded the undistributed assets of the estate and so Mr Watson was the only person with any real interest in the administration of the estate. It was pointed out, also, that Mr Perotti was himself personally liable for the costs in question - so that the right of indemnity against the estate extended only to any balance of such costs which could not be recovered from Mr Perotti - but that, as Mr Perotti appeared unable to pay a substantial part of those costs, the indemnity would exhaust the assets of the estate.[26]That application came before a district judge sitting in the Principal Registry of the Family Division on 6th and 7th May 2003. At the request of Mr Watson he directed that the application, which was opposed by Mr Perotti, be transferred to the Chancery Division. An appeal against that part of his order was dismissed by Holman J on 6th June 2003. Permission to appeal from the order of Holman J was refused by this court in, I think, October 2003. Mr Watson's application under section 116(1) of the Supreme Court Act 1981 came before Park J on 24th October 2003. By that date Mr Perotti had issued a counter application, himself seeking a grant of administration.[27]On 24th October 2003 Park J refused Mr Perotti's application for a grant of administration and made an order appointing Mr Watson as administrator of the estate of Mr Lorenzo Perotti. His reasons appear from paragraphs 22 to 26 of his judgment [2003] EWHC 2533 Chancery. He said this:
"22. I think it is appropriate to begin by considering Mr Perotti's application to be appointed as administrator. I am sorry to have to say this, particularly with Mr Perotti listening as he is courteously doing to me saying it, but given the history of Mr Perotti's activities over the years in connection with this matter, I do not think there is any possibility that a judge with a discretion in the matter could appoint him as the administrator of this estate. He can certainly be appointed as executor of an estate by a testator who nominates him as such in a will. Mr Perotti has reminded me that he is the nominated executor of two wills of other members of his family. However, the present application is a matter of judicial discretion. I cannot believe that I could exercise my discretion in his favour. I do not want to subject him to the indignity of having to listen to me giving a detailed account of the sort of activities in the history of this estate to which I refer. Mr Perotti does not himself think that there was anything wrong with them, but he does know what the various matters are which I have in mind. Many of them are described in a judgment delivered by Mr Justice Neuberger on 10th April 2003. By that judgment Mr Justice Neuberger made an "
Ebert v Venvil" order against Mr Perotti. Mr Perotti tells me that he is appealing against Mr Justice Neuberger's order, but it is presently the order in force and to my mind no judge could realistically be expected to appoint as the administrator of an estate a person against whom an Ebert v Venvil order is in force, at least if there is an alternative person willing to be appointed. "24. I turn from Mr Perotti to Mr Watson. He is the other applicant for appointment. It is quite true that in the judgment of Mr Justice Rimer, delivered on 18th April 1997, he was critical of Mr Watson in a number of respects. Mr Perotti is very critical of Mr Watson and has made that abundantly clear to me in his address this afternoon. However, it has to be pointed out that, critical though Mr Justice Rimer was of Mr Watson, he did not remove Mr Watson from office. His decision was affirmed by the Court of Appeal. Mr Perotti says that Mr Justice Rimer left Mr Watson in office because Mr Watson would thereby be able to carry on and complete the administration of the estate, being the person who knew about it. Mr Perotti complains that Mr Watson has not completed the administration of the estate, and has indeed made very little progress. Factually that is true, but the explanation is - although I know that Mr Perotti will not accept it - that Mr Watson has been bombarded by a constant succession of further applications and actions brought by Mr Perotti, and has had no realistic opportunity to get on and complete the administration of the estate. "25. There is the further point that, as I have explained earlier, by now the realistic position is that only Mr Watson - being a creditor of the estate for a great deal more money or value than it has - is the only person with any real interest in it. That being so, I am not impressed by objections to the appointment of Mr Watson on the ground that in some respects his earlier conduct did not find favour from Mr Justice Rimer. All of that, unfortunately for Mr Perotti, is over now. "26. The position is, therefore, that I am not prepared to appoint Mr Perotti. The only other person who could be appointed is Mr Watson. In all the circumstances, and above all in the circumstances that Mr Watson is owed by the estate a great deal more than the value of the estate's assets, I see no objection to the appointment of Mr Watson. I shall therefore appoint him as administrator." That decision is reflected in the order made by Park J on 24th October 2003. It is from that order that Mr Perotti seeks permission to appeal under reference 2003/2322.[28]The appellant's notice is filed on 29th October 2003. The grounds for appeal, set out in section 7 to that notice, extend over nine pages. It is, I think, sufficient to summarise those grounds as follows:(1) that Park J misdirected himself on the law, legal principles, evidence and facts, in particular by failing to give adequate weight to Rimer J's 1997 judgment and to take adequate account of all the interests of the beneficiaries;(2) that the appeal would raise important points of principle, in particular points as to the public interest in administration of justice and the absence of judicial bias;(3) that Park J denied Mr Perotti a fair trial in failing to assist him as to the law;(4) that, in some way, the jurisdiction identified by this court in Taylor v Lawrence is engaged;(5) that Park J erred in holding that Mr Watson was the only person with an interest in the estate.[29]Section 116(1) of the Supreme Court Act 1981 is in these terms:
"If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may, in its discretion appoint as administrator such person as it thinks expedient."
[30]As the judge pointed out, there need to be special circumstances before the discretion under that statutory provision arises. The judge observed that this particular estate was a prime example of one which exhibited special circumstances. In his view the contrary could not seriously be suggested and so he had a discretion to exercise.[31]I am satisfied that there is no real prospect of success on an appeal against the order made by Park J on 24th October 2003. As the judge observed, it was a matter for his discretion whether or not to make an order under section 116(1) of the 1981 Act. He decided that it would not be a proper exercise of discretion to make a grant to Mr Perotti, in the circumstances that Mr Perotti was the subject of the extended restraint order made by Neuberger J on 10th April 2003. Permission to appeal from Neuberger J's order has been refused, so Mr Perotti remains under that restraint.[32]There is no basis upon which this court could interfere with Park J's decision not to grant administration to Mr Perotti. Nor, in the peculiar circumstances of this case, is there any basis upon which this court could interfere with the judge's decision that administration should be granted to Mr Watson as the only person with any real interest in the remaining assets in this estate. For those reasons I refuse the application for permission to appeal from Park J's order of 24th October 2003. Applications 2003/1662 and 1662A[33]As I have indicated, Mr Watson obtained orders for costs against Mr Perotti in the course of the administration action. On 11th August 1999 and 17th July 2000, Mr Watson obtained charging orders to secure that liability for costs over two properties, one of which was known as 43A Ridgmount Gardens, London, WC1, and in which Mr Perotti had his home. On 25th September 2001 Master Moncaster, sitting in the Chancery Division, made an order for the sale of that property, 43A Ridgmount Gardens. On 24th May 2002 possession of that property was obtained from Mr Perotti. By July 2003 the property had still not been sold. It was Mr Perotti's wish that it should not be sold pending the determination of the various applications for permission to appeal which he had made to this court and in particular his application for the appointment of legal representatives to assist him.[34]Those applications were then pending and due for hearing by this court at the beginning of October 2003. But by July 2003 Mr Perotti was, of course, subject to the extended restraint order which had been made by Neuberger J on 10th April 2003. In those circumstances Mr Perotti applied to Rimer J on 22nd July 2003 for permission to issue an application seeking an order for a stay of the sale of 43A Ridgmount Gardens pending final disposal of his then pending applications to the Court of Appeal.[35]That application was made by pro forma application notice dated 21st July 2003. The principal grounds were that Mr Perotti expected to succeed on an appeal from orders made by Lindsay J in the professional negligence action and thereby recover approximately £2 million from the defendants in that action, and that he expected to reopen perfected appeals in the administration action under the principle identified in Taylor v Lawrence and recover a further £700,000 as a result of that success.[36]Those recoveries, he suggested, would enable him to pay off any monies owing, but he would then not be compensated for the loss of his home; which as he said was of particular significance to him. On 22nd July 2003 Rimer J refused the application for permission, under the extended civil restraint order, for the reason expressed in a written note that: "The application disclosed no arguable basis for the grant of any such stay".[37]By an appellant's notice, filed on 23rd July 2003 under reference 2003/1662, Mr Perotti sought permission to appeal from the order 22nd July 2003. In his grounds of appeal he pointed out that the Court of Appeal had listed for hearing, on 6th October 2003, his application to be provided with legal representation in connection with all the applications for permission to appeal which were then pending. At paragraph 4 of the grounds he set out his main ground of appeal in these terms:
"... where the Court of Appeal has taken the matter seriously, by seeking the assistance of... [an advocate to the court], then it is unreasonable for me to suffer prejudice in applications where I am in person pending the said decision of the Court of Appeal. In particular, Rimer J required of me to do what it is absolutely known I cannot do! ie to convince him that I have good prospects of winning my appeal from the trial judge's order, Lindsay J! That is what my lawyers will do once instructed, etc and inter alia!"
[38]On 24th July 2003 I granted a stay of the sale until after the hearing on 6th October 2003. I gave directions that the application for permission to appeal from the order of 22nd July 2003 be heard, on notice, before two members of this court, with the appeal to follow if permission were granted.[39]As I say, I stayed the sale of 43A Ridgmount Gardens pending the hearing of that application. I did so on the basis that if the extended civil restraint order of 10th April 2003 were set aside, then permission to issue the application for a stay of sale would no longer be required, so that the appeal against Rimer J's refusal of permission on 22nd July 2003 would then fall away. Mr Perotti would be free to seek the stay that he wanted.[40]Following the hearing on 6th October 2003 - at which this court decided that the circumstances were not such as to require that Mr Perotti be provided with legal representation - a further stay of the sale of 43A Ridgmount Gardens was granted until the application for permission to appeal from the order of 22nd July 2003 had been determined.[41]On 6th January 2004 I varied my order of 23rd July 2003 by directing that the application under 2003/1662 be heard by a single Lord Justice following the hearing of applications 2003/0906 and 0907, and at the same hearing. I did so because it had by then become clear that, unless permission to appeal were granted under 2003/0906 and 0907 the application for permission under 2003/1662 would need to be heard; and, until permission had been granted on 2003/1662 there was no reason to expose the potential respondents to that appeal to the risk of further irrecoverable costs. On 23rd January 2004 I amended the order of 6th January 2004 by giving liberty to both parties to apply to set aside, vary or stay that order.[42]The further application, to which I referred at the outset of this judgment, is for review under CPR 52.16(6) of the directions given on 6th January 2004. That application is made by notice dated 6th February 2004. I can address that application for review, made under reference 2003/1662A, shortly. If permission to appeal is granted on the application 2003/1662 then, clearly, the stay will be continued, subject to further representations by or on behalf of Mr Watson, until the appeal against the refusal to grant permission on 22nd June 2003 has been heard. But, if permission to appeal is not granted, then the position is that Mr Perotti does not have permission to make an application for a stay - as required by the extended restraint order of 10th April 2003 - and there is no longer any basis for the continued imposition of a stay. So, until a decision is made as to the grant or refusal of permission to appeal under 2003/1662, there is no need for the respondents to attend with the consequent cost implications.[43]In those circumstances I thought it right to vary the previous directions given on 24th July 2003, as the court had power to do under CPR 3.3(4). Accordingly, the order of 6th January 2004 as amended on 23rd January 2004 is confirmed.[44]I turn therefore to consider the application for permission to appeal from the refusal, on 22nd July 2003, to grant permission to issue an application for a stay of the sale of 43A Ridgmount Gardens. In my view, Rimer J was plainly correct, on the material before him on 22nd July 2003, to take the view that there was no basis upon which he could then hold that an application for a stay of the order for sale had any prospect of success; so that permission to make such an application, notwithstanding the existence of an extended civil restraint order, should not be granted. The judge was, in effect, being asked to accept Mr Perotti's bare assertion that he was bound to succeed in obtaining permission to appeal, and to succeed on an appeal, from the order made by Lindsay J in January 2003 in the professional negligence action. There is, in my view, no real prospect of a successful appeal against that refusal of permission.[45]Nevertheless, the position now is that Mr Perotti's application for permission to appeal from the order made by Lindsay J on 30th January 2003, will be heard by this court within the next few weeks. In those circumstances it seems to me appropriate to extend the existing stay of the sale until after that application has been heard. If Mr Perotti were to obtain permission to appeal from the order of Lindsay J then, as it seems to me, it would plainly be right that he should have another opportunity to seek permission to apply for a stay of the order for sale of 43A Ridgmount Gardens, in what would then be a situation which was materially different from that which Rimer J had to consider in July 2003.[46]I will give liberty to Mr Watson to apply to discharge this temporary stay on 48 hours' notice. Subject to any such application the stay will continue until the disposal of Mr Perotti's application for permission to appeal against Lindsay J's order of 30th January 2003, and will then, unless extended by a further order made by the court hearing that application, automatically determine. Application 2003/1626[47]As I have said, possession of 43A Ridgmount Gardens was obtained on 24th May 2002. On 30th May 2002 Mr Perotti made application, under Part VII of the Housing Act 1996, for accommodation on the grounds of homelessness. On 26th July 2002 the local housing authority, London Borough of Camden, determined that he was not a person in priority need. Mr Perotti sought review of that decision, as he was entitled to do under section 202 of the 1996 Act. On 30th October 2002 that decision was confirmed, on review, by the local authority.[48]Mr Perotti appealed to the County Court under section 204 of that Act. That appeal was dismissed by His Honour Judge Green QC sitting at the Central London County Court on 1st July 2003. The judge explained that there were six grounds advanced in support of the appeal before him:(1) that the review procedure contravened Article 6 of the European Convention on Human Rights;(2) that the local authority had acted unfairly by not giving Mr Perotti the opportunity to comment on the District Medical Officer's report;(3) that the local authority had failed to take account of relevant matters, namely, (a) Mr Perotti's assertion that he would be at risk of serious cochlear damage if made homeless; (b) that his back problem would worsen if he was homeless; (c) that his psoriasis would be exacerbated if homeless;(4) that the local authority failed to provide adequate reasons for its decision;(5) that the local authority had applied the wrong tests and(6) that its decision was Wednesbury unreasonable.[49]The judge pointed out that the challenge under Article 6 of the Convention was no longer open to Mr Perotti, in the light of the decision in Begum v Tower Hamlets [2003] EWCA Civil 239. He went carefully through the remaining grounds and held that they were not made out. It is, of course, important to appreciate that an appeal to the County Court, under section 204 of the Housing Act 1996, is confined to an appeal on a point of law.[50]Mr Perotti seeks permission to appeal from the order of 1st July 2003. That application is made under reference 2003/1626. An appeal in this case would be a second appeal to which section 55(1) of the Access to Justice Act 1999 and CPR 52.13 apply. Permission cannot be granted unless the appeal would raise some important point of principle or practice, or there is some other compelling reason why this court should entertain a second appeal.[51]I turn, therefore, to the appellant's notice which was filed on 14th July 2003. The grounds of appeal set out in section 7 of that notice disclosed no point of principle or practice which requires consideration by the Court of Appeal on a second appeal. Nor do those grounds provide any other compelling reason for a second appeal. In effect Mr Perotti asserts that the council failed to give proper consideration to the medical evidence on which he wished to rely, and that the judge refused to allow him to adduce further medical evidence at the hearing on 1st July. Those grounds do not satisfy the statutory test. This application for permission must be refused. Applications 2003/0322 and 0322A and 2003/1193[52]These applications arise in proceedings brought by Mr Perotti against solicitors, Messrs Barlow Lyde & Gilbert, Mr Watson, Mr Christopher Semken, a member of the bar, and two other firms of solicitors. It is said by the defendants to those proceedings that Mr Perotti is seeking to re-litigate against them matters which have already been determined in earlier proceedings.[53]On 13th August 2002 the defendants applied to the Master for an order that the action should be struck out. On 18th December 2002 Mr Perotti issued a cross-application. On 20th January 2003 Master Leslie refused the cross-application and struck out the claim against the first to fourth defendants. He refused permission to appeal and he refused Mr Perotti's application that a transcript of the judgment be provided to him at public expense.[54]On 24th January 2003 Mr Perotti filed an appellant's notice in the High Court. The grounds of appeal set out in section 7 of that notice are in these terms:
"The Master refused to allow transcripts of the three judgments at public expense. In the circumstances, I will lodge my grounds once I have received the transcripts of the said three judgments."
In section 10 of that appellant's notice Mr Perotti made application for an order that he have transcripts at public expense of the three judgments given by Mr Master Leslie on 20th January 2003.[55]On 3rd February 2003 the application for the provision of transcripts of the judgments at public expense was refused by Gross J. The reasons given in his written note were, "No or no good grounds have been supplied in support of this application".[56]Mr Perotti seeks permission to appeal to this court from that refusal by Gross J to provide transcripts. The application is made in the appellant's notice in 2003/0322 filed on 17th February 2003. Paragraph 1 in the grounds of appeal asserts that:
"Without the transcripts of the said several judgments I am denied effective access to the courts because without the same I am unable to provide my grounds for appeal from the Order of Master Leslie herein. Therefore, refusing to grant me transcripts of the several judgments at public expense violates my rights pursuant to the common law and/or Article 6-1... of the European Convention on Human Rights..."
[57]The need for a note of a judgment is recognised in paragraph 5.12 of the Practice Direction, supplemental to CPR Part 52. Where there is an approved transcript of the judgment that should accompany the appellant's notice. If there is no officially recorded judgment other documents will be acceptable. Those include a note of the judgment prepared by a party's advocate. Note 52PD-024 is in these terms:
"When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make his/her note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs."
[58]The power to order a transcript at public expense is conferred by paragraph 5.17 of the Practice Direction:
"Where the lower court or the appeal court is satisfied... that the cost of a transcript would be an excessive burden the court may certify that the cost of obtaining one official transcript should be borne at public expense."
That is plainly a discretionary power.[59]In the present case there is nothing to indicate whether Mr Perotti's application to Gross J on 3rd February 2003 disclosed:(1) whether the judgment of Master Leslie had been recorded;(2) whether, if so, Mr Perotti's inability to obtain a transcript was due to his financial circumstances;(3) whether counsel for the defendants had prepared a note of the judgment; or(4) whether Mr Perotti had sought a copy of counsel's note; and, if so,(5) whether that request had been refused. In those circumstances Gross J was plainly entitled to take the view, expressed in his note of 3rd February 2000, that no grounds had been supplied to him to support the application for an order that transcripts be provided at public expense.[60]It is perhaps pertinent to note that in his grounds of appeal to this court, Mr Perotti asserts, under paragraph 5 of section 7, that:
"Under no circumstances whatsoever will I consider using any purported "notes of judgment" provided by the Respondents' counsel as I regard all the defendants and all their legal representatives as unmitigated criminals who will have no qualms at "editing" the said notes in their favour thereby seeking to pervert the course of justice!"
If that were Mr Perotti's stance before Gross J it is perhaps not at all surprising that the judge thought that the application for the provision of a transcript at public expense had not been made out.[61]In my view an appeal against the order made by Gross J on 3rd February 2003 would have no prospect of success and the application under 2003/0322 must be refused.[62]In the course of the application for permission to appeal under 2003/0322, the Master of the Civil Appeal Office, Master Venne, made an order on 2nd April 2003 for Mr Perotti to file the documents required by the Court of Appeal practice direction, with the sanction that if he failed to do so his appeal would be struck out. On 4th April 2003 Mr Perotti sought permission to appeal from that order. Strictly, that application was made, as it seems to me, under CPR 52.16(5), and should be treated as an application for review of the decision of one of this court's officers.[63]As I have said, the direction made by Master Venne was that, in the event of failure to file the requisite documents, the application under 2003/0322 should be struck out. In the event that did not happen; the application 2003/0322 has been heard; and so the application for review under reference 2003/0322A has been overtaken by events. Mr Perotti's failure to comply with the direction of Master Venne has not in fact been the subject of any sanction. Accordingly, the application under reference 0322A is also dismissed.[64]On 15th May 2003 Mr Perotti made an application to a judge in the Queen's Bench Division for an order that the proceedings against the fifth defendant in the same action, Biddle & Co, a firm of solicitors, be stayed pending his appeals from the orders of Master Leslie. That application came before Hooper J. He refused it for the reasons set out in his judgment:
"It seems to me that it would be quite impossible to consider giving the relief claimed in this application unless the defendant was put on notice of the date and time of the hearing. Mr Perotti tells me that he had e-mail communication with Mr Biddle yesterday. But that clearly does not satisfy the requirements of the CPR and I have not in any event seen the e-mail."
Hooper J adjourned the application with a direction that it be listed in the ordinary way and that Mr Perotti give notice of the hearing to Biddle & Co.[65]By an appellant's notice filed on 28th May 2003, under reference 2003/1193, Mr Perotti seeks permission to appeal from that order. As it seems to me, the order of Hooper J has now been overtaken by events; in that the period of stay which Mr Perotti sought, that is until his application to be provided with legal representation had been heard by this court, came to an end on 6th October 2003.[66]Be that as it may, the order was one which the judge was plainly entitled to make in the circumstances and no appeal from that order would have any prospect of success. That application for permission to appeal must also be refused. Application 2003/0393[67]This is an application in proceedings brought by Mr Perotti against Arnander Irvine & Zeitman, a firm of solicitors, Woolwich PLC, and two members of the bar retained by those solicitors to advise Mr Perotti in relation to an appeal listed to be heard in this court on 13th November 2000.[68]After a hearing on 29th and 30th July 2002, Master Moncaster gave summary judgment for the defendants on the claims against them. Mr Perotti sought permission to appeal from the judge. That application was refused on paper on 6th December 2002, and was refused on an oral application before Hart J on 7th February 2003. He refused permission to appeal. He also refused to order that Mr Perotti have legal representation for the appeals which he wished to bring and refused to order that the application for permission to appeal be referred to the Court of Appeal. On 21st February 2003 Mr Perotti filed an appellant's notice, under reference 2003/0393, seeking permission to appeal against so much of the order of 7th February 2003 as refused to grant him legal representation.[69]Hart J summarised the submissions made to him in the following paragraph of his judgment:
"Mr Perotti has submitted to me that while there may be no specific provision to which he, or indeed I, can point which would enable the court to equip him with legal representation, the demands of justice are such that a way should be found. He has referred me to a number of decisions of the European Court of Human Rights in which that court has, in particular circumstances, regarded the absence of legal representation as an interference with the human rights of the complainant."
[70]The judge then went on to observe that Mr Perotti had urged him to grant permission to appeal to this court on the basis that, in those circumstances, the Citizens' Advice Bureau at the Royal Courts of Justice would automatically provide legal representation for him. So, it was submitted, permission to appeal should be granted simply to ensure that by that route Mr Perotti would have legal representation. The judge rejected that submission:
"It does not seem to me right to exercise my power to grant permission to appeal for that purpose. The function of requiring permission to appeal is, in part, to protect the respondents to appeals from being harassed with the need to respond to cases that have no substance in them. That function would be entirely subverted if the application process were simply to be used as a means of ensuring that the person who would otherwise be a litigant in person obtains free representation organised by the Citizens Advice Bureau. It seems to me that the court's duty, when considering an application for permission to appeal, is to deal with it on its merits and to grant permission to appeal if the appeal has a real prospect of success, or there is some other compelling reason for granting permission. In general, the desirability of parties being legally represented cannot, by itself, constitute such a reason. "
Accordingly, I remain of the view that the court has no applicable power to ensure that Mr Perotti has legal representation for the purposes either of his application for permission to appeal, or for the appeal itself, should I come to the conclusion that permission should be granted."[71]The arguments advanced before Hart J on that occasion were advanced again on 6th October 2003 on the applications to this court. They were addressed in the judgments which we gave on that day. It is sufficient to say that there is nothing in those judgments which cast the least doubt on the approach taken by Hart J on 7th February 2003. There is no prospect of success of an appeal against Hart J's refusal to order that legal representation be provided for Mr Perotti. His application is misconceived and must be refused. Application 2003/0577 This is an application against the refusal of Rimer J to reopen his judgment and orders made in 1997 in the original administration action. As I have said, that action was commenced in 1992 and sought the removal of Mr Watson as Attorney Administrator of Mr Perotti's uncle, Mr Lorenzo Perotti. The trial had occupied some 20 days in early 1997. The result was, as Rimer J put it in his judgment, that Mr Perotti was substantially, although not wholly, unsuccessful. In particular, he was not successful in obtaining removal of Mr Watson as Attorney Administrator. Mr Perotti's appeal against Rimer J's order of 26th March 1997 was dismissed by this court on an appeal on 2nd February 2001.[72]As I have also said, Mr Mario Impanni, the executor named in Mr Lorenzo Perotti's will, died on 22nd May 2002, so that Mr Watson thereupon ceased to be Attorney Administrator. On 24th and 25th February 2003 Mr Perotti made two applications. They were, in effect, applications for the order of 26th March 1997, and a subsequent order made on 18th April 1997, to be reopened in the changed circumstances. Rimer J held that he had no jurisdiction to reopen a perfected order. In particular he held that this was not a case which fell within the exceptional jurisdiction identified by this court in Taylor v Lawrence [2002] 2 All E.R. 353, for the reason that when deciding the administration action he, Rimer J, had not been sitting in an appellate capacity. He pointed out that the position had been different in Seray-Wurie v Hackney London BoroughCouncil [2002] 3 All E.R. 448, a decision on which Mr Perotti placed reliance. He said this:
"The decision in Taylor shows that in exceptional circumstances the Court of Appeal has a jurisdiction to re-open its decisions. It does not decide that the High Court sitting at first instance does, so that it is not an authority which provides Mr Perotti with any help in his argument that I can, and should, now re-open my 1997 order. On the contrary, all the... [authorities are] against the proposition that I have any jurisdiction to do so. Nor does the Seray-Wurie decision help Mr~Perotti either. Consistently with the principle established in Taylor v Lawrence, the Seray-Wurie case decided that, in like exceptional circumstances, the High Court, when sitting in an appellate capacity has a jurisdiction to reopen its orders. But I was not sitting in an appellate capacity when trying and deciding Mr Perotti's 1992 action."
Then, after setting out what he described as the key passage in the judgment of Brooke LJ in Seray-Wurie v HackneyLondon Borough Council,

the judge went on to say this:

"It is, therefore, perfectly clear that the Court of Appeal in that case was not deciding that the High Court has any general jurisdiction to re-open its first instance decisions. It was deciding no more than that, in its appellate capacity, it has a like jurisdiction in exceptional circumstances as does the Court of Appeal to re-open its appellate decisions."
He expressed his conclusion in the following paragraph:
"I accordingly conclude, in accordance with long established authority, that I simply have no jurisdiction to re-open my 1997 order. In any event, the application appears to me to be an absurd one. Mr Perotti's appeal to the Court of Appeal sought to challenge my orders relating to the claim... [to the] removal of Mr Watson, the Italian loan and the costs. All those challenges failed, the Court of Appeal refused leave to appeal to the House of Lords, and the House of Lords subsequently also dismissed a petition for leave."
The judge pointed out that on 20th May 2002 the Court of Appeal had itself refused a further application by Mr Perotti to reopen the appeal before it.[73]In my view this application for permission to appeal is wholly misconceived and must be refused. There is no prospect that the Court of Appeal would reverse the decision of Rimer J not to reopen his earlier judgment. Conclusion[74]In the result, therefore, each of Mr Perotti's applications is refused. There is a limited continuation of the order staying the sale of 43A Ridgmount Gardens over the short period of a few weeks until his application for permission to appeal from the order of Lindsay J, made on 30th January 2003 in the negligence proceedings, has been heard, with liberty to apply. The Future[75]I should not leave the matter without mentioning that, on 23rd February 2004, the Civil Appeals Office notified Mr Perotti that at the hearing of what may be described as the "Group 2 applications" for permission to appeal on 16th March 2004, the court might wish to consider whether to make any further order restraining his litigious activities in the Court of Appeal and if so in what terms that order should be made. That is a course of which I had intended to give notice in this judgment.[76]The 11 applications which I have addressed in my judgment so far have all been applications which can properly be described as totally devoid of merit. The extended civil restraint order made on 10th April 2003 was made in order to protect the defendants against whom Mr Perotti wishes to litigate from applications which are devoid of merit. It is plain that Mr Perotti's reaction to any decision which is made against him is, automatically, to serve a notice of appeal without, it seems, giving any proper thought to whether the appeal has any proper basis in fact or law.[77]In those circumstances it must be expected that any decision of a judge refusing Mr Perotti permission to issue further proceedings or make further applications will be the subject of an application to appeal by Mr Perotti; so that the effect of the extended civil restraint order in its present form will be that there will be a stream of applications to this court seeking to challenge the decisions made by the judge of the High Court under that order.[78]That defeats the purpose of the order. It has the effect that the time of this court - as well as the time of a judge of the High Court - is occupied with applications which may have no merit. The time has come, as it seems to me, to consider whether the extended civil restraint order should be varied so as to provide that a decision of the judge of the High Court refusing permission under that order should be final and not subject to any further appeal unless the judge himself gives permission to appeal.[79]I do not think that an appropriate order to make today for two reasons. First, because Mr Perotti needs to have time to respond to the notice given to him by the letter of 23rd February 2004; and, second, because the question whether or not to make such an order ought to be considered in the context of all the present pending applications for permission to appeal, including those which will be heard on 16th March 2004. But Mr Perotti is now on notice that that is a matter which this court will want to consider in March 2004.[80]In the meantime, however, I direct that the Civil Appeals Office do not accept further appellant's notices from Mr Perotti until after the hearing on 16th March 2004.

Order

Applications refused; permission to appeal refused; transcript of judgment to be made available to applicant at public expense if unable to obtain it from website.

Cited in 5 later judgments