Shepherd v the Official Receiver [2016] EWCA Civ 671

Case No A2/2014/4039

& A2/2015/0831

[2016] EWCA Civ 671

IN THE COURT OF APPEAL (CHANCERY DIVISION)

ON APPEAL FROM THE bankruptcy and chancery office at the high court

(Mr Kerr QC & THE Honourable Mr Justice Morgan)

Venue Royal Courts of Justice

Strand

London, WC2A 2LL

Date Thursday, 28 April 2016

Before

Lord Justice David Richards

Between

SHEPHERDApplicant

THE OFFICIAL RECEIVERRespondent

DAR Transcript of

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Trading as DTI Global

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Official Shorthand Writers to the Court

The Applicant appeared in person for in person

for The Respondent did not appear and was not represented

Judgment (Approved)

[1]This is a renewed oral application for permission to appeal by Mr Shepherd against two orders made in the Chancery Division. The first order was made by Mr Timothy Kerr QC, as he then was, sitting as a deputy High Court judge on 6 November 2014. By that order an application issued by Mr Shepherd on 18 March 2014 was dismissed as being totally without merit. The second order was made by Morgan J on 9 February 2015. It was an extended civil restraint order forbidding Mr Shepherd for a period of two years from the date of the order from issuing proceedings in the High Court or the county court or issuing any application, appeal or other process in any such court concerning(1) the Official Receiver’s decisions not to pursue a claim against the Legal Services Commission, and not to assign any such claim to Mr Shepherd; or

(2) any other matter arising out of the Official Receiver’s involvement in the bankruptcy of Mr Shepherd, whether before or after his discharge from bankruptcy, without in either case first obtaining permission in accordance with the terms of the order.

[2]There is a long history, although the proper principal focus in these matters has been on events since Mr Shepherd was made bankrupt in 2002. A brief reference to earlier events is, however, necessary. Mr Shepherd practised as a solicitor practised but was struck off the roll of solicitors following his conviction in December 1993 on 15 specimen counts of fraud in relation to claims made to the legal aid board and its predecessor, the Law Society, for payment under the provisions of the Legal Advice and Assistance Scheme, the so-called Green Form Scheme.

[3]Subsequently Mr Shepherd issued a total of four sets of proceedings against the Legal Aid Board in respect of a significant number of Green Forms where Mr Shepherd said that he was entitled to payment. All of those proceedings were wholly, or, as Mr Shepherd has suggested to me today, in part struck out or summarily dismissed. In respect of one set of proceedings, there was an application to the Court of Appeal for permission to appeal which was refused by Laws LJ in June 2000.

[4]Following the making of a bankruptcy order against Mr Shepherd in 2000, such claims or rights as he might have had against the Legal Aid Board were vested in the Official Receiver as his trustee in bankruptcy. Mr Shepherd made representations to the Official Receiver with a view to persuading him to pursue claims against the Legal Aid Board.

[5]In a letter dated 16 January 2003 the Treasury Solicitor on behalf of the Official Receiver set out in some detail the reasons for the Official Receiver’s decision not to pursue those claims. The Official Receiver had concluded that such claims did not have any reasonable prospect of success.

[6]It is important to emphasise at this stage that following Mr Shepherd’s bankruptcy the claims that he might have against the Legal Aid Board vested in the Official Receiver. They were no longer claims which Mr Shepherd was entitled to pursue. It was a matter for the Official Receiver to decide in accordance with his statutory duties whether any such claims should be pursued.

[7]Since the decision of the Official Receiver not to pursue those claims Mr Shepherd has sought to challenge that decision on a number of occasions. The steps that have been taken by Mr Shepherd are summarised by Morgan J in paragraphs 9 to 14 of his judgment dated 9 February 2015. He said in those paragraphs:

“9. The first step that was taken by Mr Shepherd to challenge the Official Receiver’s decision not to pursue a claim against the Legal Services Commission was an application for judicial review. Mr Shepherd was refused permission to apply for a judicial review. In 2006 Mr Shepherd brought an application under section 303 of the Insolvency Act 1986. The purpose of the application was to bring the Official Receiver’s decision not to pursue the litigation to the attention of the court with a view to the court giving directions to the Official Receiver which, Mr Shepherd hoped, would have led to a claim being brought for the benefit of the bankrupt’s estate. 10. Mr Moss QC dealt with the application in 2006 and dismissed it. Mr Shepherd sought permission to appeal. Permission to appeal was refused by Chadwick LJ, who said that an appeal would be hopeless. In 2007 Mr Shepherd tried again with a further application under section 303 of the Insolvency Act 1986. That was dismissed by Mr Registrar Simmonds on 17 June 2008. Mr Shepherd sought permission to appeal, which was refused on the papers, and again following an oral hearing. Mr Shepherd made a third application under the Insolvency Act 1986 in relation to the Official Receiver, this time on 29 May 2009. That application was dismissed by Mr Registrar Simmonds on 9 June 2000. Mr Shepherd obtained permission to appeal against that dismissal but the appeal was dismissed by Mr Strauss QC sitting as a judge of the High Court on 23 March 2010. Mr Strauss was also asked to make an extended civil restraint order against Mr Shepherd and he did so. The order he made on that day lasted for two years until 22 or possibly 23 March 2012. During that two-year period Mr Shepherd did not make an application of the kind which he had made before, though I do not know whether he applied for permission to do so. 11. When the two years of the extended civil restraint order expired Mr Shepherd started again. On 11 February 2013 he made a further application against the Official Receiver relating to the decision not to pursue the Legal Services Commission. That application was dismissed by Deputy Registrar Nicholas Briggs, who certified that the application was totally without merit. Mr Shepherd applied for permission to appeal this decision and permission was refused by Birss J on 25 November 2013. I have been provided with a copy of Birss’ J order. He refused permission to appeal. He certified that the appeal was totally without merit. He directed consistently with that certificate that Mr Shepherd could not request the decision to be reconsidered at an oral hearing and Birss J gave detailed reasons for his conclusions. Those reason set out the nature of the points which Mr Shepherd wished to raise and why Birss J had concluded that there was no substance in them and they were totally without merit. 12. Birss J was asked to make a civil restraint order but in his reasons he indicated why he would not do so. He appears to have asked himself whether there were two applications which were totally without merit. He regarded the application to Deputy Registrar Nicholas Briggs and the appeal to Birss J as in substance one matter, so that one matter was totally without merit rather than two. He held it would not be fair to make a civil restraint order on that occasion. He added however the following: “However, if Mr Shepherd persists in making applications which are totally without merit then he is running a grave risk that the court may make another civil restraint order against him.”

That was 25 November 2013. 13. On 18 March 2014 Mr Shepherd did apply again against the Official Receiver, again under section 303 of the Insolvency Act 1986. Mr Registrar Barber directed that the application should be heard by a judge rather than a Registrar. It appears that her purpose in doing so included the reason that the Official Receiver could seek an extended civil restraint order against Mr Shepherd from the judge. The application was heard and determined by Mr Kerr QC sitting as a judge of the High Court on 5 November 2014.” Then he recites the passage from the judgment of Mr Kerr, and that really brings up to date the procedural history.

[8]Looking first at the decision of Mr Kerr QC, he dismissed Mr Shepherd’s application under section 303 on the grounds essentially that it was an attempt to re-litigate the same challenge which Mr Shepherd had previously made in the earlier applications under that section, all of which had been dismissed. 9. He said at paragraph 27:

“[Mr Shepherd] does not dispute that the subject matter of the application before me is the same as the subject matter of the applications aired before Mr Moss QC in 2006, and the other applications that I have mentioned. It is simply not acceptable for him now to come back to the court and expect the court to grant him relief even if the court might otherwise be minded to think that he once had a case for relief, which I am not saying was ever the position. 28. Essentially for the reasons set out in [counsel’s] skeleton argument ... I have no hesitation in rejecting the arguments of Mr Shepherd that there is some principle of the rule of law that applies here, which is so important that it ought to override and trump the procedural safeguards that are there to protect misuse of the court’s resources and re-litigation of points already litigated.” 10. In his submissions to me today Mr Shepherd has raised a number of points. Dealing first with the grounds of appeal in his appellant’s notice, there are two. The first says no more than that the judge was wrong, without saying in what respect or why. The second takes issue with a statement made by the judge in paragraph 8 of his judgment where, when dealing with the second action brought by Mr Shepherd against the Legal Aid Board before he was made bankrupt, the judge said this: “The Legal Aid Board applied successfully to District Judge Knopf to strike out that claim on 28 April 1999.”

The judge goes on to refer to the appeal which Mr Shepherd made to the High Court, which was heard and dismissed by Morrison J, which in turn led to the application to this court for permission to appeal which Laws LJ dismissed in June 2000. 11. The issue that Mr Shepherd raises in respect of that sentence in paragraph 8 is that the second claim was not struck out on 28 April 1999. I am not sure that the sentence in the judge’s judgment actually says it was struck out on 28 April 1999 rather than that the application was made on that day, but it is, with all respect to Mr Shepherd, a wholly irrelevant detail because there is no doubt that either the whole action or a substantial part of it was struck out on the Legal Aid Board’s application by an order on 6 July 1999. If there is an error at all, it is not an error which can possibly undermine the decision of Mr Kerr. 12. More generally, Mr Shepherd has taken some time to raise the issues he has with the treatment of his claims by the Legal Aid Board in the 1990s and early 2000, in effect raising before me some of the points which he has sought to raise in several challenges under section 303 to the decision of the Official Receiver not to pursue these claims. These are arguments which cannot give him a right to appeal against the decision of Mr Kerr. Mr Kerr’s decision is not based on an examination of the merits of the points that Mr Shepherd sought to make. His decision is based on the quite separate matter that these are issues which have already been gone into in the earlier applications made by Mr Shepherd under section 303 to challenge the Official Receiver’s decision. The point of Mr Kerr’s decision is that it was now too late to raise these points. 13. Mr Shepherd raised a further point with me. He said that if an examination were made of his dealings with the Legal Aid Board prior to his being made bankrupt, it would be seen that he should never have been made bankrupt. Furthermore, he went on to suggest that he was made bankrupt not only incorrectly but on the basis of fraud. 14. Mr Shepherd faces an insuperable obstacle in this respect. The bankruptcy order made in 2002 was never the subject, so far as I am aware, of any attempt to appeal it. Even if Mr Shepherd did attempt to appeal it, it was not successfully appealed. There is no new evidence of fraud that Mr Shepherd has put before the court, but, more to the point, this was not an issue that was even raised before Mr Kerr and certainly is not the subject either of his grounds of appeal before the court or of any evidence. 15. It is not, in any case, a matter which would go to dealing with an appeal against a refusal or a dismissal of a challenge to the Official Receiver’s decision, such challenge being made under section 303. 16. In conclusion, in my judgment Mr Kerr was clearly right to come to the decision he did and on the grounds that he did. Mr Shepherd was seeking to reopen and reargue the very matters which he had already raised in a number of earlier applications, all of which had been decided against him. It was clearly an abuse of the court’s process and the judge was, in my view, right not only to dismiss the application for the reasons he gave but also to state on the face of the order that it was an application totally without merit. 17. I turn then to the application for permission to appeal against the extended civil restraint order made by Morgan J. In considering that application for a civil restraint order, the judge correctly concentrated on the applications that Mr Shepherd had made against the Official Receiver following his bankruptcy, and in particular on those applications made since the expiry of the earlier extended civil restraint order. 18. He correctly proceeded on the basis that those earlier applications had been stated to be totally without merit. In my judgment, they were indeed totally without merit, as I have already stated in respect of the order of Mr Kerr QC. 19. In all the circumstances of this case, it was almost inevitable that a civil restraint order would be made against Mr Shepherd. His persistent attempts to bring the same matter before the court time and again, combined with what would appear to be an intention in continuing to do so unless restrained, means that the only proper course in the circumstances was to make an extended civil restraint order. 20. At the very least, this was an exercise of discretion by Morgan J, and I can see no possible basis on which the Court of Appeal would consider interfering with his decision. 21. Accordingly, I have concluded that Mr Shepherd has no real prospect of success in an appeal against the orders now under consideration and that there is no other compelling reason why permission to appeal should be given, and accordingly on both applications I refuse permission to appeal.

Order

Applications refused