Couper & Ors v Albion Properties Ltd & Ors [2017] EWHC 22 (Ch)

Case No HC06C04432[2017] EWHC 22 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 16 January 2017
Before
THE HON MR JUSTICE ARNOLD
Between
MAX COUPERClaimantsTHE TRUSTEES OF THE COUPER COLLECTION CHARITABLE TRUSTClaimantALBION PROPERTIES LIMITEDDefendantsPORT OF LONDON AUTHORITYDefendantHUTCHISON WHAMPOA PROPERTIES (EUROPE) LIMITEDDefendantMAGDALENA COUPERIntervener
Andrew Burr (instructed by the Bar Pro Bono Unit) for First ClaimantJoseph Ollech (instructed by Joanne Dowson) for Second Defendant and the High Court Enforcement Officer for The Second Claimants, the First and Third Defendants and the Intervener did not appear and were not representedHearing Hearing date: 14 December 2016
JudgmentMR JUSTICE ARNOLD :ContentsTopic Paras Introduction 1-3 Events since the Main Judgment 4-68 Mr Couper’s appeal against Master Teverson’s order dated 3 December 2014 69-79 Mr Couper’s application dated 26 March 2015 80-82 Mr Couper’s application dated 1 May 2015 83-84 Mr Couper’s application dated 5 June 2015 85-86 Mr Couper’s application dated 25 October 2016 87 Mr Couper’s application dated 21 November 2016 88 The PLA and the HCEO’s application apart from for an ECRO 89 The PLA and the HCEO’s application for an ECRO 90-100Introduction
[1]As long ago as 8 October 2013, I handed down judgment in this matter ([2013] EWHC 2993 (Ch), “the Main Judgment”) following a three week trial in June and July 2013. As explained in the Main Judgment, the trial was the culmination of proceedings commenced as long ago as 2006 in relation to disputes which commenced as long ago as 1998. At the end of the Main Judgment, I said:
“This saga must now come to an end”
. It is a matter of considerable surprise, and even more regret, to find that the saga is still ongoing more than three years later. In this judgment I shall assume that the reader is familiar with the Main Judgment and I shall use the same nomenclature and abbreviations.[2]For the reasons given in the Main Judgment, I dismissed all the Claimants’ claims and held that APL and the PLA were entitled to the declarations sought by their respective counterclaims. On 29 November 2013 I made an order to give effect to those conclusions (“the Main Order”). Paragraph 7 of the Main Order required the Claimants in effect to vacate HWPL’s land by 10 January 2014, save that the order did not apply to the Hope until the determination of an application by the Intervenor, Mrs Couper (as to which, see below). Paragraph 10 of the Main Order required the Claimants to vacate the PLA’s land by 10 January 2014.[3]I now have before me a number of applications by Mr Couper and an application by the PLA concerning the enforcement of paragraph 10 of the Main Order. The PLA’s application also seeks an extended civil restraint order against both Mr and Mrs Couper. Although Mrs Couper was served with the application, she did not serve evidence in answer to it or appear to resist it. In those circumstances I shall proceed on that basis that she has no separate basis for resisting the application to Mr Couper.

Events since the Main Judgment

[4]On 29 October 2013 Mr Couper and the Trustees filed an appellant’s notice seeking permission to appeal against the Main Judgment (strictly, the order which was to be made consequential upon the Main Judgment).[5]On 29 November 2013 there was a hearing before me as to the form of order which should be made consequential upon the Main Judgment. At the hearing, there was an oral application by Mrs Couper that she be joined as a party to the proceedings to assert her and her daughter’s rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I directed that Mrs Couper’s application be adjourned to be heard in the week commencing 6 January 2014 and that she should file any evidence she wished to rely on by 13 December 2013.[6]In the Main Order I ordered the Claimants to pay the Defendants’ costs of the claims and counterclaims to be assessed on the indemnity basis. An after the event insurance policy for the sum of £550,000 arranged by the Trustees paid about half of these costs, but the other half remains outstanding.[7]On 13 December 2013 Mrs Couper filed a witness statement which was partly in support of her application and partly seeking more time in which to deal with the application.[8]On 31 December 2013 Mrs Couper made a without notice application to the vacation judge for an adjournment of the hearing of her application which had been fixed for 7 January 2014. David Richards J (as he then was) refused to make an order without notice, and directed that any application be made on notice at the hearing before me.[9]On 7 January 2014 I dismissed a further application by Mrs Couper for an adjournment and proceeded to dismiss her application to be joined to the proceedings for the reasons given in my judgment of that date ([2014] EWHC 265 (Ch)). Accordingly, I ordered that paragraph 7 of the Main Order should have effect in relation to the Hope.[10]On 9 January 2014 Lewison LJ granted Mr Couper and the Trustees a stay of execution of the Main Order until the determination of their application for permission to appeal, and directed an oral hearing of that application. That was subsequently fixed for 3 March 2014.[11]On 24 or 27 January 2014 Mrs Couper filed an appellant’s notice seeking permission to appeal against my order of 7 January 2014.[12]Mr Couper has exhibited to one of his witness statements an advice obtained by an organisation called Charles Henry from Michael Shrimpton of counsel dated 17 February 2014 and an advice obtained by the Bar Pro Bono Unit from Jan Luba QC (as he then was) dated 19 February 2014, both of which concerned the merits of Mrs Couper’s appeal against the order dated 7 January 2014. Although both the advices were prepared for the purposes of an application by Mrs Couper for legal aid, it is not clear to me that any application was made. If one was made, it does not appear to have been granted.[13]On 3 March 2014 Lewison LJ refused Mr Couper and the Trustees permission to appeal against the Main Judgment at the oral hearing of their application. He also discharged the stay granted on 9 January 2014 save that the stay of paragraphs 7 and 10 was continued until 1 April 2014.[14]On 28 March 2014 the Trustees applied for a stay of execution of the Main Order, but on 17 June 2014 the Trustees requested dismissal of this application and 27 June 2014 Deputy Master Meacher duly dismissed it. Since then, the Trustees have co-operated with the PLA in its efforts to enforce the Main Order and have dissociated themselves from Mr Couper’s efforts to frustrate enforcement.[15]On 30 June 2014 Vos LJ refused Mrs Couper permission to appeal against the order dated 7 January 2014 on paper, holding that the appeal had no real prospect of success.[16]On 14 September 2014 the PLA appointed Nicholas Todd of Burlington Credit Ltd as High Court Enforcement Officer (“the HCEO”) to enforce the Main Order. On 17 September 2014 a writ of possession was issued on the PLA’s application. (A total of four writs of control have also been issued by way of enforcement of costs orders made in favour of APL, HWPL and the APL, but I shall largely ignore these for the purposes of this judgment.)[17]On 30 September 2014 the HCEO took possession of the barges. The HCEO’s evidence is that, at that time, Mr Couper and his family were not residing on any of the barges, but rather at an address in Prince of Wales Drive, London SW11 4SA. The HCEO’s agent Jonathan Chatfield met Mr Couper that day and offered to collect any items from the barges Mr Couper needed for his immediate legal, medical or personal needs, and Mr Couper went on board and removed a few items.[18]It should be noted that, as at that date, Mr Couper had not cleared the barges of their contents, despite the fact that over six months had elapsed since the expiry of the stay of paragraphs 7 and 10 of the Main Order and nearly ten months had elapsed since the making of the Main Order. It should also be noted, after 30 September 2014, the HCEO offered Mr Couper access to the barges upon notice, albeit only under supervision. On 16 November 2014 Mr Couper attended with a friend and removed four bags and boxes.[19]On 14 October 2014 the HCEO applied to the Master for sanction of various proposed enforcement steps. The application was listed before Master Teverson on 21 October 2014.[20]On 20 October 2014 an application was issued by Mr Couper in the name of Mr and Mrs Couper’s daughter Massimiliana (“Miss Couper”) for an adjournment of the HCEO’s application to “bring a claim under Article 8” and for a litigation friend to be appointed. This application was also listed before Master Teverson on 21 October 2014.[21]On 21 October 2014 Master Teverson dismissed Miss Couper’s application for the reasons given in his judgment of that date ([2014] EWHC 4721 (Ch)), and adjourned the HCEO’s application to 4 November 2014 with directions for the service of evidence in the meantime.[22]Also on 21 October 2014 Mrs Couper filed an application to the Court of Appeal for an extension of time for seeking an oral hearing of her application for permission to appeal following Vos LJ’s refusal on paper. On 23 October 2014 an application was filed by Mr Couper in the name of Miss Couper for her to be joined to Mrs Couper’s application and to have a litigation friend appointed.[23]By an application dated 23 October 2014 (sealed 28 October 2014) Mrs Couper applied to the Court of Appeal for a stay of execution.[24]On 28 October 2014 Mr Couper issued an application to the Master for a stay of execution and “withdrawal” of the writ of possession. This application was listed for hearing Master Teverson on 4 November 2014.[25]On 30 October 2014 Mrs Couper filed an application to the Court of Appeal for stay of execution of the order dated 7 January 2014 and for a stay of the writ of possession. This application was dismissed by Patten LJ on paper on 31 October 2014.[26]Also on 31 October 2014 Mr Couper filed an application to the Court of Appeal to re-open his appeal against the Main Judgment on the basis of “new evidence”.[27]On 4 November 2014 Mrs Couper renewed her application dated 30 October 2015 orally before Lewison LJ, who dismissed the application as being totally without merit. Counsel for the PLA and the HCEO invited Lewison LJ to make a general civil restraint order against Mr and Mrs Couper, but Lewison LJ made no order in that regard.[28]Later on 4 November 2014 Master Teverson dismissed Miss Couper’s application dated 20 October 2014 as being totally without merit and adjourned the HCEO’s application again to 3 December 2014 with directions for the obtaining of expert evidence as to valuation and storage of the artworks located on the barges. Counsel for the PLA and the HCEO invited Master Teverson to make a limited civil restraint order against Mr Couper, but Master Teverson made no order in that regard.[29]On 6 November 2014 Mr and Mrs Couper issued an application to the Master for a stay of execution of two writs of control. This application was listed before Master Teverson on 3 December 2014.[30]On 3 December 2014 Master Teverson dismissed Mr and Couper’s application dated 6 November 2014 as being totally without merit and made orders for the enforcement of the Main Order pursuant to the HCEO’s application. Paragraph 1 of Master Teverson’s order gave the Claimants until 5 December 2014 to remove all documents, tools, artwork and other chattels from the barges. Paragraph 3 provided that, save with respect to painted artworks and perishable items which had been earmarked by the Trustees for storage, thereafter the HCEO would hold any remaining chattel as involuntary bailee with authority to sell or otherwise dispose of them. Paragraph 3b provided that, in the case of the painted artworks and perishable items which had been earmarked by the Trustees for storage and which were not collected by the Trustees by 5 December 2014, the HCEO would hold them as involuntary bailee in storage until 4 May 2015 with authority to sell or otherwise dispose of them thereafter. Paragraph 5 authorised the HCEO to move the barges from APL’s land to a midstream mooring provided by the PLA from 8 December 2014. Paragraph 7 authorised the HCEO to sell eight of the 10 barges if the Claimants failed to collect them by 16 January 2015. Paragraph 8 authorised the HCEO to remove the Bay Berg and the Arctic Sun (which are wholly owned by the Trustees) from the PLA’s land and to retain control of them. Paragraph 9 directed the HCEO to seek further directions with respect to the Bay Berg and the Arctic Sun if the Claimants failed to collect them by 4 May 2015.[31]On 4 December 2014 Mr Couper applied without notice to the applications judge, Mann J, for a stay of Master Teverson’s order the day before. Mann J required Mr Couper to give informal notice of the application to the PLA. After hearing both parties, Mann J dismissed Mr Couper’s application.[32]On 5 December 2014 Mr Couper applied without notice to the Admiralty Master in the Queen’s Bench Division, Master Cook, who rightly refused to hear him.[33]During the period from 3 to 5 December 2014 Mr Couper made no attempt to remove his chattels from the barges.[34]In mid-December 2014 the HCEO moved the barges to the PLA’s midstream mooring in accordance with paragraph 6 of Master Teverson’s order dated 3 December 2014. Since then, APL and HWPL have had no further interest in the matter (apart from recovering costs), and consequently have ceased to play an active role in the proceedings.[35]On 15 December 2014 a solicitor acting for Mr Couper (as I understand it, pro bono) requested that Mr Couper be afforded access to three of the barges, namely the Z6, Capricorn and Bay Berg, to collect his papers relating to the ongoing litigation. Mr Chatfield replied the same day saying:
“If you can let me know what papers, books and records [Mr Couper] would like me to retrieve I will do my very best to make sure that they are collected and delivered to you as soon as possible.”
[36]Mr Couper’s solicitor relayed a reply from Mr Couper later the same day in the following terms:
“He is asking the impossible of knowing which documents I want among documents the equivalent of bulk of 8 or 900 lever arch files distributed among 8 barges and the impossibility of him identifying any of those docs – as nothing is indexed.”
[37]On 17 December 2014 Mr Chatfield sent an email to Mr Couper’s solicitor saying:
“I managed to remove all of the paperwork from Z6 and it’s in secure dry storage. I will also arrange to have all the paperwork uplifted from Capricorn and Bay Berg. Can you let me know where you want it delivered to?”
There was no substantive response to this request prior to 16 January 2015.[38]On 16 January 2015 (the date specified in paragraph 7 of Master Teverson’s order dated 3 December 2014) Mr Couper filed an appellant’s notice seeking permission to appeal out of time and permission to appeal against Master Teverson’s orders dated 21 October, 4 November and 3 December 2014 and a stay of execution. In support of his application for an extension of time, Mr Couper stated in section 9 of the appellant’s notice:
“I apply for an extension of time because all my legal papers were seized and expropriated by the PLA and the PLA HCEO at the end of December 2014, which has caused total chaos with my ability to appeal earlier than now.”
Mr Couper’s statement that “all my legal papers were seized and expropriated by the PLA and the PLA HCEO at the end of December 2014” was untrue, as I shall explain in more detail.[39]On the same date Mr Couper applied without notice to the applications judge, Birss J, for a stay of execution of paragraph 7 of Master Teverson’s order dated 3 December 2014. Birss J made an order staying paragraph 7 until 14 days after determination of Mr Couper’s application for an extension of time for filing the appellant’s notice or further order in the meantime. A note of the hearing prepared by counsel who assisted Mr Couper under the CLIPS scheme records the following:
“Ultimately my proposal, with which [the Judge] agreed, was that we should tie the stay to your [i.e. Mr Couper’s] appellant’s notice and the determination of whether it should be allowed to proceed – which required both permission and an extension of time. The first thing to be considered would be the extension, and so it made sense to provide that the stay would hold the position until that had been allowed or rejected. I observed that since you might not immediately know the outcome of the extension application, some margin should be allowed to ensure that the stay did not fall away without you knowing it. The Judge agreed and suggested 14 days.”
[40]On 23 January 2015 Mr Couper’s solicitor sent an email to Mr Chatfield asking for Mr Couper’s tools and goods of trade and continuing:
“How many boxes does the PLA HCEO hold of all the items that were in the store/archive room on the Z6 – so storage can be found and delivery taken of these boxes as you have kindly undertaken to do? This includes medical, legal and charity papers, photographs and computer equipment.”
[41]Mr Chatfield replied the same day saying:
“There are between 12 and 15 boxes of papers from the Z6 which contain a mixture of papers. It would appear that Mr Couper is not entitled to receive any charity papers but happy for consent to be sought from the Trustees for them to be released to him. I would obviously not stop him having access to any legal or medical papers and have offered this to him on many occasions even though he continues to suggest we haven’t. Mr Couper knows the extent of his legal papers. Please tell me where they are to be delivered or can some of them be disposed of? Can you also acknowledge that throughout my dealings I have always maintained this position?”
[42]On 27 January 2015 Mr Couper’s solicitor replied saying that Mr, Mrs and Miss Couper were attempting to find a place for the 12-15 boxes of papers from the Z6 to be delivered to and asking for papers from the Capricorn, Bay Berg and Arctic Sun to be delivered “once a place has for them has been found”.[43]Also on 27 January 2015 Mr Couper’s appellant’s notice came before Birss J on paper. By paragraphs 1 and 2 of his order of that date (which was sealed on 2 February 2015) Birss J granted Mr Couper permission to appeal out of time against Master Teverson’s order dated 3 December 2014, but refused him permission to appeal out of time against Master Teverson’s orders dated 21 October and 4 November 2014. Birss J recorded that, in his view, Mr Couper’s reason for seeking an extension of time, namely that his legal papers were seized in December 2014, justified an extension of time for appealing the last order, but not the earlier two. It is therefore clear that Birss J was misled by Mr Couper’s statement in his appellant’s notice quoted above.[44]Paragraph 3 of Birss J’s order dated 27 January 2015 directed Mr Couper to file an appeal bundle including in particular transcripts of Master Teverson’s judgments of 21 October, 4 November and 3 December 2014 within 35 days of service of the order, and paragraph 5 granted Mr Couper transcripts of those three judgments at public expense. Paragraph 4 provided as follows:
“Paragraph 7 of the Order of Master Teverson dated 3rd December 2015 [sic] is stayed until 14 days after the date of the appeal bundle.”
[45]It is clear that the reason why Birss J made the orders in paragraphs 3, 4 and 5 was that, at that stage, he had only granted Mr Couper permission to appeal out of time against the order dated 3 December 2014. Birss J had not granted Mr Couper permission to appeal on the merits against that order, for the very good reason that Birss J was not in a position to decide whether or not to grant permission to appeal on the merits until Mr Couper had filed an appeal bundle, and in particular copies of the transcripts of the judgments (most importantly, of course, the judgment dated 3 December 2014). It is also clear that Birss J intended to decide whether or not to continue the stay once the appeal bundle had been filed, no doubt at the same time as deciding whether or not to grant permission to appeal on the merits.[46]In my judgment the effect of paragraph 4 of Birss J’s order upon its true construction was that the stay endured until 14 days after the date by which the appeal bundle was due to be filed, or 14 days after the date on which the appeal bundle was actually filed if earlier. If the appeal bundle was not filed by the date required by paragraph 3, and if no extension of time for filing the appeal bundle was obtained, then the stay lapsed.[47]Birss J’s order dated 27 January 2015 included a provision permitting any party to apply by letter to set it aside or vary it within seven days of service. On 5 February 2015 the PLA wrote to the High Court Appeals Office requesting that Birss J’s orders dated 16 and 27 January 2015 be set aside. The PLA’s application was listed for hearing in a window from 10 June 2015.[48]Mr Couper did not file an appeal bundle until long after 35 days from service of Birss J’s order dated 27 January 2015. Nor did he seek, let alone obtain, an extension of time for doing so. I shall return to this aspect of the matter below.[49]On 26 March 2015 Mr Couper issued an application to a judge for various kinds of relief, and in particular a stay of enforcement by the PLA and the HCEO. The application notice requested that the application be dealt with without a hearing. The application was plainly not suitable for being dealt with on paper. This application was not listed for hearing, however, and remains outstanding.[50]In support of his application dated 26 March 2015 Mr Couper made a witness statement dated 23 March 2015. This is a lengthy (70 paragraphs), rambling and highly tendentious document in which Mr Couper asserted, among other things, that he could not complete his appeal bundle for his appeal from Master Teverson’s order dated 3 December 2014 until the PLA had released and delivered up to him his legal, medical and other papers. Nevertheless, Mr Couper exhibited to this statement a number of relevant documents, including(i) the transcript of the proceedings before Master Teverson on 21 October 2014,(ii) the judgment of Master Teverson dated 21 October 2014,(iii) an incomplete copy of the transcript of the proceedings before Master Teverson on November 2014, from which it appears that the complete transcript includes his ruling that day,(iv) the transcript of the proceedings before Master Teverson on 3 December 2014 and(v) Master Teverson’s judgment dated 3 December 2014. It is therefore clear that Mr Couper had copies of all of those documents by that date.[51]On 1 May 2015 Mr Couper applied without notice to the applications judge, Henderson J (as he then was), for various kinds of relief, and in particular a stay of paragraphs 3b, 8 and 9 of Master Teverson’s order dated 3 December 2014. Henderson J made an order that paragraph 3b, 8 and 9 of that order be stayed until the determination of the PLA’s application to set aside Birss J’s orders of 16 and 27 January 2015 and that the PLA and the HCEO had permission to apply to set aside or vary his order. The remainder of this application remains outstanding.[52]On 29 May 2015 Mr Couper’s solicitor sent the PLA, Mr Chatfield and others an email saying that Mr Couper had found storage for the boxes of papers removed from the Z6 and asking for them to be delivered to the solicitor’s offices. This was duly done on 3 June 2015.[53]On 5 June 2015 Mr Couper again applied without notice to the applications judge, Asplin J. Counsel who assisted Mr Couper under the CLIPS scheme notified the PLA of Mr Couper’s application by telephone. As a result, the PLA wrote to the judge requesting that proper notice be given. Asplin J duly required Mr Couper to apply on proper notice to the PLA.[54]On 9 June 2015 Mr Couper renewed his application dated 5 June 2015 on notice to the PLA before Asplin J. At the hearing the PLA withdrew its application dated 5 February 2015 to set aside Birss J’s orders dated 16 and 27 January 2015. By paragraph 2 of her order, Asplin J directed Mr Couper to provide the HCEO with a written request for any legal and medical documents needed for his appeal by 24 June 2015. By paragraph 3, she ordered the HCEO to use his best endeavours to deliver up the requested documents by 1 July 2015. The remainder of Mr Couper’s application remains outstanding.[55]On 24 June 2015 Mr Couper duly sent Mr Chatfield a list of the documents and other items he required. The list is a lengthy and rambling document which often describes the items requested in very unclear ways, but I should note that it did include, on page 8 under the heading “Z6”, two items described as “Lacy Hard-drive data back-up machine” and “Apple computer”. On 25 June 2015 Mr Chatfield recovered 14 teacrates and 6 archive boxes of documents (plus three small boxes of baby clothing, books and toys). On 26 June 2015 Mr Chatfield notified Mr Couper that these items were available for delivery, and on 29 June 2015 they were delivered to Mr Couper’s solicitor’s office. Mr Chatfield’s estimate is that there were 100-120 files at most. Mr Chatfield did not recover or deliver the Apple computer or Lacy hard-drive, however. Those items were outside the scope of Asplin J’s order and were properly under the HCEO’s control pursuant to the writs of control. No complaint was made about this by Mr Couper at the time.[56]On 2 July 2015 Floyd LJ heard Mrs Couper’s application dated 21 October 2014 and the application on behalf of Miss Couper dated 23 October 2014 and dismissed them both as being totally without merit.[57]Between late July 2015 and late June 2016 there were protracted negotiations (mainly without prejudice) between Mr Couper and the PLA via an insolvency practitioner instructed on behalf of Mr and Mrs Couper, Jeremy Knight, but no agreement was concluded.[58]On 11 August 2015 the PLA issued an application (dated 10 August 2015) for an extended civil restraint order against Mr Couper. This was listed for hearing on 13 October 2015. On 12 October 2015 Mr Couper made an application without notice to the applications judge, Warren J. It is not clear what happened on that occasion. The PLA’s evidence is that Warren J telephoned Ms Mashiter of the PLA to inform her that he was adjourning the PLA’s application. Two documents exhibited by Mr Couper to his witness statements suggest different versions of events. One, an email from Mr Knight dated 12 October 2015 at 14:29, suggests that Warren J’s clerk was unable to contact anyone at the PLA. The other, an email from Joanne Dawson of the PLA of the same date at 16:45, suggests that Ms Mashiter agreed to an adjournment. Either way, no order appears to have been drawn up, and this episode remains rather mysterious. Although it would appear that, strictly, the PLA’s application remains outstanding, I was invited by counsel for the PLA and the HCEO to treat it as superseded by the PLA and the HCEO’s application dated 2 August 2016 (as to which, see below).[59]On 18 February 2016 Mr Couper requested the dismissal of his application dated 31 October 2014 to re-open his appeal to the Court of Appeal, and it was duly dismissed by an order of Master Bancroft-Rimmer dated 25 February 2016. Accordingly, Mr Couper has exhausted his ability to challenge the Main Judgment and the Main Order.[60]On 2 August 2016 the PLA and the HCEO issued an application to a judge seeking three main kinds of relief:(i) to set aside Birss J’s order dated 27 January 2015 and to lift any stays that remained in place,(ii) renewed directions for enforcement modelled upon those made by Master Teverson on 3 December 2014 and(iii) an extended civil restraint order against Mr and Mrs Couper. This application was listed to be heard in a window of 2 to 4 November 2016.[61]On 9 August 2016 Mr Knight sent the PLA and Mr Chatfield an email requesting delivery to Mr Couper of his (Apple) computer and (Lacy) data back-up machine. So far as I can see, this was the first time these items had been requested since 24 June 2015.[62]During the night of 3-4 September 2016 the Capricorn sank at its mooring. It provided difficult to raise, and a specialist, heavy duty lifting crane owned by a Dutch company had to be employed. This work cost over £77,000. The Capricorn was subsequently towed to a scrap-yard to be broken up, but no value will be obtained from it from it due to the waste it contains.[63]On 25 October 2016 Mr Couper issued an application (dated 24 October 2016) to a judge for various forms of relief including an “adjournment of the current litigation”. The application was supported by a witness statement of the same date with a considerable number of exhibits. One of the matters which Mr Couper complained about in the witness statement was the failure of the PLA and the HCEO to return to him his Apple computer and Lacy hard drive data back-up machine.[64]Also on 25 October 2016 Mr Couper lodged an “interim” appeal bundle in respect of his appeal against Master Teverson’s order dated 3 December 2014. This bundle consists of, and only of, copies of Mr Couper’s application notice dated 25 October 2016 and of the supporting witness statement and exhibits.[65]I note from the court file that on 1 November 2016, in consequence of Mr Couper having lodged the “interim” appeal bundle, the Chancery High Court Appeals Office referred to the matter back to Birss J to consider on paper whether to grant Mr Couper permission to appeal on the merits. In the event, Birrs J did not deal with the matter, I presume because of the pendency of the PLA and the HCEO’s application which at that stage was listed for hearing that week. Clearly it made sense for the judge hearing that application to deal with the application for permission to appeal as well.[66]Also on 1 November 2016 Mr Couper’s application dated 24 October 2016 came before the applications judge, Hildyard J. As Hildyard J was informed, by then the HCEO had searched for and found the Apple computer. The HCEO agreed to deliver the computer up to Mr Couper, and that was done the same afternoon. The HCEO also agreed to continue to search for the Lacy hard drive data back-up machine, but it has not been found. Hildyard J adjourned Mr Couper’s application to be heard together with the PLA and the HCEO’s application after 21 November 2016. Subsequently the applications were listed for 13 or 14 December 2016. Thus Mr Couper’s application remains outstanding, apart from the question of the Apple computer and Lacy hard drive data back-up machine.[67]On 21 November 2016 Mr Couper issued a further application to a judge. This was listed to be heard with Mr Couper’s application dated 24 October 2016 and the PLA and the HCEO’s application. Again, therefore, this application remains outstanding.[68]On 7 December 2016 Mr Couper issued an application to adjourn the hearing listed for 13 or 14 December 2016. On 12 December 2016 the applications judge, Henry Carr J, refused this application.

Mr Couper’s appeal against Master Teverson’s order dated 3 December 2014

[69]As explained above, Mr Couper filed his appellant’s notice on 16 January 2015. That was about three weeks after the expiry of the period for appealing from Master Teverson’s order dated 3 December 2014. Birss J granted Mr Couper permission to appeal out of time, but he was induced to do so by Mr Couper’s misrepresentation that “all my legal papers were seized and expropriated by the PLA and the PLA HCEO at the end of December 2014”. The true position was that:(i) Mr Couper had had plenty of time to remove his papers both before and after the HCEO took possession of the barges;(ii) Mr Couper had in fact removed some of his papers on 16 November 2014;(iii) Mr Chatfield had offered to retrieve any other papers Mr Couper wanted;(iv) Mr Chatfield had retrieved all of the papers from the Z6 and offered to deliver them to Mr Couper, but Mr Couper had not taken up that offer;(v) Mr Chatfield had made the same offer in respect of papers from the Capricorn and Bay Berg, but Mr Couper had not taken up that offer either; and(vi) Mr Couper must have had copies of the key documents from the hearings before Master Teverson on 21 October, 4 November and 3 December 2014 apart from the transcripts anyway, both because those hearings occurred after the HCEO took possession of the barges on 30 September 2014 and because Mr Couper was resident elsewhere by the latter date (which was why Mr Couper was able to file his appellant’s notice on 16 January 2015). I would add that Mr Couper was represented by solicitors and counsel at the trial and no doubt could have obtained copies of any important historic documents he may have thought he needed from his former solicitors.[70]The PLA and the HCEO contend that the order granting the extension of time should be set aside as a result of this misrepresentation. In my judgment that is the correct course to adopt. The only reason why it might not be is if the PLA and the HCEO were precluded from seeking the setting aside of the order by reason of their withdrawal of their application by letter dated 5 February 2015 on 9 June 2015. There was no dismissal of the application, however, nor did the PLA or HECO undertake not to renew it. In any event, I consider that the Court should set aside the order of its own motion if necessary.[71]Even if the extension of time is not set aside, Mr Couper’s application for permission to appeal on the merits still remains to be determined. The reason for this is that, although paragraph 3 of Birss J’s order dated 27 January 2015 required Mr Couper to lodge his appeal bundle within 35 days of service of the order, no appeal bundle was lodged until 25 October 2016, that is to say, over 18 months late. It is doubtful whether the interim bundle lodged on 25 October 2016 complied with paragraph 3 of Birss J’s order dated 27 January 2015, but for present purposes I shall assume that it did.[72]In these circumstances counsel for Mr Couper rightly accepted that Mr Couper required a retrospective extension of time for lodging his appeal bundle; that, since Birss J’s order dated 27 January 2015 contained an implicit sanction for failure to lodge an appeal bundle on time, Mr Couper required relief from that sanction under CPR r. 3.9; and that his application for relief from sanction should be considered applying the three-stage approach laid down by the Court of Appeal in Denton v T.H. White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296.[73]The first stage is to consider the seriousness and significance of Mr Couper’s failure to comply with paragraph 3 of Birss J’s order dated 27 January 2015. In my assessment, the failure was serious and significant. The appeal bundle was required in order to enable the Court to decide whether or not to grant Mr Couper permission to appeal. The effect of the breach has been that Mr Couper’s appeal has been in limbo for the best part of two years, which has delayed the full enforcement of Master Teverson’s order dated 3 December 2014.[74]The second stage is to consider why the default occurred. As to this, I consider that it is clear that Mr Couper is solely responsible for the default. He could have filed an appeal bundle by no later than 23 March 2015, by which time he had transcripts of Master Teverson’s judgments, but he did not do so until over 18months later.[75]The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. I have already expressed my view that Mr Couper’s breach of Birss J’s order dated 27 January 2015 was a serious and significant one and the default was solely his responsibility. It is clear that the PLA has been prejudiced as a result. It has lost the rental value of the mid-stream moorings where the barges are located, it has had to incur the £77,000 cost of salvaging the Capricorn and it has had to incur the costs of storing the contents of the barges that Mr Couper has not taken delivery of, amounting to over £14,300. These are substantial sums for the PLA, which is a self-financing statutory authority and which is already substantially out of pocket due to its unrecovered costs of the proceedings down to 29 November 2013. Accordingly, I decline to grant Mr Couper an extension of time or relief from sanction.[76]In the absence of an extension of time, it follows that the stay in paragraph 4 of Birss J’s order dated 27 January 2015 has ceased to have effect. Furthermore, the normal sanction for an appellant’s failure to file an appeal bundle for an extended period of time would be, at least if the appellant did not comply with an unless order, to strike the appeal out. In the present case, there was no unless order, but in my judgment the seriousness and significance of the breach warrants the sanction of striking out all the same.[77]In case I am wrong in that conclusion, I will consider Mr Couper’s application for permission to appeal on its merits. The transcript of Master Teverson’s judgment of 3 December 2014 shows that he gave full and careful consideration to the matter. Mr Couper’s grounds of appeal run to no less than 33 paragraphs and amount to a root and branch attack on almost every aspect of the Master’s decision. Counsel for Mr Couper informed me that Mr Couper no longer pursued the second part of paragraph 4, paragraph 16 or the human rights points taken in paragraphs 1 and 24 to 33. I have considered the remaining grounds of appeal, and in my view none of them has a real prospect of success since they do not begin to show that the Master improperly exercised his discretion. I will take by way of example paragraphs 5-8. These complain that the Master was unreasonable only to allow Mr Couper two days to remove his chattels from the barges under paragraph 1 of his order. What this complaint overlooks is that, by 3 December 2014, Mr Couper had already had over a year since the Main Order to remove his possessions from the barges. Moreover, he had over two months in which to do so after the HCEO took possession of the barges. Furthermore, the practical effect of Master Teverson’s order was such that Mr Couper was likely to have until 16 January 2015 to remove them. Still further, in the event, Mr Couper had much longer in which to do so.[78]For the reasons given above, I shall set aside paragraph 1 of Birss J’s order dated 27 January 2015, I shall strike out Mr Couper’s appeal for failure to comply with paragraph 3 of that order and I shall in any event refuse Mr Couper’s application for permission to appeal on the merits.[79]For the avoidance of doubt, my decision to refuse permission to appeal on the merits is not a decision which Mr Couper can seek to appeal to the Court of Appeal. It follows that Mr Couper has exhausted his ability to challenge Master Teverson’s order dated 3 December 2014.

Mr Couper’s application dated 26 March 2015

[80]As explained above, Henderson J dealt with part of Mr Couper’s application by granting a stay until the determination of the PLA and the HCEO’s application by letter dated 5 February 2015. In my judgment that occurred when the application was withdrawn on 9 June 2015, and accordingly the stay fell away at that point. In any event, I have now decided to set aside paragraph 1 of Birss J’s order dated 27 January 2015, strike out Mr Couper’s appeal and refuse permission to appeal on the merits. It follows that there is no basis for the stay to continue.[81]I would add that, as counsel for the PLA and the HCEO pointed out, Mr Couper did not have standing to obtain a stay of paragraph 8 of Master Teverson’s order anyway, since the Bay Berg and Artic Sun belong to the Trustees and not Mr Couper.[82]The only outstanding aspect of this application which was pursued at the hearing before me was Mr Couper’s application for a stay of the disposal by the HCEO of the artworks on the barges (including in some cases the converted barges themselves). Neither Mr Couper’s application notice dated 25 March 2015 nor his witness statement dated 23 March 2015 make out any coherent grounds for a stay. Furthermore, Mr Couper has in fact had the benefit of a de facto stay for over 20 months since then. In any event, there is no basis for any further stay now that Mr Couper has exhausted his ability to challenge Master Teverson’s order dated 3 December 2014. Accordingly, the application is dismissed. In my view, whatever may have been the position at the date it was issued, the pursuit of this application was totally without merit.

Mr Couper’s application dated 1 May 2015

[83]Mr Couper’s application dated 1 May 2015 traverses much of the same ground as his application dated 26 March 2015. The outstanding aspects of this application which were pursued at the hearing before me were as follows: i) provision of a list of all items held and where by the Claimants or the HCEO, including all 10 barges; ii) release of the tugboat Pablo as being a tool of Mr Couper’s trade; iii) release of all child’s items including a dinghy called Massi.[84]No legal basis for any of these orders was identified by counsel for Mr Couper. In the case of (i), I anticipate that the HCEO would find it very difficult to provide a comprehensive list given the large number of items left on the barges on 30 September 2014. In the case of (ii), I do not accept that Pablo is properly described as a tool of Mr Couper’s trade. In any event, as Mr Chatfield has pointed out to Mr Couper in correspondence on several occasions, and as counsel for the PLA and the HCEO re-iterated at the hearing, the position is regulated by regulation 4 of the Taking Control of Goods Regulations 2013 (SI 2013/1894), which provides for a limit on the aggregate value of exempt goods of £1,350. In the case of (iii), the HCEO has already returned items of Miss Couper’s. I see no basis for an order that the Massi be returned. Accordingly, the application is dismissed. In my view, whatever may have been the position at the date it was issued, the pursuit of this application was totally without merit.

Mr Couper’s application dated 5 June 2015

[85]Mr Couper’s application dated 5 June 2015 again traverses much of the same ground as his applications dated 26 March 2015 and 1 May 2015. The outstanding aspects of this application which were pursued at the hearing before me were as follows: i) release of Mr Couper’s tools and materials of trade; ii) release of family clothes/item and child’s things.[86]Again, no legal basis for any of these orders was identified by counsel for Mr Couper. In the case of (i), the HCEO has already returned some items falling within this description and, as noted above, the position is regulated by regulation 4 of the 2013 Regulations. Mr Couper has not identified any items which have not been returned and should be returned. In the case of (ii), the HCEO has already returned some items of this character. Mr Couper has not identified any items which have not been returned and should be returned. Accordingly, the application is dismissed. In my view, whatever may have been the position at the date it was issued, the pursuit of this application was totally without merit.

Mr Couper’s application dated 25 October 2016

[87]Mr Couper’s witness statement in support of this application is a shorter (42 paragraphs), but nevertheless still a rambling and highly tendentious document. The only aspect of this application that was pursued at the hearing before me was for release of the Lacy (now described as “LaCie”) data back-up machine). But that matter was dealt with in Hildyard J’s order. As explained above, the HCEO has searched for this device, but has not found it. Accordingly, the application is dismissed. In my view this application was totally without merit.

Mr Couper’s application dated 21 November 2016

[88]Mr Couper’s witness statement dated 20 November 2016 is a very lengthy (167 paragraphs), rambling and highly tendentious document. The only aspect of the application that was pursued at the hearing before me was for Mr Couper to have access to inspect the vessels and the stored artworks. The HCEO has previously provided Mr Couper with (supervised) access to the vessels, however, and has repeatedly offered such access again. No doubt the HCEO would be prepared to do the same in the case of the artworks. But in any event no legal basis for these orders was identified by counsel for Mr Couper. Accordingly, the application is dismissed. In my view this application was totally without merit

The PLA and the HCEO’s application apart from for an ECRO

[89]I have dealt with the first aspect of the PLA and the HCEO’s application in paragraphs 70 and 80 above. So far as the second aspect is concerned, I agree with the PLA and the HLEO that it is appropriate to give revised directions having regard to the passage of time since 3 December 2014. In principle, the revised directions proposed by the PLA and the HCEO appear suitable, but I will hear the parties as to the precise wording and timings when this judgment is handed down.

The PLA and the HCEO’s application for an ECRO

[90]CPR r. 3.11 provides:
“A practice direction may set out – (a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings; (b) the procedure where a party applies for a civil restraint order against another party; and (c) the consequences of the court making a civil restraining order.”
[91]Paragraph 3.1 of Practice Direction 3C – Civil Restraint Orders provides:
“An extended civil restraint order may be made by ... (2) a judge of the High Court ... where a party has persistently issued claims or made applications which are totally without merit.” where a party has persistently issued claims or made applications which are totally without merit.”
[92]Comparison with paragraph 2.1, which deals with limited civil restraint orders, indicates that a threshold of three totally without merit applications should be applied under paragraph 3.1: see Connah v Plymouth Hospitals NHS Trust [2006] EWCA Civ 1616. The court has the jurisdiction to make civil restraint orders against non-parties: see Civil Procedure 2016 note 3.11.2.[93]Even prior to the hearing before me, Mr Couper had made the following applications that had been dismissed as being totally without merit: i) the application dated 23 October 2014 for permission that Miss Couper be added as a party (paragraph 23 above) which was dismissed by Floyd LJ on 2 July 2015 (paragraph 56 above); ii) the application dated 28 October 2014 for a stay of execution (paragraph 24 above) which was dismissed by Master Teverson on 3 December 2014 (paragraph 30 above); and iii) the application dated 6 November 2014 for a stay of execution (paragraph 29 above) which was dismissed by Master Teverson on 3 December 2014 (paragraph 30 above).[94]Furthermore, Mrs Couper had made the following applications that had been dismissed as being totally without merit: i) the application dated 21 October 2014 to renew her application for permission to appeal orally out of time (paragraph 22 above) which was dismissed by Floyd LJ on 2 July 2015 (paragraph 56 above); ii) the application dated 30 October 2014 for a stay of execution (paragraph 25 above) which was dismissed by Lewison LJ on 4 November 2014 (paragraph 27 above); and iii) the application dated 6 November 2014 for a stay of execution (paragraph 29 above) which was dismissed by Master Teverson on 3 December 2014 (paragraph 30 above).[95]Accordingly, even taken separately, Mr and Mrs Couper had each had three applications dismissed on the basis of being totally without merit. Given the similarity of their applications, I consider that it is proper to consider them as acting jointly. On that basis, they had between them had six applications dismissed as being totally without merit.[96]In addition, for the reasons given in this judgment, I shall dismiss Mr Couper’s applications dated 26 March 2015, 1 May 2015, 5 June 2015, 24 October 2016 and 21 November 2016 as being totally without merit.[97]It follows that the threshold for the grant of an extended civil restraint order has clearly been crossed. Furthermore, Mr and Mrs Couper, and Mr Couper in particular, have exhibited precisely the quality of persistence in making repeated applications which are without foundation, that an extended civil restraint order is designed to prevent.[98]There are four further aspects of Mr and Mrs Couper’s behaviour, and in particular Mr Couper’s, that are of concern. The first is that they have made a number of applications at the last minute before deadlines with the apparent purpose, and certainly the effect, of preventing timely enforcement of the Court’s orders. Secondly, Mr Couper has repeatedly made without notice applications without justification. Thirdly, Mr and Mrs Couper have made applications in a number of different courts, including even the Admiralty Master. Fourthly, Mr Couper has obtained an extension of time by misrepresentation.[99]The results of this behaviour can be seen from this judgment. In short, the enforcement of the Main Order and of Master Teverson’s order dated 3 December 2014 has been severely delayed, and the PLA has been put to substantial cost, without justification.[100]It is very clear to me that, unless they are restrained by an extended civil restraint order, Mr and Mrs Couper will continue to abuse the processes of the Court by making unfounded applications. Nothing less than an extended civil restraint order will do to remedy this situation.

Cited in 1 later judgment