Messer & Anor v Messer [2004] EWCA Civ 913

Case No B1/2004/0396[2004] EWCA Civ 913
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue Royal Courts of JusticeDate Tuesday, 21 December 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALLER
Between
MRS T MESSER & ANOTHERAppellant-v-
Between
MR MESSERRespondent
(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 APPLICANT APPEARED IN PERSON for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T

LORD JUSTICE WALLER:

[1]This litigation has a very long history, including a history of what at least on the face of it appear to be unfortunate delays. There seems from the history I shall recite great difficulties in the way of Mrs Messer, who is an appellant and an applicant, in succeeding in her aim not to be removed from what she perceives to be her home. But there is one aspect which, it seems to me, she has a right to have considered by a full Court of Appeal as soon as possible.[2]I can explain what I have in mind in the context of dealing more fully with the applications before me. I do not need to trace the complete history. It is sufficient to say that Mr and Mrs Messer were in a relationship which sadly broke down. Mr Messer obtained an order for possession of certain property on the 23rd November 2000 from District Judge Bloomfield. Attempts were made by Mrs Messer, or on her behalf, to appeal that order which failed; and attempts were made to obtain stays of execution of that order which also failed.[3]Ultimately on the 21st March 2002, His Honour Judge Sennett, in the context of dealing with attempts to stave off the affects of the order of District Judge Bloomfield, made a further order for possession; and on this occasion a penal notice was attached. Attempts were also made by Mrs Messer to obtain permission to judicially review certain of the orders. They also failed. So the matter has been before courts on many, many occasions.[4]Over the ensuing months following the 21st March 2002, there have been two threads to the litigation. First, there have been the attempts by Mrs Messer to gain permission to appeal His Honour Judge Sennett's order of the 21st March 2002. And the second thread is attempts by Mr Messer to enforce the order, in particular by an application for committal for contempt and an application for a warrant to execute the order for possession.[5]So far as Mrs Messer's application for permission to appeal is concerned, it had a lengthy and checkered history. It was refused by Harrison J on paper on the 23rd October 2002. It was renewed orally before Moses J on the 2nd December 2002 and apparently refused; but then for reasons which are not apparent, Moses J gave permission to renew the oral application by an order made on the 4th December 2002. The matter was then apparently transferred to London, and that seems to have caused considerable delay.[6]The matter then only came on before Pumfrey J on the 17th June 2003, and he dismissed the application. But it seems that neither party was present, or at least Mrs Messer was not present.[7]An application to set aside that order by Mrs Messer then took a very substantial period to be heard. It was adjourned on the 15th January 2004, and ultimately only heard on the 29th July 2004 when it was dismissed by Lindsay J.[8]In the meanwhile, the application to commit had come on before His Honour Judge Sennett; and on the 19th January 2004, he made an order to commit and also ordered the execution of the warrant for possession. His order to commit was suspended for six months, thus the suspension would expire on the 19th of July 2004.[9]Mrs Messer sought to appeal that order of the 19th January 2004 and applied for a stay pending her appeal. That was by an application, the number of which is 0034 and is dated the 21st January 2004, and is in the white bundle prepared for this appeal at page 17. At this stage, it seems that there may have been some mistake made because the matter came on not before a Court of Appeal, but before Poole J.[10]By CPR 52.1 and the note in particular under 52.1.1 states:
"Section 13 of the Administration of Justice Act 1960 (which is set out in Volume 2, Section 9B) provides: '(1) Subject to the provisions to this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings. (2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant; and the appeal shall lie ... (b) from an order or decision of a County Court ... to the civil division of the Court of Appeal ..."
[11]And by 52.3, it is apparent that where there is an appeal from a decision of a judge in a County Court or the High Court, permission to appeal is not required where that appeal is against a committal order.[12]Poole J recognised the fact that there was a right to appeal the committal order without permission. But he felt able to deal with the stay aspect; and having regard to the history, he at that stage refused a stay.[13]Mrs Messer then attempted to appeal Poole J's order. That is number 0396, dated the 14th February 2004, and is at page 7 of the white bundle before me. She had already sought permission to appeal from Poole J who had refused it, and this is one of the applications before me, though of course many months have now passed.[14]There is a further aspect which has given rise to the second application before me. In the context of the application for permission to appeal the original order of the 21st March 2002, Lindsay J stayed the warrant for possession by orders made on first on the 3rd February 2004 and then on the 6th February 2004. Unfortunately, the application for permission to appeal the March 2002 order took a very long time to come on; and as I have said, it was only finally dealt with at the end of July 2004.[15]In the meanwhile, the period of suspension of the committal order was due to expire on the 19th July. Some application seems to have been made to extend that period; and it seems indeed that some order has been made to extend that period, but I do not have the details.[16]In any event, following the application for permission to appeal the original order being refused by Lindsay J in July 2004, Mrs Messer made a further application to the Court of Appeal, seeking to challenge the committal order of the 19th January 2004. This application was dated the 28th September 2004, and is page 4 of the blue file before me. Of course, if it were the only notice of appeal challenging the committal order, it would be very much out of time and it therefore unsurprisingly seeks an extension of time for appealing the original order of January 2004.[17]Now, what appears from all the above as it seems to me is that there is an appeal against the committal order dated the 19th January 2004, which was issued in time. It is numbered 0034, and was issued on the 21st January 2004. And it was that application which was originally listed before Poole J; it is still outstanding.[18]As I understand the rules, it should in fact have been listed before the Court of Appeal, and indeed it should have come on before the Court of Appeal before now. It should have been listed and heard many months ago, and I do not know why that has not happened.[19]But the right course as at this stage, as it seems to me, is to make sure that that appeal comes on as early as possible and of course comes on with Mr Messer's representatives present; and in that way, Mrs Messer will be able to challenge the committal order as she is entitled to do, and as she is entitled to do without seeking the permission of the Court of Appeal. She must recognise, as she was warned by Poole J, that it is not the underlying orders that she can challenge. The challenge has to be to the committal order itself. She has had many months to clarify any grounds that she has for challenging that committal order, but I shall give her one further opportunity and direct that if she wishes to rely on any further grounds, she must lodge those grounds by the 11th January 2005.[20]The question then arises as to what is the appropriate order in relation to the applications before me. As it seems to me, there is simply no purpose now in the appeal from Poole J's order coming on before the court. That is now all water under the bridge, and I would therefore refuse the application for permission to appeal Poole J's order and dismiss the application which is 0396.[21]It furthermore seems to me that the application 2144 which was very much out of time is simply a duplication of the appeal which Mrs Messer is going to be entitled to bring in any event; and thus it seems to me that in order to keep matters as tidy as possible, the right order in relation to 2144 is to refuse an extension of time and dismiss that application, leaving the appeal which Mrs Messer is entitled to bring in any event. And as I have stressed, that appeal will come on at an early date in January 2005.[22]Now, Mrs Messer will in that context, I know, suggest that there should be a stay in the meanwhile. It seems to me that as Poole J originally recognised, there may be very little merit in Mrs Messer's position, but she is entitled to have the committal order considered by a full Court of Appeal. By my directions, this appeal will only be a short period away and will be considered at the beginning of January; and having regard to the considerable periods of delay already, it would seem to me appropriate that there should be a stay, pending the hearing of that appeal. But I make it quite clear so that Mrs Messer should understand that this appeal will come on in January, and there will be no further delay.[23]I also direct that a transcript of this judgment be prepared and be made available at public expense to Mrs Messer so that she can fully understand all that is said herein, and that a copy of it should also be made available to Mr Messer's advisers so that they can see that the appeal against the committal order is now going to be heard in early January.

Order

Application B1/2004/0396 dismissed. Extention of time for application B1/2004/2144 refused and application dismissed. Stay of execution ordered pending Appeal which is to be heard in January 2005. A transcript of this judgment to be made available at public expense to Mrs Messer. A copy to be sent to Mr Messer's advisers.