Pelling v Bow County Court [2005] EWCA Civ 384

Case No B1/2004/2615(A)Case No B1/2004/2615Case No B1/2004/2480[2005] EWCA Civ 384
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEATSON AND MR JUSTICE ROYCE)
Venue Royal Courts of JusticeDate Friday, 25 February 2005
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE SCOTT BAKER
LORD JUSTICE THOMAS
Between
MICHAEL JOHN PELLINGApplicant-v-
Between
BOW COUNTY COURTDefendant
(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 personMR C SHELDON (instructed by Treasury Solicitor, London SW1H 9JS) appeared for Defendant
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]Dr Pelling appeals against two suspended committal orders that were made against him. He appeals as of right, but requires an extension of time under CPR 52.3(1(a), and there seems to be no reason why he should not be granted the appropriate extension in the circumstances.[2]The first order in time is that made by Beatson J on 28 July 2004, the appeal proceedings being B2004/2480. The second order is that made by Royce J, the proceedings there being B1/2004/2615. A bench warrant issued by Judge Yelton on 26 October 2004 in pursuance of Beatson J's order of 28 July was discharged by Royce J on 10 November 2004. The Civil AppealS Office has refused to issue separate process by Dr Pelling to challenge the bench warrant. That is not an issue for this court today. Dr Pelling has started separate proceedings seeking leave to apply for judicial review.[3]The background is this. In 1998 Dr Pelling challenged the vires of a number of rules, including the validity of rules requiring certain hearings to be in private, and the right of the Bow County Court to conduct proceedings in accordance with those rules. Dr Pelling failed in his judicial review claim which was heard by Buxton LJ and Penry-Davey J in the Divisional Court. Dr Pelling was ordered to pay the respondent's costs, which ended up with an order against him for £18,965.13, which he was ordered to pay at the rate of £21 per calendar month. He failed to pay. Enforcement proceedings were taken against him, and on 28 April 2004 Master Whittaker made an ex parte order requiring Dr Pelling to attend at the Royal Courts of Justice at 10.30 am on 28 July to be questioned about his means.[4]The order was served on Dr Pelling on 5 July. Dr Pelling failed to attend. On 28 July and Beatson J made the order (which is to be found at page 9 of the relevant bundle). This order was never served on Dr Pelling, who was not present when it was made, but a further date was fixed for his examination, namely 26 October, and notice of that date was served on Dr Pelling on 24 September. Again he failed to attend. This time a bench warrant was issued by Judge Yelton, sitting as a Deputy High Court Judge. Dr Pelling was arrested on 10 November and brought before Royce J. He told Royce J that he had not been served with Beatson J's order, and this was later conceded by counsel for the respondent. Royce J discharged the arrest warrant and adjourned the proceedings until 2.30 the same afternoon, pending consideration of what further steps he should take. Dr Pelling did not attend at 2.30 pm and Royce J made the order in 2004/2615. Royce J was invited to discharge the suspended committal order made by Beatson J, but declined to do so, perhaps out of an abundance of caution.[5]Part only of the order of Royce J was included in the court bundle for this appeal. This regrettable oversight was not picked up by either party until the conclusion of the hearing. The Court's initial concern that there were serious deficiencies in the form of the order proved therefore to be unfounded. The appeal is however conceded by Mr Sheldon on behalf of the respondent on the basis that both Beatson and Royce JJ's orders should not have been made and cannot stand. On neither occasion was the judge's attention drawn to CPR 71. 71.4 provides:
"A person ordered to attend may, within 7 days of being served with the order, ask the judgment creditor to pay him a sum reasonably sufficient to cover his travelling expenses to and from court. (2) The judgment creditor must pay a sum if requested. 71.5(1) The judgment creditor must file an affidavit or affidavits - (a) by the person who served the order (unless it was served by the court) giving the details of how and when it was served; (b) stating either that - (i) the person ordered to attend court has not requested payment of his travelling expenses (ii) the judgment creditor has paid a sum in accordance with such a request; and (2) The judgment creditor must either - (a) file the affidavit or affidavits not less than 2 days before the hearing; or (b) produce it or them at the hearing."
The relevant affidavit covered service in this case, but regrettably did not cover the relevant statement about travelling expenses.[6]When one looks at 71.83, it is apparent that such an error is fatal to the validity of the committal order, because 71.83 provides:
"A committal order for failing to attend court may not be made unless the judgment creditor has complied with rules 71.4 and 71.5."
[7]In the circumstances of this case, both committal orders should not have been made because of failure to comply with the earlier parts of 71.4, and in particular with 71.5. There is another problem in that the affidavit failed to comply with the relevant Practice Direction in setting out the outstanding amount of the judgment debt; it is, as I have indicated in these circumstances, that this appeal is conceded by the Secretary of State.[8]There is other relief sought by Dr Pelling, including claims relating to breaches of the Human Rights Act for damages. We have given some thought to the future of these matters, which it is agreed by both sides should not be finally disposed of today. Our attention has been drawn to section 9 of the Human Rights Act 1998, which provides:
"Proceedings under section 71A in respect of a judicial act [which these are] may be brought only (a) by exercising a right of appeal; (b) on any application in Scotland petition for judicial review; or (c) in such other forum as may be prescribed by rules."
Part 7.11 of the CPR provides:
"A claim under section 71 of the Human Rights Act in respect of a judicial act may be brought only in the High Court."
[9]Quite apart from, on the face of it, the general inappropriateness of Dr Pelling's outstanding claims being made in the Court of Appeal rather than a lower court, Part 7.11 specifically provides that a claim under section 71 of the Human Rights Act is only to be brought in the High Court. If Dr Pelling's claims remain outstanding, it may be they should be remitted to the High Court. Be that as it may, Mr Sheldon has submitted, and we accept, that the most sensible and practical course today is that, apart from setting aside the committal orders, the other claims for relief by Dr Pelling should stand adjourned generally. We are told there is an expectation that, if not completely disposed of, they are likely to be substantially disposed of. Suffice it to say that the claims at this stage are really no more than assertions, and it seems to me very doubtful whether any of them have any real prospect of success.[10]I would allow at the appeal on the basis I have indicated.

LORD JUSTICE THOMAS: I agree. (Appeal allowed; Defendant to pay the Applicant's costs, summarily assessed in the sum of £250, to be set against the judgment debt).