Messer v Messer & Anor [2005] EWCA Civ 387

Case No B1/2004/0396Case No B1/2004/2144[2005] EWCA Civ 387
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(His Honour Judge Sennett)
Venue Royal Courts of JusticeDate Wednesday, 23 March 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
LORD JUSTICE JONATHAN PARKER
Between
THANOM MESSERAppellant-v-
Between
DAVID MESSERRespondentTHANOM MESSERAppellantMICHAEL MESSERDefendant-v-DAVID MESSERRespondent/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 and was assisted by McKenzie Friend Mr Peter Barnes for in person for The Second Defendant was not represented and did not attend for The Respondent was not represented and did not attend
J U D G M E N T

LORD JUSTICE CLARKE:

[1]This is a further instalment in litigation which has a very long history. Today's hearing arises out of directions which I gave last Thursday, 17 March. The applicant Mrs Messer is represented today by Mr Peter Barnes. We have thought it right to hear him on her behalf since we understand that she does not speak any, or at least any sufficient, English although we record in passing that he is the subject of an order under Section 42 of the Supreme Court Act, as amended, dated 4 December 2002. Notwithstanding that order, which is not perhaps directly in point so far as this application is concerned, we thought it right to hear his submissions.[2]The matter immediately arises out of the two decisions of this court, the first given by Lord Justice Waller on 21 December 2004 and the second given by Lord Justice Waller and Lord Justice Laws on 19 January 2005. As long ago as 30 October 2000, District Judge Blomfield ordered the applicant to give up possession of a property in Old Harlow, Essex where she was living. As I understand it, she remained in possession of that property until she was evicted last Thursday, 17 March. She sought to appeal against the order for possession and made a number of applications in 2001, 2002, 2003 and 2004. The question whether it was right to make a possession order in favour of the respondent Mr Messer was finally resolved by Mr Justice Lindsay in July 2004. It is plain from what we have been told by Mr Barnes on behalf of the applicant that the underlying purpose of this application is to challenge the order for possession and thus to set aside the order for possession made in 2000 to which I have referred.[3]The grounds upon which it is sought to set aside the order for possession include a submission that Mr Messer failed to give any, or any sufficient, disclosure of the true position and the true relationship between the respondent and the applicant. Mr Barnes also submits that the court should provide legal representation for the applicant who is unable to obtain it for herself. He seeks to rely upon a recent decision of the European Court of Human Rights in the McDonald libel litigation. He says that the applicant has not been able to understand the proceedings to date.[4]When the matter came before Lord Justice Waller in December there were a series of applications before the court. Lord Justice Waller refused all the applications except one. He recognised that the applicant had a right of appeal against a suspended order for committal which had been made against her on the basis that she was in contempt of court in failing to give up possession in accordance with the order for possession which had been made.[5]Lord Justice Waller directed that that appeal be heard in January 2005 and gave directions enabling the applicant to put such further information before the court as she thought appropriate. In the course of his judgment, which runs to some 23 paragraphs, he recited the history of the matter in some detail. He identified the two strands of the litigation up to that stage, namely the strand which related to the order for possession and the strand which related to the order for committal. The strand which related to the order for possession came to an end when the application for permission to appeal against the original order was refused by Mr Justice Lindsay in July 2004. So far as the committal strand was concerned, Lord Justice Waller gave the directions and made the order which I indicated. In paragraph 19 of his judgment he said that although Mrs Messer would be able to challenge the committal order - "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."[6]It appears that the applicant did manage to obtain some assistance between the decision of Lord Justice Waller in December and the appeal before Lord Justice Waller and Lord Justice Laws on 19 January because a letter dated 18 January was put before the court setting out her concerns. As to that, Lord Justice Waller said in paragraph 10 of his judgment:
"I can deal with them both [the letter of 18 January and a document put in by a Miss Rayne on her behalf] together because in neither does she raise any ground of attack on the committal order itself. In both she goes back to asserting that the original order for possession was unfair, and she goes back to arguments which she raised in the context of the litigation concerning whether a possession order should be made, the unfairness of her treatment by Mr Messer, all matters which go to the original orders and not to the order for committal."
[7]In paragraph 12 Lord Justice Waller referred to the fact that Mr Justice Lindsay finally disposed of her appeal from the original possession order of 19 July 2004. In paragraph 14 he said in relation to the court's decision to extend the period of suspension of the committal order until 16 March:
"Mr Messer has been seeking possession of this property for a very long period and has actually been shown to be justified in the order he was seeking and which he originally obtained as long ago as 23 November 2000. Mrs Messer has had advice from at least September last year from those who were assisting her that the only course, and the only appropriate course, for her was that she should leave the property, there now being an order against her. She has thus known for a considerable period of time that she must leave the property - that is the order of the court - and she has known for some time that if she does not obey that order, then she will go to prison."
Lord Justice Laws agreed with the order proposed by Lord Justice Waller and with the reasons he gave for it. The court also refused her permission to appeal to the House of Lords.[8]After that the applicant sought to issue an application to review those decisions in this court. That application was submitted to Deputy Master di Mambro who considered it on paper and determined that the court had no jurisdiction to entertain a further application. Deputy Master di Mambro was, in principle, correct about that because there is no basis on which the court has jurisdiction to review an order refusing an application and only the House of Lords can entertain an appeal from a decision made by this court on an appeal. So far as I am aware, no application has been made to the House of Lords for leave to appeal against the decision in January.[9]The only remaining jurisdiction is to be found in CPR 52.17 which provides:
"(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless - (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to re-open the appeal; and (c) there is no alternative effective remedy. ..... (5) There is no right to an oral hearing for an application for permission unless exceptionally the judge so directs."
[10]Deputy Master di Mambro directed the office not to issue the application which the applicant sought to make on the ground the court had no jurisdiction to entertain it. The applicant sought to challenge that decision on jurisdiction. The decision of the Deputy Master was communicated to the applicant by letter dated 4 February 2005, which stated that it was not open to the applicant to apply to the court to set aside the order made on 19 January. The applicant responded seeking to challenge the jurisdiction and pointing out that she did not know the name of the Deputy Master. Mr Denman of the Civil Appeals administrative office wrote on 24 February 2005 giving the name of the Deputy Master. He explained that no order would be issued, but said that she might seek to appeal the decision and that the court had no jurisdiction to issue the application. I am not sure whether that was strictly accurate. But, in any event, further submissions were made to the court by or, more accurately, probably on behalf of the applicant, in a letter dated 11 March in which a series of points were made. Reference was made, for example, to Section 49 of the Supreme Court Act 1981 and to CPR 52.16. It was submitted that by Part 52.16 (1) the applicant was entitled to an oral hearing after a determination on paper by a court officer or indeed a single judge.[11]That letter or representation was dated 11 March. In the meantime, on 7 March, an application was made to a district judge at the Cambridge County Court, seeking delivery up of certain documents. That was, as I understand it, refused. An appeal was subsequently listed before the County Court judge, His Honour Judge O'Brien, in Cambridge County Court on 16 March. The application for leave to appeal was heard on 16 March and was dismissed. On 17 March, that is last Thursday, an application was made to a judge of the Chancery Division seeking a stay of the warrant of possession. The applicant (and perhaps also Mr Barnes) attended before the judge. We were told that the respondent - who had procured an order of eviction for 10.30 on the 17th - had promised that he would not execute it before that application to the court was determined.[12]The application for a stay of the warrant of possession was dismissed and the order for possession was executed some time later in the day and, as a result, the applicant is no longer in possession of the property. Subsequently the respondent, or the solicitors for the respondent, wrote to the court informing the court that the applicant has indeed given up possession but stating clearly that, in the light of the fact that the respondent has taken re-possession of the property, the respondent has no intention of applying to have the appellant committed to prison.[13]Also on 17 March the matter was put before me on paper by or on behalf of Deputy Master Joseph. I recited briefly the history of the matter. I formed the view that it was at least arguable that under CPR 52.16, and especially CPR 52.16 (3), the applicant was entitled to an oral hearing. I therefore thought it right to stay or to extend the period of suspension of the committal order until close of business today. However I was unaware at that time that possession had been obtained by the respondent during the course of the 17th. I also indicated, as I think remains the case, that no application had yet been made under CPR 52.17, to which I have already referred.[14]Mr Barnes first seeks an adjournment of this application so that he can prepare an appropriate bundle or bundles for the court, an appropriate skeleton argument and an appropriate bundle of authorities. I would grant that application if I were persuaded that the underlying application had any realistic prospect of success. It is plain from what I have already said that the substance of the underlying application is to have the possession order set aside on the basis that I have already indicated, namely that it should never have been made, that the applicant never understood the proceedings and that the court should assist her by procuring the provision of counsel for her, and that ancillary orders for disclosure should be made and the like.[15]The problem - as Lord Justice Waller pointed out - is that what the applicant is seeking to do is to challenge the order for possession which was finally disposed of when the matter was determined by the refusal of the application for permission to appeal by Mr Justice Lindsay in July 2004. The matters before the Court of Appeal related to the suspended committal order. The true position is that it is now simply far too late for these points to be advanced in this court. The court has no jurisdiction to entertain an appeal or application to set aside the order of the Court of Appeal in December or the order dismissing the appeal in January 2005. Its only jurisdiction is in Rule 52.17, to which I have referred. It is accepted that no application has yet been made under Rule 52.17. It follows that it would be open to the applicant to make an application under Rule 52.17. The application would have to be in writing. For my part, I see no reason why it should not be determined in writing on a written application. The application would have to be properly supported and would have to spell out the basis on which it is said that the strict criteria in Rule 52.17 (1) (a), (b) and (c) are satisfied. It appears to me that no useful purpose would be served by granting an application for an adjournment since the application upon which it is based is doomed to fail. For that reason, I would refuse the application for an adjournment and I would refuse the application so far made on the footing that that application does not include an application under CPR 52.17.

LORD JUSTICE JONATHAN PARKER: I agree.

Order

Applications refused