Duncan Needham v Susan Rosemary Ellis [2024] EWCC 29

[2024] EWCC 29Case No KA-2024-BHM-000038Venue IN THE BIRMINGHAM COUNTY COURT, Birmingham Civil Justice Centre33 Bull StreetVenue BirminghamB4 6DSDate of hearing: 15 November 2024
Before
HIS HONOUR JUDGE TINDAL
Between
DUNCAN NEEDHAMAppellantSUSAN ROSEMARY ELLISRespondentDUNCAN NEEDHAMAppellantSUSAN ROSEMARY ELLISRespondent
THE APPELLANT appeared in Person for in personMR JOHN ALDIS for Respondent
JUDGMENT
Hearing Hearing Date: 15 th November 2024Digital Transcription by Marten Walsh Cherer Ltd2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTel No: 020 7067 2900. DX: 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.comDate 2024-11-15

HHJ TINDAL:

[1]This is an unusual appeal (strictly two appeals) which arise from complex underlying proceedings running for several years. They derive from the breakdown in the relationship between the Appellant, Mr Duncan Needham, and the Respondent his former partner, Ms Susan Ellis, and litigation under the Trusts of Land and Appointment of Trustees Act 1996 (‘TLATA’) concerning their beneficial interests in their home at 15 Castle Lane in Solihull. As there has been so many applications brought by each, I will refer to them by their names.[2]A TLATA claim brought by Ms Ellis in 2016 apparently resolved by a consent order on 31 May 2017, the day listed for trial before HHJ Rawlings. However, Mr Needham, who represents himself, contends that consent order was obtained by fraud and by duress. He made an application to stop the effect of the consent order within a few months, which was refused by HHJ Rawlings in August 2017; and in 2018 made an application to set it aside, which was dismissed by HHJ Murdoch in November 2018. He certified the application as totally without merit and further totally without merit orders were made in ensuing costs proceedings and appeals. In the end, it led to a detailed assessment of costs in favour of Ms Ellis and, indeed, a subsequent set of proceedings which led to a statutory costs order of £14,994.97, with an ensuing statutory demand issued by Ms Ellis against Mr Needham, which in itself led to proceedings giving rise to another appeal to HHJ Rawlings in 2022.[3]In the course of all that litigation, four totally without merit orders had been against Mr Needham: two by HHJ Murdoch dismissing his application to set aside the consent order and refusing to vary his order in November and December 2018; one by Tipples J on a costs appeal in 2021 and one by DDJ Leong on a costs application in December 2022. Just afterwards, on 12th December 2022, HHJ Kelly made a Limited Civil Restraint Order (‘the LCRO’) which runs through until 11 December 2024, in a little under a month’s time.[4]Because of that LCRO, Mr Needham needed the permission of the court under Civil Procedure Rule Practice Direction 3C paragraph 2 to make any applications within the same proceedings and in September 2023 he made another application to set aside the original 2017 consent order, although his contention is that is on quite different grounds with quite different evidence than the original application dismissed by Judge Murdoch in 2018.[5]This appeal arises out of the refusal of that application for permission to apply under the LCRO (which I shall refer to as ‘permission to apply’ in distinction to ‘permission to appeal’) by District Judge Phillips on 5th December 2023. Although Practice Direction 3C (‘PD 3C) paragraph 2.6 says an application for permission to apply under a LCRO will be determined without a hearing, erroneously the Court listed it for hearing on that day before DJ Phillips. She firstly vacated the hearing without giving the parties the opportunity to make submissions and secondly refused permission to apply on paper without giving reasons. Each order generated an appeal, which I later consolidated for obvious reasons.[6]HHJ Kelly gave Mr Needham permission to apply for permission to appeal against both the decision of DJ Phillips to vacate the hearing without hearing submissions and her decision to refuse the application for permission to apply to set aside the consent order without giving reasons. With the benefit of that permission to apply, I then considered permission to appeal, required in every case irrespective of whether there is a Civil Restraint Order, granting it on 21st August 2024, listing the appeal before myself and making directions.[7]Ms Ellis has, in fact, conceded that DJ Phillips was wrong to vacate the hearing without the submissions of the parties and indeed, not to give reasons for her refusal of permission. However, Ms Ellis contends that even though DJ Phillips was wrong, under CPR 52.20(1), I have all the powers of the lower court; including under CPR 52.20(2) the power to affirm, set aside or vary any order by the lower court and in CPR 52.20(4) I may exercise that power in relation to the whole or part of an order of the lower court.[8]In essence, it is Ms Ellis’s position that I should essentially leave in place and refuse to set aside the refusal of permission to apply by DJ Phillips. It is Mr Needham’s application that I should set aside the refusal of permission to apply by DJ Phillips and indeed, give my own permission to apply to him so he can then make a full application to set aside the consent order, which the parties agree would then be likely to require oral evidence. ‘Permission to apply’ under a Civil Restraint Order[9]As I have said, the statutory framework for Civil Restraint Orders is contained in Practice Direction 3C of the CPR. In brief summary, there are three types of Civil Restraint Orders. The present type is a ‘Limited Civil Restraint Order’ (or ‘LCRO’) which requires the permission of the court for any application within the same proceedings as it is made. The next most onerous form is an Extended Civil Restraint Order (or ‘ECRO’), which has similar effect in requiring permission, but in relation to any claim or any proceedings brought against a particular defendant: it does not have to be within the same proceedings. Then the most onerous form is a General Civil Restraint Order (or ‘GCRO’), which requires permission for any claim or application against any defendant in a named court, such as the County Court or High Court or, indeed, both.[10]A Limited Civil Restraint Order, such as in the present case, under paragraph 2.1 of Practice Direction 3C (‘PD3C’) may be made by a Judge of any court where a party has made two or more applications which are totally without merit within those proceedings. That, as I say, is the nature of the Civil Restraint Order made by HHJ Kelly just under two years ago.[11]Extended Civil Restraint Orders or General Civil Restraint Orders, by contrast, require the ‘persistent’ issue of claims or applications which are totally without merit, which tends to mean at least three, if not more, such certifications totally without merit of individual applications or whole claims: see Sartipy v Tigris Industries [2019] 1 WLR 5892 (CA).[12]I am grateful to Mr Needham, although a litigant-in-person, for his industry in both setting out in his skeleton the statutory framework for Civil Restraint Orders and indeed referring me to the case of Deeds v Various Respondents [2013] EWCA Civ 1678. In Deeds, the Court of Appeal explained that Civil Restraint Orders could be made of the court’s own initiative without a hearing but that, like any order without a hearing, under CPR 3.3(5)(a) a litigant had the right to apply to set aside that Civil Restraint Order at an oral hearing.[13]Therefore, Civil Restraint Orders of any kind can be made on the papers, but someone made subject to that order will have, on the face of it, the right to request an oral hearing, although Deeds and other cases, including the case I referred to in my permission to appeal judgment, Gopee v Southwark Crown Court [2023] EWCA Civ 881, show that there is not necessarily always a right to an actual oral hearing on the making of a Civil Restraint Order.[14]When it comes to the grant of permission under an existing Civil Restraint Order of whatever kind, for Limited Civil Restraint Orders at paragraph 2.6 of PD 3C, for Extended Civil Restraint Orders at paragraph 3.6 of PD 3C; and for General Civil Restraint Orders at paragraph 4.6 of PD 3C, all say that application for what I am calling ‘permission to apply’ under a Civil Restraint Order in respect of a particular application in proceedings will be determined without a hearing. That raises the question of the test the Court must apply in an application for ‘permission to apply’ on the papers under PD 3C, which is silent on that and on which there is little or even no authority, as I noted in giving permission to appeal.[15]On conducting some research into this, the origin of Civil Restraint Orders was not actually the then-new Civil Procedure Rules themselves in 1998, but rather the 2003 judgment of the Court of Appeal in Bhamjee v Forsdick & Ors (No. 2) [2004] 1 WLR 88, where the Court articulated what later was codified in PD 3C as Limited, Extended and General Civil Restraint Orders, which were deriving from a jurisdiction to control litigants recognised as long ago as a Victorian Chancery case called Grepe v Loam (1887) 37 Ch D 168 (CA).[16]I have considered Bhamjee and related cases with a view to seeing whether there was any guidance about the test for what I am calling ‘permission to apply’ under a Civil Restraint Order. But again, those cases appear to be silent on that question. However, what is relevant in Bhamjee is that the Court of Appeal differentiated what it renamed ‘Civil Restraint Orders’ from the pre-existing ‘Civil Proceedings Orders for Vexatious Litigants’, governed by a statutory regime: s.42 Senior Courts Act 1981 (‘SCA’). Those orders can only be made where the Attorney General satisfies the High Court that a litigant has ‘habitually and persistently and without any reasonable ground’, instituted civil proceedings. Such a Civil Proceedings Order is rather like a Civil Restraint Order under PD 3C in the sense that it requires the leave of the Court for the institution of any proceedings or any application. However, unlike PD 3C for Civil Restraint Orders, s.42(3) SCA does give a threshold for the grant of permission (or ‘leave’ as it is called) under a Civil Proceedings[17]That raised a question ventilated with Mr Aldis, who appeared for the Respondent to the appeal, and Mr Needham himself, who, as I say, appeared in person, about what the appropriate test for ‘permission to apply’ under a Civil Restraint Order (‘CRO’) was and whether there was a ‘read-across’ from s.42(3) SCA into PD 3C. Certainly, it seems to me that the court would not grant permission to apply under PD 3C if the application was an abuse of process of the court. Indeed, it would be a contradiction in terms to give permission to an application which is an abuse of process of the Court. Moreover, an argument of abuse of process would be available to the other party in any event, weakening the force of CROs.[18]On the other hand, nor in my judgment can those drafting CPR PD 3C have intended the threshold test for ‘permission to apply’ to be as high as the applicant establishing that there are ‘reasonable grounds’ for the proceedings in question or application as with a Civil Proceedings Order with a Vexatious Litigant. That entails an objective test of ‘reasonable grounds’ appearing to be significantly higher than the familiar test in a number of different contexts in the Civil Procedure Rules (e.g. CPR 24) of a ‘real prospect of success’.[19]In my judgment, in the absence of any other express test in PD 3C or the authorities which I have considered, as Mr Aldis submits, the appropriate test for ‘permission to apply’ under PD 3C under an existing Civil Restraint Order is one of a ‘real rather than a fanciful prospect of success’ of the proposed application. I reach that conclusion for essentially three reasons.[20]Firstly, that rather lower hurdle for an applicant than ‘reasonable grounds for the proceedings or application’ as in s.42(3) SCA reflects the fact, as explained in Bhamjee, that a Civil Restraint Order under PD 3C is not as onerous and draconian an order as a Civil Proceedings Order in relation to ‘Vexatious Litigant’ under s.42 SCA which are much rarer. It is therefore logical and follows that the threshold for permission should be rather lower.[21]Secondly, the requirement for an application to have realistic, as opposed to fanciful, prospects of success obviously includes that it is not an abuse of process (because an abusive application cannot have real prospects of success). So, it is higher than the abuse of process argument threshold, reflecting that when someone already has a Civil Restraint Order against them, the Court can require them to show any application they make to have at least sufficient merit that it has a realistic, as opposed to fanciful, prospect of success. That strikes the balance in a way which respects the litigant’s rights under Article 6 ECHR, as discussed in Bhamjee, that individuals should not be unduly restricted from conducting litigation. After all, the ‘realistic not fanciful prospect of success’ test is routinely used under the CPR and has never been suggested, so far as I am aware, to violate Art.6 ECHR.[22]That leads me onto the third reason, which is a straightforward practical one. Judges are used to the ‘realistic not fanciful prospects of success’ test. District and Deputy District Judges apply it all the time, as do Recorders and Circuit Judges and indeed High Court Judges and Deputy HCJs. Given that so many ‘gatekeeper judges’ under Civil Restraint Orders will be District Judges, it is a test with which they will be extremely familiar and can easily apply, because they are so used to doing so in the context of summary judgment applications under CPR 24 and in relation to applications to set aside default judgment under CPR 13 etc. Likewise, it is a test which any Circuit Judge gatekeepers will be familiar with, not only for that reason but also because it is essentially the same test as Circuit Judges will apply when granting permission to appeal under CPR 52.6, as I did in relation to this particular case, which is the analogy Mr Aldis draws and is a sensible one. Indeed, it gains added force by the fact that it is clear from the commentary in the White Book under CPR 54.6 that the test for permission in Judicial Review proceedings is a test of arguability, which is again essentially the same as ‘realistic as opposed to fanciful prospects of success’, and a standard familiar to High Court Judges considering not only permission to appeal, but also whether to give permission for Judicial Review. In the same way it is used there, ‘permission to apply’ under a Civil Restraint Order is a filter to prevent the Court being clogged up with applications which are not arguable or are even actually bound to fail. After all, a litigant will only have a Civil Restraint Order of any kind if they have previously, on one or more occasion, made an application or claim which is ‘totally without merit’.[23]For all those reasons, it seems to me that the tried and tested ‘realistic as opposed to fanciful prospect of success’ test which recurs throughout the CPR is the most appropriate candidate for the test for ‘permission to apply’ under a Civil Restraint Order under PD 3C. That includes, as relevant to the present case, in relation to paragraph 2.1 of PD 3C for a Limited Civil Restraint Order and that is the test which I will apply.

Procedural History

[24]I can take this to some extent from my permission to appeal judgment, which I set out the convoluted procedural history of this case in a little detail, to which there has not been any correction by the parties. But I will add some detail which has been provided by Mr Needham today, with some additional documentation arising out of the procedural history.[25]As I said, these proceedings have a long and convoluted history and relate to an underlying dispute between the parties, who were former cohabitees, concerning a property they co-owned at 15 Castle Lane, Olton in Solihull. Proceedings began as long ago as August 2016 in case number C01BN386, with Ms Ellis seeking a declaration and an order for sale.[26]After the initial trial listed for February 2017 was adjourned, the trial was relisted for 31st May 2017 before HHJ Rawlings. The events of that day are hotly contested. Mr Needham’s case on this is most helpfully set out in an application he subsequently made to HHJ Murdoch for the setting aside of the consent order which ensued on that day. He said:
“On 31 May 2017, the two witnesses, my solicitor and my counsel and I, attended Birmingham County Court. The reason for my attendance was to represent myself in my claim for an interim remedy and to attend a full day trial in Court 21 and to attend a full day trial of the Respondent’s claim in Court 23. In other words, two separate hearings. Why the court listed both hearings to run simultaneously has never been satisfactorily explained. Neither hearing took place as I was ambushed, wrongfooted and bounced into an oral agreement within, as the Respondent [Ms Ellis] has stated, 35 minutes. I protested about needing to negotiate from scratch in such a short timeframe. Nobody cared. I had arrived at court at 8.30 a.m. from Lancashire. Both court hearings were scheduled for 10.30 a.m.. I went into Court 21, that is the other case, at 11.55 a.m.. I was desperate to get into court because so much of the day had already been wasted and the day had already cost me a great deal of money again. I had paid for full representation at full hearing twice and there has never been any hearing of the claim. When I eventually got into Court 21 for my interim remedy, the Respondent took over proceedings, our oral agreement [that is to say an oral agreement to settle the case] was basically and poorly explained. The judge accepted it, after being kept waiting for almost one-and-a-half hours and retired. I was in shock. Counsel then prepared an agreement on a laptop that was altered, printed off and signed. It has been called a consent order. I could not say no to it because you had just made an oral agreement. The problem with the consent order is that it just did not make sense. It did not read right. It made out that I had been preventing a sale when I had not.”
[27]In the following paragraphs of that application, Mr Needham went on to say that he was compelled to attend the hearings on 31st May 2017, compelled to negotiate and indeed, agreed under duress. Today when he was explaining his position, I sought to summarise what he was saying as that he ‘agreed in principle to the settlement but under protest’, which he agrees does encapsulate his position. He contends he was pressured by his legal team, but never agreed to any consent order which his barrister drew up and submitted.[28]The consent order approved by HHJ Rawlings that day set out some fairly standard provisions and recorded at paragraph 1 that the property at 15 Castle Lane, Olton, Solihull will be sold in accordance with paragraph 2. That paragraph then set out various mechanics in relation to the sale, including the appointment of Xact Estate Agents. Paragraph 3 said:
“The proceeds of sale of the property should be applied as follows: in discharging the costs of sale and in payment of the balance as two-thirds to the claimant and one-third to the defendant, subject to a deduction of £7,500.”
Although Mr Needham’s position fluctuated today, he eventually accepted that he did agree in principle to that ‘under protest’, but not for it to be incorporated into a consent order, rather, he was expecting it to be done by way of a side contract.[29]Indeed, in submissions today, Mr Needham went through the wording of the consent order in great detail and made no fewer than 15 points about its drafting with a view to suggesting it was in some way forged. Every single one of those points, I am afraid, betrays the fact that Mr Needham is perhaps unfamiliar with the drafting of such orders, as in each and every case, for example, the formatting of the document, the particular forms of words and so on, they are utterly and completely standard. Clearly, it has been drafted by lawyers.[30]I do not doubt for a moment that Mr Needham did not necessarily read through and agree every single word of that order. But the gist of the order appears to be consistent with what Mr Needham himself says was that ‘he agreed in principle under protest’. Moreover, the order itself is typed and then the last page contains the word ‘Claimant’ and then Ms Ellis’s signature and then ‘Defendant’ and then Mr Needham’s signature, and then the signature of HHJ Rawlings. So, in other words, Mr Needham accepts that he actually signed on 31 May 2017 the consent order in those terms. However, he says he had no choice.[31]It is Mr Needham’s case that HHJ Rawlings actually signed the consent order in the morning before himself, and for that matter Ms Ellis, signed the consent order later on. He says in his application for permission to apply before DJ Phillips that is now proven by new material which he did not have when dealing with the application to set it aside refused by HHJ Murdoch. This includes not only a copy of the consent order with alleged ‘anomalies’, which as I have said are entirely standard features, but also a series of emails that he later obtained, as I understand it, in 2019 or 2020. He says those emails prove the PDF of the draft consent order was created at 11.44, but the time has been altered to display the creation time as being one hour later, in the afternoon, whilst he says HHJ Rawlings has said in open court in a passage I will turn to in a moment that he signed the consent order in the morning.[32]Mr Needham, developed his argument in more detail, but the gist of it, as I understood it, is that this ‘new evidence’ demonstrates his contention that he signed the consent order after HHJ Rawlings had signed it and in a different form than the version HHJ Rawlings had signed. In essence, he says that HHJ Rawlings signed one version and then he himself signed another version - indeed one of multiple versions, which he did later that day.[33]That is an extremely serious accusation for Mr Needham to make. It, in effect, suggests that the barristers, whether counsel for Ms Ellis or for himself, whom I need not name, jointly or individually misled HHJ Rawlings as well as misleading Mr Needham himself. Indeed, previously, Mr Needham has even described HHJ Rawlings’ signature as being forged, although that is not the way he puts his case today. He relies upon certain other material in support of this, for example, the fact that his counsel at that time was sat outside HHJ Murdoch’s chambers when HHJ Murdoch was dealing in 2018 with the application to set aside the consent order. Mr Needham says that all this information and other information which he has obtained would demonstrate conclusively that this consent order was obtained by fraud and without his instructions. That is Mr Needham’s case to set aside that order.[34]But fortunately, we have HHJ Rawlings’ own version of what happened on 31st May 2017 through the transcript of hearing and his judgment in an application on 8th August 2017. Whilst the consent order had been concluded on 31st May, on 5th July 2017 Mr Needham applied for a stop order and on 10th July 2017 Ms Ellis applied to vary the consent order. Those applications were both heard and refused by HHJ Rawlings himself on 8th August.[35]By that stage, Mr Needham was representing himself and he actually said in his submissions to HHJ Rawlings that he ‘did not really want to go into the reasons why he wanted to make an application to set aside the consent order at this stage because he considered to do so would be to run a mini trial’. HHJ Rawlings responded that his application to set the consent order aside had not been issued and did not have a statement in support. Mr Needham asked HHJ Rawlings whether he was going to deal with his application to set aside the consent order and HHJ Rawlings explained he could not set it aside without a proper application, but the allegations Mr Needham made might be his only ground for his actual application to stop implementation of the consent order and relevant to Ms Ellis’ application to vary it. Mr Needham explained he was not opposing the sale of the property and understandably, HHJ Rawlings asked him why he was applying to stop the consent order. Mr Needham said that it had been obtained in suspicious circumstances and when asked what those were, said ‘the marketing period is very short and there are other parties interested in the property’. HHJ Rawlings explained to Mr Needham that was a complaint about the implementation of the consent order, not grounds to impugn the consent order itself. Mr Needham then replied that it was obtained by a ‘misrepresentation’, which I will explain below.[36]After Counsel for Ms Ellis had resisted Mr Needham’s application to stop implementation of the consent order and set out her application to vary it, HHJ Rawlings agreed and said:
“Susan Ellis, claimant in these proceedings, applied to the court for an order to determine the extent of the beneficial interest of the defendant, Mr Needham, and herself in the property at 15 Castle Lane, Olton, Solihull. She also wanted an order that the defendant, Mr Needham, should join her in effecting a sale of the property. Her application was due to come before me on 31 May in Birmingham. Immediately prior to it coming to me, on the day of the hearing a consent order was signed approved by me.”
HHJ Rawlings noted the two applications before him: the first Mr Needham’s application for a stop order and the second by Ms Ellis to vary the consent order to require Mr Needham should sign all necessary documents to enable the sale. HHJ Rawlings continued:
“What underlies the opposition of Mr Needham to the order sought by Ms Ellis and gives rise to his application for a stop order is he says the consent order should be set aside and indeed he has drafted an application to set aside the consent order, which has not yet been issued. I indicated at the start of today’s hearing I could not deal with his application to set aside the consent order, which has not been issued by the court.”
HHJ Rawlings noted that Mr Needham said he intended to issue the set aside application and said he alleged there was a misrepresentation prior to him signing the consent[37]Then I quote the central paragraph of HHJ Rawlings’ judgment, at paragraph 6:
“Mr Needham also challenges the validity of the consent order. He points to Civil Procedure Rule 40.6(7)(c), which he says requires the consent order to be signed by the legal representatives rather than the parties where there are legal representatives. This consent order he says has been signed by the parties….As I say, the application [to set aside] is not before me, but it is relevant for me to consider what prospect there would be of the consent order being set aside. CPR 40.6, in my judgment, provides a process by which the parties may submit an order to court in compliance with that rule, which a court officer would then seal and return to the parties so that it becomes an effective order. That certainly does say that where there are legal representatives, they should sign the consent order. That is, however, not what occurred here. What occurred here was that on the morning of the trial the parties agreed a consent order, it was signed by Mr Needham and Ms Ellis and it was put before me for approval by the legal representatives and it was approved by me.” (my italics) HHJ Rawlings continued: “In my judgment, CPR 40.6 has no application in the circumstances in which this consent order was presented to the court and approved. In this case, the consent order was not sent to the court to be approved by a court officer and sealed, it was presented to me as the judge due to the hear the case by the parties’ legal representatives, signed by the parties and approved by me, as a result of which the trial due to take place that day was vacated and subsequently the consent order was sealed and became effective.”
[38]At paragraph 7 HHJ Rawlings rejected the contention of misrepresentation and said:
“It could not, in my judgment, sensibly be said that Mr Needham really had entered into the consent order in reliance on a representation that Ms Ellis did not make a statement or anything like that to the estate agents prior to the consent order being signed. It seems highly unlikely, therefore, that Mr Needham would succeed in his intended application to have the consent order set aside and I will deal with the applications in the light of my conclusion on that point.”
HHJ Rawlings then rejected Mr Needham’s application for a stop order preventing implementation of the consent order, he repeated at paragraph 9 of his judgment that any application issued by Mr Needham to set aside the consent order would be highly unlikely to succeed and he also rejected the application by Ms Ellis to vary the consent order so as to require Mr Needham to implement the sale, I need not go into in any detail.[39]In short, three things are absolutely clear from that judgment by HHJ Rawlings. Firstly, the basis upon which Mr Needham articulated his intention to set aside the consent order was of an alleged misrepresentation by Ms Ellis. There was no suggestion before HHJ Rawlings of duress, a trick or that he had signed after HHJ Rawlings had signed or anything like that. Secondly, HHJ Rawlings did not adjudicate Mr Needham’s application to set aside the consent order because it was not properly constituted or formally before him. But he did suggest it was highly unlikely to succeed. Thirdly, part of the reason why was because of the weakness of the alleged misrepresentation, but also HHJ Rawlings actually rejected the submission under CPR 40.6: that the consent order was invalid under rule 40.6(7)(c) for not having been signed by the parties. That is a binding judicial determination on that point which was relevant not to the setting aside of the consent order, but to the question which was a necessary part of HHJ Rawlings’ reasoning to refuse the application for the stop order. But in the course of dealing with that, HHJ Rawlings said in terms, which I repeat:
“What occurred here was that on the morning of the trial the parties agreed a consent order, it was signed by Mr Needham and Ms Ellis and it was put before me for approval by the legal representatives and it was approved by me.”
[40]We therefore have the clearest statement by HHJ Rawlings – the judge concerned - only a few months after the day in question that he signed a consent order after it had been signed by the parties. Pausing there, it would have been, frankly, bizarre for HHJ Rawlings to have signed a consent order unless it had already been signed by both parties because otherwise he would not know what he was signing. It therefore follows that Mr Needham’s recollection, now some seven years after the event, that he signed a consent order only after HHJ Rawlings had signed it, is vanishingly unlikely to succeed on any application to set aside the consent order. Whilst I cannot make a finding of fact as I have not heard oral evidence, the overwhelming likelihood is, as Mr Aldis says, that HHJ Rawlings, only a few months afterwards, got the sequencing correct on the basis that he signed it after the parties.[41]Moreover, contrary to Mr Needham’s suggestion, HHJ Rawlings did not say he ‘signed the consent order in the morning’, he simply said ‘in the morning the parties agreed a consent order’. He does not say when they signed it, nor when he signed it. All the information that Mr Needham has unearthed over the ensuing years about the toing and froing in various PDFs in my judgment goes absolutely nowhere. Mr Needham himself accepts that he signed the consent order in the same terms as the one in his own appeal bundle. The only thing he quarrels about was that he says that if HHJ Rawlings had signed it first then he must have signed a different version. Yet he accepted before me he had not seen HHJ Rawlings sign it and therefore the only evidence he has of when he did so is that judgment I have quoted. But Mr Needham has misread that judgment. HHJ Rawlings did not say that he signed it in the morning. Therefore, the whole edifice upon which Mr Needham’s case of fraud is built is clearly, in my mind, even without hearing oral evidence, built on flawed foundations.[42]As he had indicated he would to HHJ Rawlings on 8th August 2017, Mr Needham then did formally apply to set aside the consent order for fraud (i.e. the alleged misrepresentation by Ms Ellis) and duress (by his lawyers in the terms I quoted above at paragraph [26] from that application). But unlike the proceedings before HHJ Rawlings and his judgment of 8th August 2017, Mr Needham has not obtained, as he should have done, either a transcript of hearing before HHJ Murdoch on 15th November 2018, or, perhaps even more relevantly, HHJ Murdoch’s judgment that day refusing his application to set aside the consent order and certifying it totally without merit. But in an application Mr Needham made to HHJ Murdoch for him to vary his order, he quoted several things he had noted HHJ Murdoch said, which I accept he probably did say. But, once again, HHJ Murdoch’s observations simply do not bear the significance which Mr Needham attributes to them in his overarching contention that the consent order was obtained by fraud in 2017 and his entrenched perspective that the litigation since then has failed to correct what he sees as this injustice.[43]Firstly and for example, I accept HHJ Murdoch did say that Counsel for Ms Ellis’s skeleton argument was just how he liked it. I would imagine that a professional skeleton argument drafted by experienced counsel probably was the sort of thing that HHJ Murdoch would have welcomed, just as I welcome Mr Aldis’s skeleton argument. I do not have the benefit of seeing Mr Needham’s skeleton argument before HHJ Murdoch, if he prepared one. But his skeleton argument before me today was very helpful and I welcome that too.[44]Secondly, I accept that HHJ Murdoch probably did say to Mr Needham words to the effect of:
‘I do not think you realise how difficult it would be to unpick all of this’
. Of course, with a litigant-in-person, HHJ Murdoch would not necessarily have gone into detail with the legal complexities of issue estoppel or abuse of process, which I will discuss in detail later in this judgment, but it is entirely understandable that HHJ Murdoch would have been trying to explain to Mr Needham that it would be extremely difficult to set aside a consent order, whether or not that had been adjudicated by HHJ Rawlings. It is telling the case to which HHJ Murdoch referred Mr Needham is the case Mr Needham remembers as ‘S v S’ and whilst as Mr Needham says there are several cases with that name, I suspect the one in question was S v S (Ancillary Relief: Application to Set Aside Order) [2009] EWHC 2377 (Fam), which was a case about the test to be applied when seeking to set aside a consent order in what is now called financial remedy in a divorce case. The Court must be satisfied that it was previously misled, or mistaken, or there had been some subsequent unforeseen and unforeseeable development of such significance as to invalidate the Court’s order.[45]In fact, S v S concerned a contested order rather than a consent order but, jumping ahead briefly, a broadly similar approach is taken even to consent orders in a more recent Supreme Court authority on setting aside orders, to which HHJ Murdoch may not have been referred: Sharland v Sharland [2015] 3 WLR 1070. I referred the parties to Sharland in my permission to appeal judgment and will touch on it later in considering the legal principles.[46]Thirdly, I also accept that HHJ Murdoch said in his judgment words to the effect of ‘the applicant [i.e. Mr Needham] applied to set aside the consent order on spurious grounds’, ‘it is now time for the applicant to move on’, ‘the delay has caused harm and loss to the respondent’ i.e. Ms Ellis, who was ‘dragged back into court again with an order in place’ However, there is no suggestion in anything Mr Needham recalls that HHJ Murdoch said to show that he prevented Mr Needham from making submissions, or that he could not set the order aside as HHJ Rawlings had already refused to do so. I note that is not what Mr Needham said in his own submission at the time. Instead, HHJ Murdoch dealt with the application on its merits - albeit without hearing evidence - and dismissed it by applying the authorities from an analogous field: that of setting aside orders and consent orders in matrimonial divorce proceedings rather than civil proceedings. Again, consistently with his finding that Mr Needham had made the application ‘on spurious grounds’, HHJ Murdoch also certified the application as ‘totally without merit’. Mr Needham cannot go behind that, especially without a transcript of hearing or of the judgment. In any event, as I have said, Mr Needham’s complaints today about the consent order are misconceived.[47]Therefore, Mr Needham’s suggestion that HHJ Murdoch in November 2018 in some way refused the application on an erroneous basis is not supported by any evidence. Mr Needham should have obtained a copy of HHJ Murdoch’s judgment and the transcript of the hearing to back up his submissions, but he has not done so. Indeed, his own submissions in writing to HHJ Murdoch after his order are inconsistent with his submissions to me today.[48]HHJ Murdoch’s November 2018 order was amended after seal, about which Mr Needham also complains although, of course, it is open to the Court to do so under the ‘slip rule’ if it was a minor change, which doubtless reflected the order that HHJ Murdoch had undoubtedly made that Mr Needham pay Ms Ellis’s costs. He is hardly likely to have ordered anything else and was doubtless correcting the order to say so.[49]The document from which I have already quoted Mr Needham’s recollection of parts of HHJ Murdoch’s judgment is his application to HHJ Murdoch to set aside his order submitted immediately afterwards. As he had just heard oral submissions, had given a judgment and had certified the application as totally without merit, it is hardly surprising that HHJ Murdoch did not list another hearing for an application to set aside an order he had only just given at an oral hearing. Instead, HHJ Murdoch said he was minded to strike out the application, certify it totally without merit and make a Civil Restraint Order. But before he did so, he directed written submissions from Mr Needham and indeed Ms Ellis. That, in my respectful view, was an entirely fair way of proceeding and entirely consistent with the authorities which I have already mentioned on the making of Civil Restraint Orders, which, as I have explained, do not require an oral hearing, such as Gopee. In any event, I believe Mr Needham’s written submissions are the document which I have seen.[50]In those submissions Mr Needham set out again his grounds for setting aside the consent order. That squarely alleged it had been obtained by fraud: partly alleged misrepresentation by Ms Ellis, which HHJ Rawlings had already rejected in refusing the stop order, and the argument not made by Mr Needham before HHJ Rawlings in August 2017, namely of duress and pressure by his lawyers. However, there was no contention as he has made in the present application (which he says is the ‘new evidence’) that he signed the consent order (still less a different version of it) after HHJ Rawlings and was tricked into doing so. This is why Mr Needham says the present application to set aside the consent order for fraud has ‘new evidence’ and is on different grounds than the application to set aside refused in 2018 by HHJ Murdoch. Be that as it may, having read Mr Needham’s submissions to vary his order, on 19th December 2018, HHJ Murdoch struck out the application to vary, certified it totally without merit (whilst the order says it is struck off without merit, that is simply a typo), but then in fairness to Mr Needham, did not make a Civil Restraint Order.[51]I can take the rest of the procedural history much more quickly. As I noted above, following HHJ Murdoch’s orders at the end of 2018, detailed assessment followed in 2019 and then on 7th January 2020, at an oral review, DJ Rouine ordered Mr Needham to pay Ms Ellis’ costs of the proceedings assessed at just under £15,000. Mr Needham appealed that, but permission to appeal was refused on paper by HHJ Truman on 14th May 2021. Mr Needham impermissibly appealed that refusal of permission to appeal, which there is no right to do, which was accordingly refused and certified totally without merit by Tipples J on 12th July 2021. Mr Needham also applied for an oral hearing to reconsider the refusal of permission by HHJ Truman on paper (which is why it is typically impermissible to appeal such a written refusal), but that was dismissed at a hearing by HHJ Ingram on 22nd July 2021.[52]As Mr Needham did not pay DJ Rouine’s costs order, Ms Ellis served a statutory demand in December 2021, which Mr Needham applied to set aside. That was refused on paper, but the appeal was allowed in June 2022 by HHJ Rawlings again, who remitted the application to set aside the statutory demand, but limited to the issue whether Ms Ellis ‘held security’ preventing her from serving a statutory demand, namely solicitors holding in escrow the sale proceeds of the property of £81,143.48. (I should note for completeness Mr Needham’s limited application to set aside was refused by DJ Rouine on 12th December 2023 and I refused permission to appeal and refused a stay of that order on 1st August 2024).[53]In the meantime, in May 2022, Mr Needham applied for a wasted costs order against Ms Ellis’s solicitors, having made a complaint to the Solicitors Regulatory Authority (which rejected it). That application was refused and certified as totally without merit by Deputy District Judge Leong on 5th December 2022. This then prompted HHJ Kelly to make the Limited Civil Restraint Order, to which I have referred, on 12th December 2022. I note that Mr Needham applied to set aside that LCRO, but HHJ Kelly refused that application in May 2023. That is the background to Mr Needham’s application that led to these appeals.[54]Mr Needham’s application of 20th September 2023 for ‘permission to apply’ to set aside the May 2017 consent order was referred to DJ Philips because she was one of the ‘gatekeeper judges’ for his LCRO. However, she should been referred to it purely on paper in ‘boxwork’ and could have either granted or refused it. That is the process in CPR PD 3C. However, Court staff may have overlooked that unusual procedure and wrongly listed it for a hearing before DJ Philips. But she rightly recognised that the permission application had to be determined without a hearing. I have considerable sympathy for her dealing with a mistake not of her making. That is why she vacated the hearing on the morning of 5th December 2023 itself. But Ms Ellis concedes the error having been made by staff and the parties having attended, DJ Philips should have heard representations about the best course, even if she had refused ‘permission to apply’ later on paper. Ms Ellis also accepts that such a refusal required reasons which DJ Philips did not give, which is what then led on 10th July 2024 HHJ Kelly to grant Mr Needham ‘permission to apply’ for ‘permission to appeal’ and me on 21st August 2024 to grant him the latter permission and to list this appeal hearing.[55]In those circumstances, I need not set Mr Needham’s two separate appeals and grounds of appeal against DJ Philips’ orders vacating the hearing and refusing permission to apply. It suffices to say that I consolidated both appeals and granted permission to appeal on the composite ground that DJ Philips’ orders were arguably ‘wrong’, as now conceded by Ms Ellis. Accordingly, one course in strict compliance with the procedure in PD 3C might have been for me simply to set aside DJ Philips order on appeal under CPR 52.20(2) and then re-decide Mr Needham’s application for ‘permission to apply’ on paper without a hearing under paragraph 2.6 PD 3C. However, sensibly in these rather unusual circumstances, the parties have invited me to consider the substance of that application at the hearing with oral submissions, then either grant or refuse ‘permission to apply’ by the mechanism of either varying or refusing to vary DJ Philips’ refusal of permission to apply under CPR 52.20(2).

Legal principles

[56]Ordinarily, a party seeking variation of an order can apply under CPR 3.1(7). However, in Roult v North West SHA [2010] 1 WLR 487 (which Mr Needham cited to HHJ Murdoch), the Court of Appeal confirmed CPR 3.1(7) did not apply to final orders disposing of a claim. Setting-aside final orders (like the consent order here) is based on the Court’s inherent jurisdiction. In Sharland at [27] Lady Hale recognised that setting aside a consent order based on the Court’s authority in a family case may differ from setting aside a consent order in a civil case based on contract, although at [31], she recognised analogies in a family case with mistake and misrepresentation. The ground that Mr Needham invokes in this case is fraud which is of course universal. Indeed, it is often said that ‘fraud unravels all’.[57]However, another aspect of the Court’s inherent jurisdiction to regulate its procedures is the law on ‘res judicata’ estoppel and abuse of process which I raised in my permission judgment. The leading case summarising the main strands of res judicata is the Supreme Court case of Virgin Atlantic v Zodiac [2013] 3 WLR 299, to which Mr Needham has referred. Leaving aside other concepts which do not arise, Lord Sumption differentiated three different ‘tools’ (as they might be called) which the Court has to prevent re-litigation of issues on a repetitive basis, which put broadly is a wasteful misuse of Court procedures.[58]The first tool is ‘cause of action estoppel’, which arises where a cause of action has been finally determined one way or the other. Lord Sumption described it in Zodiac at [17]:
“… once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”.”
As said elsewhere in Zodiac and as is clear from other cases like the House of Lords’ decision in Watt (formerly Carter) v Ahsan [2008] 2 WLR 17, ‘cause of action estoppel’ applies even if the decision is wrong, as it is always open to appeal.[59]The second tool that Lord Sumption discussed in Zodiac is that of ‘issue estoppel’. At [22], Lord Sumption summarised the principles of cause of action estoppel and issue estoppel confirmed by Arnold v National Westminster Bank [1991] 2 AC 93 (HL):
“(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”
[60]The third tool which Lord Sumption discussed in Zodiac at [23]-[26] is so-called ‘Henderson abuse of process’, named after the Victorian case which first developed it: Henderson v Henderson (1843) 3 Hare 100. This works differently, arising even where a cause of action has not been decided and there is not a binding issue estoppel, but where it would be an abuse of the process for a party to raise a claim, defence or argument which could and should have been raised on an earlier occasion, which unlike estoppel is decided on a ‘broad merits-based’ approach: see Johnson v Gore-Wood & Co [2002] 2 AC 1 (HL).[61]However, where a party seeks to set aside an order for fraud, whether a contested order or a consent order, cause of action estoppel and issue estoppel do not apply, as confirmed by the Supreme Court in Takhar v Gracefield Developments Ltd & Ors [2019] 2 WLR 98. As Lord Sumption said in Takhar, that claim to set aside the previous order for fraud is actually a new cause of action which does not engage either cause of action estoppel or issue estoppel. However, such a serious step does, of course, require a threshold to be met before a judgment or order is set aside for fraud.[62]Therefore, the Supreme Court in Takhar endorsed the threshold test for setting a judgment or order aside for fraud in Royal Bank of Scotland v Highland Financial [2013] 1 CLC 796 (CA) by Aikens LJ at [106]:
“[F]irst, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.”
[63]Moreover, in Finzi v Jamaican Redevelopment Foundation [2024] 1 WLR 541, to which Mr Aldis referred, the Privy Council clarified the point in Takhar that it was unnecessary for someone seeking to set aside a judgment for fraud to show that new evidence of fraud could not have been obtained with reasonable diligence before the judgment or order. The Privy Council in Finzi said that the burden would be on the claimant to establish either that: the evidence of fraud was ‘new’ in the sense that it had been obtained since the judgment or settlement; or if not, that there was a good reason why it was not deployed at the time.

Conclusions

[64]I turn finally to my conclusions on Mr Needham’s application. He says it is based on ‘new evidence’: namely what he contends was the fraud vitiating the 2017 consent[65]In my judgment, on the threshold of ‘permission to apply’ of a ‘realistic as opposed to fanciful prospect of success’ which I have adopted for reasons I have explained, I am driven to the conclusion that I must refuse Mr Needham’s application for permission to apply because it only has a fanciful prospect of success. Indeed, I go further. It is also my conclusion that his application is barred by principles of either cause of action estoppel, or issue estoppel, or Henderson v Henderson abuse of process, notwithstanding the fact that he makes allegations of fraud. I reach that conclusion for the following reasons.[66]Firstly and most simply, the basis upon which Mr Needham says that there was a fraud in this case is, in my judgment, for the reasons I have explained, based upon a fundamental misapprehension. He accepts that he signed a consent order in the same terms as the one in the bundle. He accepts that he agreed in principle, albeit ‘under protest’, to the essential terms of that order. His contention that he only signed it after HHJ Rawlings is not only extremely unlikely as it would be tantamount to HHJ Rawlings signing a blank consent order, but also it is fundamentally inconsistent with HHJ Rawlings’ own recollection of 31st May 2017 as recorded in his judgment of 8th August 2017. That judgment gives no support whatsoever for Mr Needham’s view that HHJ Rawlings signed the consent order in the morning, it simply does not say that and there is no evidence of that. Once one grasps those simple facts, the various points of chronology that Mr Needham has dug out over the years since HHJ Murdoch’s judgment all fall into place as describing a totally routine process. Two litigants turned up to trial. One, Mr Needham, felt under a degree of pressure - not inappropriate pressure but the simple ordinary pressures of his lawyers telling him the blunt realities of his case. He agreed in principle to a deal. It appears that oral agreement was announced in court to HHJ Rawlings, who was happy with it. That agreement was then written-up into a consent order which, on the face of the document itself appears to have been signed first by the parties and then HHJ Rawlings. All of that was perfectly routine.[67]Whilst I have not heard oral evidence, the burden is on Mr Needham to establish a realistic not fanciful case of fraud: here that due to the fraud by the lawyers, HHJ Rawlings signed the consent order first and then he signed it afterwards and his signature was procured by deception. If true, this would be utterly extraordinary. Whilst of course Mr Needham contends that what happened was extraordinary, the reality is that any Court is almost bound to find that his recollection is wrong and moreover, unsupported by any contemporaneous contention to that effect by him to HHJ Rawlings only a few months later. Mr Needham did not say to HHJ Rawlings in August 2017, ‘I was pressurised into it and indeed, only signed it after you had signed it, your Honour’ or anything like it. Yet if that had happened, surely he would have said so. Indeed, even in November 2018 to HHJ Murdoch, newly contending that he was put under duress by his lawyers, Mr Needham did not say that he had signed the order after HHJ Rawlings had signed it. This belief seems to have come into the head o Mr Needham years after the event and like many beliefs that Courts are used to dealing with, it is inconsistent with contemporary evidence, and is overwhelmingly likely to be found to be wrong. I do not doubt for a moment that Mr Needham has convinced himself genuinely that is the position, but the prospect of convincing a court that there was fraud by the lawyers is not just ‘fanciful’, it is totally hopeless. For what earthly purpose would they have jeopardised their careers over a fairly minor TLATA dispute ? On that ground, there is simply no realistic prospect of Mr Needham proving fraud. For that reason alone, irrespective of what follows, ‘permission to apply’ under the LCRO should be refused.[68]In any event, and even if I am wrong about that conclusion that Mr Needham’s prospects of proving fraud are ‘fanciful’, as I have said already, in my judgment, this application for permission to apply to set aside the consent order for fraud is either a ‘Henderson abuse of process’, or an ‘issue estoppel’ or even a ‘cause of action estoppel’ which I will consider in reverse order, but start with an overarching point applying to all three.[69]Although Takhar establishes that ‘Henderson abuse of process’ and ‘cause of action estoppel’ and ‘issue estoppel’ do not apply to an application to set aside a judgment for fraud, in this case there has already been an application to set aside the judgment, indeed for fraud, albeit on a different basis. In other words, it is not the impugned consent order approved by HHJ Rawlings in May 2017 which founds the cause of action estoppel, issue estoppel, or the ‘Henderson abuse of process’, nor is it HHJ Rawlings’ order in August 2017 refusing to stop implementation of his May 2017 consent order. Rather, what establishes the estoppel and abuse of process are the orders of HHJ Murdoch in 2018.[70]That makes this case very different from Takhar. Inthat case (with which I am very familiar having heard the re-trial: Takhar v Gracefield (No.2) [2024] EWHC 11714 (Ch)), the original judgment was obtained by fraud: in fact, forgery by the defendants of the claimant’s signature on a property document. The evidence of forgery had been available to the unsuccessful claimant before the original trial but in short, she failed to get handwriting evidence in time to prove her signature was a forgery. After she lost, she then made a subsequent claim to set aside the judgment for fraud. The issue for the Supreme Court in Takhar was whether she had to show she acted with reasonable diligence before the original judgment and the Court held that she did not, in short as ‘fraud unravels all’. However, in Takhar, Finzi and other relevant cases, there was no intervening application to set aside the judgment for fraud which was refused, especially one where the application was made on the grounds of fraudulent misrepresentation, as Mr Needham accused Ms Ellis of before not only HHJ Rawlings in August 2017 but also HHJ Murdoch in November and December 2018. His orders, which were not appealed as Mr Needham accepts, found ‘Henderson abuse of process’, ‘issue estoppel’ and ‘cause of action estoppel’, although for slightly different reasons as I shall explain in turn.[71]The reason why Judge Murdoch’s judgment creates a ‘Henderson abuse of process’ is because Mr Needham never argued before HHJ Murdoch in November 2018 or Deecember 2018 what he has now argued before me - that the consent order was procured by fraud by his lawyers. Teasing apart his application to HHJ Murdoch, his first point was that Ms Ellis had fraudulently) misrepresented whether she had instructed estate agents, which was considered weak by HHJ Rawlings in the course of determining the stop order application in August 2017 and rejected by HHJ Murdoch in November/December 2018. Mr Needham’s second strand was that he was put under duress not fraud by his own lawyers; that was rejected by HHJ Murdoch. The third version, developed before me today, that Mr Needham signed the consent order after HHJ Rawlings had signed it, fraudulently produced by his own lawyers, was never argued by him in 2017 or 2018. That is, therefore, a failure to raise an argument of fraud, effectively, before both HHJ Rawlings and HHJ Murdoch.[72]I accept part of what Mr Needham relies in this new version is ‘new evidence’ relating to the circumstances in which the consent order was made which he did not obtain until 2019 or 2020. However, Finzi does not apply directly, because we are considering a failure to raise a point not just at the time of the impugned order but at the time of an application to set it aside – indeed for fraud. Here, ‘Henderson abuse of process’, which is open-textured and on a ‘broad, merits-based approach’, as explained in Zodiac and Johnson, can bite. As stressed in Johnson, it will usually only do so if the re-litigation of the case would be oppressive or unduly harassing but I am satisfied that is true here. Mr Needham has not let this issue go for years. He has argued it again and again in different forms – before HHJ Rawlings in August 2017, before HHJ Murdoch in 2018 (which he did not appeal) and now again in 2023-2024. So, a consent order is still in issue seven years later. That, in my judgment, does amount to oppressive and harassing conduct and is an abuse of process even if Mr Needham has genuinely – but wrongly - convinced himself of the justice of his cause.[73]In any event, it goes further than that, because HHJ Murdoch has decided the issue of the variation of the consent order and has rejected the issues of misrepresentation and duress. That creates a straightforward issue estoppel in relation to those issues. In other words, the duress argument is simply no longer open to Mr Needham because it has been considered and rejected by HHJ Murdoch. Mr Needham would have to show special circumstances to re-open that issue now and he cannot do so for the reasons I have just said, even if I am wrong that it is a ‘Henderson abuse of process’. The only thing ‘special’ about these ‘circumstances’ is Mr Needham’s dogged refusal to accept the validity of the consent order. Moreover, since we are concerned with a previous application to set aside, rather than the previous order or judgment itself as in Takhar, for the reasons in Zodiac, if Mr Needham could with reasonable diligence have pursued the present ‘fraud’ point in the set-aside application before HHJ Murdoch in 2018, that point is now ‘issue-estopped’ as well. Whilst Mr Needham obtained some of the information he relies on in 2019-2020, it is not clear why he could not have obtained it earlier, especially as his (almost certainly mistaken) understanding of HHJ Rawling’s August 2017 judgment about ‘the morning’ was available well before the application to HHJ Murdoch. In short, ‘issue estoppel’ bites and prevents re-litigation of misrepresentation by Ms Ellis, duress by Mr Needham’s lawyers and fraud by his lawyers in the construction and drafting of the consent order. It therefore follows that it is simply not open to Mr Needham to take any of these points at this stage.[74]Finally, and for good measure, there is in my judgment, a cause of action estoppel anyway. As explained in Takhar, an application to set aside a judgment for fraud and indeed for misrepresentation is a fresh cause of action, whether or not it has been litigated as such. HHJ Murdoch (understandably, the year before Takhar) may have treated the application to re-open or set aside the consent order for fraud as an application in the same proceedings but, in substance rather than from, he was determining a fresh cause of action.[75]Since that application to HHJ Murdoch was an application to set aside for fraud (albeit on a different basis: Ms Ellis’ alleged misrepresentation), it therefore follows that the application to set aside for fraud is a cause of action which has already been decided and failed. That creates a cause of action estoppel which cannot be re-opened, even in special circumstances. For those reasons, Mr Needham’s applications are bound to fail and, indeed, I am driven to conclude an abuse of process and I would certify them totally without merit. I deal with the other three of Mr Needham’s points shortly, because they are misconceived.[76]The first point is that the consent order did not comply with CPR 40.6(7)(c). Even if I am wrong on everything else, there is definitely an issue estoppel in relation to that because it was a necessary part of HHJ Rawlings’ reasoning in August 2017 and he refused that application and there are no special circumstances to re-open it. That ground must fail.[77]Secondly, Mr Needham argues he signed the consent order under duress because he did not have sufficient time to consider it. Even if I am wrong on the issue estoppel point, as Mr Aldis suggests, duress in those circumstances of the signature of a court order is a very high threshold indeed, following Watson v Sadiq [2013] EWCA Civ 822, a case where the judge, rather than the lawyers, put pressure on a party to settle but there was no finding of duress. Indeed, as McCombe LJ explained in Watson and as every lawyer knows, the pressures Mr Needham is describing in this case as ‘remarkable’ are ordinary pressures on every litigant when they are settling discussions on the day of the trial. There was no arguable duress.[78]Mr Needham’s third point is the parties’ signatures are invalid because HHJ Rawlings did not sign the final version of the consent order. That is not open to Mr Needham either, because it is clear from the judgment of HHJ Rawlings that he did sign the consent order and it is accepted that that was the consent order before HHJ Rawlings. In any event, as Mr Aldis submits, the factual contention by Mr Needham is plainly hopeless and inconsistent with Judge Rawlings’ own later judgment.[79]Finally, although Mr Needham has not pursued it at all before me today, the suggestion the consent order breaches section 11 of the Trustee Act 2000 is hopeless because, of course, the consent order was an implementation of s.14 TLATA and, indeed, paragraph 2 of Practice Direction 40D as to the adjudication of the proceeds of sale.[80]It follows that for those reasons I refuse the application to set aside the refusal of permission to apply to vary the consent order by DJ Phillips. Moreover, whilst given the concessions about her orders, I would not of course certify the appeal itself as totally without merit, in my view, for reasons I have now given in detail, I agree with DJ Philips that Mr Needham’s application for permission to apply to set aside is totally without merit and I will so certify. 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Order

“Leave for the institution or continuance of, or for the making of an application in, any civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.” I specifically drew the parties’ attention to that in my permission to appeal judgment. order: “The [alleged] misrepresentation was that Ms Ellis had not, before Mr Needham signed the consent order, instructed the estate agents to deal with the sale of the property, whereas, in fact, as a result of inquiries he has made subsequent to the consent order being signed…on his case they had been instructed by Ms Ellis to proceed prior to the hearing. The basis for that, he says, is a conversation he had with the estate agent, during the course of which a Ms Booth told him the estate agent had been definitely told by Ms Ellis the sale would definitely be going ahead. That is how it was put by Mr Needham.” order: his assertion HHJ Rawlings signed a different version before he did; and that his signature was procured by deception by his lawyers.

Cited in 1 later judgment