Wilkes v Ballam Delaney Hunt (a firm) [2005] EWCA Civ 1104

Case No B4/2004/0913[2005] EWCA Civ 1104
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE STEWART QC)
Venue Royal Courts of JusticeDate Thursday, 18th August 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LLOYD
Between
IAN PAUL WILKESApplicant-v-
Between
BALLAM DELANEY HUNTRespondent
(Computer-Aided Transcript of the Palantype 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 on his own behalfMISS AMANDA SAVAGE (instructed by Eversheds) appeared for Respondent
J U D G M E N T

LORD JUSTICE LLOYD:

This

[1]is an application by Dr Ian Paul Wilkes for permission to appeal against an order of His Honour Judge Stewart QC. There seems to be some doubt whether it was made on 14th or 15th July 2004, by which he dismissed an appeal of Dr Wilkes against an order of a District Judge made on 10th February 2004 by which the District Judge struck out, as showing no reasonable cause of action, a claim form which Dr Wilkes had issued on 11th December 2003 against two firms of solicitors, the first of them being Ballam Delaney Hunt, solicitors of Birkenhead, and the second being Eversheds LLP, who are in fact the solicitors acting for Ballam Delaney Hunt.[2]Judge Stewart, who is the designated civil judge in Merseyside, had dismissed the application for permission to appeal without a hearing on 23rd March 2003. However Dr Wilkes applied for the matter to be the subject of a hearing, and so it was in July. At that stage, as I say, the judge dismissed the appeal. He made an order for costs ordering Dr Wilkes to pay some £4,200-odd to the respondents in respect of costs, and the order continues as follows:
"Upon Dr Wilkes' assurance to the Court that he will not commence any fresh proceedings against Susan Delaney or Ballam Delaney Hunt without the permission of His Honour Judge Stewart QC arising out of their conduct of the family financial proceedings on behalf of his ex-wife Senora Martinez Rojas which culminated in the Order of District Judge Peake on 18th February 2004 IT IS ORDERED THAT There be no order on the Defendants/Respondents application for an Extended Civil Restraint Order against Dr Wilkes."
[3]The matter arises, as the terms of that order suggest, from matrimonial proceedings between Dr Wilkes and his former wife in which Ballam Delaney Hunt acted for her. These are not the only such proceedings that have been issued. On 2nd October 2003 Dr Wilkes issued a claim form in LV325378 in the Liverpool County Court. On 20th February 2004 he issued claim forms in the Runcorn County Court, 4RC00167 and 168 against his former wife and against Miss Delaney. On 28th May 2004, again in Runcorn, he issued 4RC004481 against Miss Delaney alleging false imprisonment.[4]In July 2004 Judge Stewart had before him a striking-out application in the claim LV325378 which he granted, the appeal in the present proceedings LV38342 which he dismissed, and applications for permission to appeal against striking out in RC00167 and 168 which he refused.[5]Since that order and since the giving of that assurance by Dr Wilkes to the court, Dr Wilkes has not issued any further claim forms, at any rate against any party relevant to these proceedings. He did in December make some rather strange applications against Eversheds for the issue of invoices in respect of costs in the two cases originally commenced in the Liverpool County Court which were struck out. But that is by way of general background history.[6]Dr Wilkes, who appears in person before me, as he has throughout so far as I am aware, tells me that he asked Judge Stewart for permission to bring this appeal at some point in August 2004. That was not I think to do with the assurance that he gave to the court, although it may be that he thought it was something to do with that, but more to do with the general requirement of permission to appeal. Judge Stewart, however, explained to him, as is the case, that because this is a second appeal it was not open to Judge Stewart to grant permission. Only the Court of Appeal can grant permission for a second appeal.[7]The appellant's notice is long out of time. According to correspondence with the Civil Appeals Office, it is treated as filed on 28th April 2005. Dr Wilkes tells me that he took some time to get his papers in order. After being told by Judge Stewart that he could not grant him permission, he did send some papers to the Court of Appeal, but they were not in the right form. He received some advice from a university legal advice centre in the winter of 2004 and that enabled him to make some further progress. Although there has been substantial delay since then until the date when he got his papers straight, he says he has been trying to progress the matter since then. In those circumstances, he asked for an extension of time. I shall consider that together with the merits of the appeal.[8]In order to have any prospect of succeeding on the application, Dr Wilkes would have to show that there is some important point of practice or principle in the case, or another compelling reason why the Court of Appeal should hear the case. That is the result of section 55 of the Access to Justice Act 1999. What he says is the compelling reason is that he says the judge was wrong to dismiss the appeal on the basis that there was no prospect of him being able to prove that the action taken by Miss Delaney was taken without instructions from her client, his former wife. This particular aspect of the litigation arises from the allegation that a property in the names of Dr Wilkes and his former wife which had been put up for sale and in respect of which offers had been received that were acceptable to the parties, that the sale was stopped on the instructions of Miss Delaney without instructions from her client.[9]As a general proposition, as Judge Stewart made clear, there is no scope for a party to litigation to sue his opponent's solicitors. They owe duties to their client. They do not owe duties, except in the most general sense and not duties of care, to the opposite party in the litigation. Indeed, it would be difficult and complicated if the opponent were able to sue the other party's solicitors, because there would be problems of disclosure of information because of the confidentiality of the client/solicitor relationship.[10]Therefore, Dr Wilkes starts at the bottom of a steep uphill struggle to demonstrate that he has any possible claim in this or any other respect against his former wife's solicitors. What he says is that the hearing in relation to which the judge received and had regard to a witness statement from Miss Delaney, which had been put in only two days before, proceeded on an unfair basis because either he says the judge should not have paid any regard to that witness statement, or, if he had, I suppose he might say he should have granted an adjournment to allow time to deal with it, or at any rate he should not have accepted it at face value. None of that comes anywhere remotely near demonstrating that there is an important point of practice or principle for this court to consider, or a compelling reason why the matter should be appealed to the Court of Appeal.[11]Accordingly, I have no hesitation in saying that even if I were prepared to give an extension of time, which stretching a point in Dr Wilkes' favour I shall, there is absolutely no substance in the application for permission to appeal. It is totally devoid of merit and I refuse permission.[12]That raises a second issue, although in fact it is an issue already raised on Dr Wilkes' appellant's notice, because in his appellant's notice not only does he ask for permission to appeal out of time, but he asks that what he calls "the gagging order" be removed from the order of 14th July. Now the gagging order must be a reference in this context to the assurance that he gave, no doubt, as it were, under pressure, because otherwise the judge would have considered whether to grant an extended civil restraint order as was requested of him. Dr Wilkes says in his appellant's notice that he considers the gagging order a direct attack on the access to justice as part of the Human Rights Act.[13]Now that is something on which I have not yet heard any argument. I am prepared to hear such argument, but I should say that it is a matter which this court is required to consider now whether to make such an order by virtue of the provisions of Civil Procedure Rules 52.10(5) and (6) which expressly say when an application is dismissed in these circumstances the court's order must record the fact that it considers the application or the appeal to be totally without merit -- as I do and as the court's order will record -- and it goes on to say:
"the court must at the same time consider whether it is appropriate to make a civil restraint order."
[14]First of all, I should say that Eversheds applied three days ago by a Part 23 notice that the court should make such an order. Secondly, I should say that Dr Wilkes sent a fax to the court last night or this morning saying that he wished to have time to deal with that and to consider getting legal representation, perhaps particularly under what he perceived as the threat that he had received a schedule of costs from Eversheds amounting to just short of £6,000.[15]As to that, I think what I should first do is invite submissions from Dr Wilkes. (Further submissions)

LORD JUSTICE LLOYD: As I mentioned, the consequence of my dismissing Dr Wilkes' application on the basis that I find it totally without merit is that I am obliged to consider whether it would be appropriate to make a civil restraint order of some kind. Eversheds have indeed anticipated that by making an application that I should make an extended civil restraint order.

[17]It seems to me that, but for one thing, it would be entirely right to make such an order because the circumstances are well within those provided for in the practice direction to CPR Part 3 in which such an order is appropriate, and it would be appropriate to make an extended civil restraint order rather than just an order limited to applications within a particular set of proceedings. The one reason to the contrary is that Dr Wilkes did give an assurance, which was accepted by Judge Stewart on 14th or 15th July 2004, that he would not commence fresh proceedings against Miss Delaney or her firm -- or, in effect, Eversheds, although the order in LV380342 does not record that -- without the permission of Judge Stewart. On that basis, he did not make an extended civil restraint order. It seems to me that the only things that have happened since then that bear on the point are twofold. The first is the making of this application and the other is the making of two rather odd applications against Eversheds directly in the two Liverpool County Court proceedings.[18]The question is whether, Judge Stewart having accepted the assurance that he did and that assurance having been kept to, the fact that there have been some more misconceived applications should suffice to justify the making of such an order. In my judgment, while I deprecate the making of either of these applications, it would not be appropriate to make an extended civil restraint order at this stage against Dr Wilkes. I propose to leave the matter on the basis of the assurance that he gave to Judge Stewart in July 2004, which, as I say, so far he has held to, subject only to a question about the rather odd applications he made against Eversheds.[19]This present application, of course, is not a breach of the assurance because it does not amount to fresh proceedings. Indeed, although of course notice was given of the application to the respondent, it was not necessary for them to attend, although I have been assisted by the material provided by Eversheds. In those circumstances, I propose not to make an extended or any other civil restraint order and to rest content with the assurance given to Judge Stewart.[20]But I do dismiss the application for permission to appeal as being entirely without merit.

ORDER

Application for an extension of time in which to file the appellant's notice granted; application for permission to appeal refused, it being entirely without merit; application for an extended civil restraint order refused; no order for costs. (Order not part of approved judgment) ______________________________

Cited in 1 later judgment