Sandra Edith Dennerlein v Barclays Bank Uk PLC & Anor [2025] EWHC 554 (KB)

[2025] EWHC 554 (KB)Case No KB-2023-002636
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/03/2025
Before
MR JUSTICE SOOLE
Between
SANDRA EDITH DENNERLEINClaimantBARCLAYS BANK UK PLCDefendantMr Robert Machell (instructed by TLT LLP) for DefendantMr James David Hart in person for in personNo attendance by nor representation for ClaimantHearing Hearing date: 18 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 13 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html)..............................
[1]Pursuant to my Order dated 19 December 2024, I heard on 18 February 2025(i) the application dated 27 February 2024 of Mr James David Hart (‘Mr Hart’) to strike out the Claimant (‘Ms Dennerlein’)’s contempt application against him dated 20 February 2024 and(ii) the application dated 1 May 2024 by Barclays Bank UK Plc (‘the Bank’) to strike out Ms Dennerlein’s contempt application against it dated 24 March 2023.[2]The Bank appeared by Counsel, Mr Robert Machell. Mr Hart, a barrister, appeared in person. Ms Dennerlein did not appear and was not represented at the hearing.[3]By application dated 7 February (sealed 14 February) 2025, Ms Dennerlein applied to adjourn the hearing listed for 18 February 2025. Within the N244 application form, she asked for her adjournment application to be determined without notice to the other parties and without a hearing.[4]In the supporting evidence in box 10 of the form, Ms Dennerlein stated in particular that she(i) had not received notice that her contempt application against the Bank had been transferred to the High Court of Justice King’s Bench Division in accordance with the Order of HHJ Howells dated 20 April 2023;(ii) had only on 7 February 2025 been provided with the applications of the Bank and of Mr Hart and had not been served with these;(iii) asked to be given until 12 March 2025 to respond to the applications and for these to be relisted after 15 May 2025.[5]On reading the application, I concluded that there was no basis for it to be determined on a without notice basis. Accordingly my Order dated 14 February 2025 provided that the application would be heard at the outset of the hearing on 18 February 2025.[6]As already noted, Ms Dennerlein did not attend that hearing. Having considered the application, I concluded that Ms Dennerlein had been duly served and notified of the applications and had received more than sufficient time to respond thereto.[7]The relevant chronology shows in particular that:(i) following a hearing before HHJ Howells on 20 April 2023 in the County Court at Liverpool, attended by Ms Dennerlein, the Judge’s Order of that date transferred Ms Dennerlein’s contempt application against the Bank to the Central Registry of the High Court of Justice King’s Bench Division;(ii) following transfer, the Central Registry gave the application the claim number which heads this judgment, i.e. KB-2023-002636;(iii) my Order dated 8 November 2024, headed with that claim number, (a) by its first recital, referred to the Order of HHJ Howells, the subsequent transfer of the proceedings and the KB claim number; and (b) ordered that the applications of Mr Hart and of the Bank were to be listed before me for a directions hearing (and to consider Mr Hart’s application to transfer the committal application against him from the County Court at Central London to the High Court) on the first open date in December 2024. That hearing was listed for 19 December 2024;(iv) on 12 December 2024, Ms Dennerlein applied in Form N244, headed with the claim number KB-2023-002636, to adjourn the hearing listed for 19 December on the basis that she was out of the country, unable to attend the hearing and had no information about the claim. Ms Dennerlein asked for the claim documentation to be provided and for 30 days to consider it before a relisting; (iv) at the hearing on 19 December 2024, which Ms Dennerlein did not attend, I considered and refused the application to adjourn. Having heard Counsel for the Bank and Mr Hart, I made orders transferring the contempt application against Mr Hart to the High Court of Justice and gave directions towards the hearing of the two strike-out applications in February 2025. These included directions for the Bank’s solicitors to prepare a joint hearing bundle containing specified documents. As to service on Ms Dennerlein, the order required service of all documents on her by first class post to 27 Old Gloucester Street, London WC1N 3AX. Although on the evidence this was an accommodation address only, it was the only current address which had been provided by Ms Dennerlein; and the evidence from the Bank’s solicitors and Mr Hart showed that documents sent to that address had been collected from the post office at Mount Pleasant.[8]From all the evidence I was satisfied that Ms Dennerlein had at all stages been properly served with the relevant Orders, applications and supporting material. This included the hearing bundle for 18 February, together with the skeleton arguments on behalf of the two applicants. There was no good reason to allow this further application for an adjournment. The application was totally without merit. The underlying action[9]By Claim Form issued on 3 October 2022 in the County Court Business Centre Ms Dennerlein commenced the underlying action (claim no. J9QZ7G1G) against the Bank, claiming £5000 said to be due in respect of interest payments. By subsequent amendments the claimed sum has increased substantially. The claim was transferred between various County Court hearing centres and now proceeds in the County Court at Central London. It is unnecessary to rehearse the detailed procedural history, save to the extent set out below. The contempt application against the Bank[10]By application in Form N600 dated 24 March 2023 and issued in the Liverpool Civil and Family Court, Ms Dennerlein sought to commence contempt proceedings against the Bank as the named Defendant. In section 3 of the application form, she answered the question ‘Who should be served with this application?’ with ‘Nadina Miltiadou’. Ms Miltiadou was at that time a paralegal at the Bank’s solicitors TLT LLP (‘TLT’) and had made a number of witness statements in this action. In section 4, Ms Dennerlein gave TLT’s address in Bristol as the address for service.[11]On the same page the form contains the following standard words: ‘The written evidence of the claimant in support of this application, in the form of an affidavit or affirmation, is attached to this application. If permission is required to make this application, the application for permission (headed ‘Application for permission’) must be included in this application’.[12]In section 5, which requires information as to the ‘Nature of the contempt (for example, breach of an order or undertaking or contempt in the face of the court)’, Ms Dennerlein states ‘Repeated dishonest and misleading statements made in witness statements verified by a statement of truth’.[13]In section 10, which requires information as to the date and terms of any undertaking allegedly breached, Ms Dennerlein states:
‘Dishonest and misleading statements made in various witness statements verified by a statement of truth without an honest belief in the truth of those statements - Witness statement dated 23 January 2023 -Witness statement dated 6 February 2023 -Witness statement dated 9 March 2023 -Witness statement dated 12 March 2023 See attached witness statement dated 24 March 2023’
. That statement was evidently wrongly placed in that section, as it is not Ms Dennerlein’s case that there has been a breach of any undertaking.[14]In section 12, which requires a ‘Summary of facts alleged to constitute the content (set these out very briefly, in chronological order, in numbered points)’, Ms Dennerlein states: ‘I would refer to my attached witness statement, which outlines the various false statements in the various witness statement that have been submitted by this individual in the claim’.[15]The attached witness statement is dated 24 March 2023. This contains allegations that Ms Miltiadou made ‘various dishonest and misleading statements’ in witness statements dated 13 January 2023, 6 February 2023, 9 March 2023 and 13 March 2023.[16]The application came before HHJ Howells at a remote hearing in the County Court at Liverpool on 20 April 2023. This was attended by Counsel for the Bank, Mr Hart, and by Ms Dennerlein in person. By her Order of that date the Judge ordered that all further proceedings in the contempt application against the Bank be transferred ‘from the County Court at Liverpool to the Registry of the King’s Bench Division of the High Court of Justice – Central Office to determine whether a permission hearing should be listed before a High Court Judge and/or to make such further or alternative directions as appropriate.’[17]The final recital to that order noted that the contempt application was ‘…made in relation to an allegation that a statement maker knowingly made false statements in witness statements verified by statements of truth; and:(i) no application for permission was included in the contempt application;(ii) the contempt application is not supported by evidence given by affidavit or affirmation; and,(iii) the statement maker is not a party to the contempt application and has not been served [with] the contempt application.’[18]As the transcript shows, these points had been raised in the course of the hearing, together with the further points that, as expressed by the Judge, ‘First of all, your application itself is meant to set out in the body of it each and every allegation that you make that you say is a contempt, not just refer to a witness statement.’ (p.5, line 19); and also the requirement of personal service (p.5, line 30).[19]HHJ Howells’ observations reflect the following provisions of CPR 81 which governs applications and proceedings in relation to contempt of court.[20]As to permission to make an application, CPR 81.3 provides, as material, ‘…(5) Permission to make a contempt application is required where the application is made in relation to –(a) interference with the due administration of justice, except in relation to existing High Court or county court proceedings;(b) an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement. (6) If permission to make the application is needed, the application for permission shall be included in the contempt application, which will proceed to a full hearing only if permission is granted… …(8) If permission is needed and the application does not relate to existing court proceedings or relates to criminal or county court proceedings or to proceedings in the Civil Division of the Court of Appeal, the question of permission shall be determined by a single judge of the King’s Bench Division. If permission is granted, the contempt application shall be determined by a single judge of the King’s Bench Division or a Divisional Court.’[21]As to evidence in support of an application, CPR 81.4(1) provides:
‘Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.’
As noted, Ms Dennerlein has provided a witness statement, but no affidavit or affirmation.[22]As to personal service, CPR 81.5(1) provides:
‘Unless the court directs otherwise in accordance with Part 6 and except as provided in paragraph (2), a contempt application must be served on the defendant personally.’
Paragraph (2) provides exceptions where a legal representative is on the record for the defendant in the proceedings to which the contempt application relates. The Bank takes no point on the absence of personal service of the contempt application.[23]As to the law in respect of contempt applications, the authorities impose what has been described as a high standard of procedural fairness. Thus in Navigator Equities Limited v. Deripaska [2021] EWCA Civ 1799; [2022] 1 WLR 3656 per Carr LJ (as she then was): ‘The charges raised have to be clear; the criminal standard of proof applies; and the respondent has a right to silence. There must be a high standard of procedural fairness.’; see also Navigator Equities Limited v. Deripaska [2024] EWCA Civ 268 per Sir Julian Flaux C at [47]-[48].[24]As to the necessary clarity of the charges, ‘The general principle remains that the application should, within its four corners, contain information giving sufficient particularity of the alleged contempt to enable the alleged contemnor to meet the charges…the fundamental question is whether a reasonable person in the position of the alleged contemnor, having regard to the background against which the committal application was launched, would be in any doubt as to the substance of the breaches alleged.’: Ocado Group PLC v. McKeeve [2021] EWCA Civ 145.[25]As to the power of strike out, the Court has retained an inherent power to strike out a committal application on the grounds of abuse of process and/or that the application and evidence served in support disclose no reasonable grounds for alleging that the respondent is guilty of a contempt of court and/or that there has been a failure to comply with a rule, practice direction or court[26]The Bank applies to strike out Ms Dennerlein’s application on each of these bases. It relies, first, on the continuing absence of the necessary application to seek and obtain permission from the court in order to proceed with this application whose allegations fall within CPR 81.3(5)(b). The Claimant has failed to do so; and notwithstanding the express notification of the point by HHJ Howells at the hearing on 20 April 2023 and in her Order.[27]Secondly, that there is no supporting affidavit or affirmation; and again notwithstanding the observations of HHJ Howells on this point. There is no reason for the Court to exercise its power under CPR 81.4(1) to dispense with the requirement.[28]Thirdly, that although the application is directed against the Bank, the alleged contemnor is not the Bank but Ms Miltiadou, the former paralegal of its solicitors TLT: see also Ms Dennerlein’s supporting witness statement dated 24 March 2023. I interpose that Ms Dennerlein has subsequently (20 February 2024) issued, but not served, a contempt application against Ms Miltiadou, with allegations in identical terms.[29]Fourthly, and in any event, that the application fails to satisfy the legal obligation to particularise with clarity within the application notice the allegations which the Bank (or indeed Ms Miltiadou) has to meet. The allegations in the N600 form are broad unparticularised allegations of dishonest and misleading statements, with a cross-reference to Ms Dennerlein’s witness statement. Conclusion on the Bank’s application[30]I agree with each of these submissions and conclude that they compel the striking out of this application. As the case law makes clear, each of the grounds of challenge raised by the Bank are important matters of substance. They are not to be brushed aside as technicalities. Almost 2 years since HHJ Howells pointed out the first three defects in the application, Ms Dennerlein has taken no steps to make the necessary application for permission to proceed with the contempt application; to file the necessary affidavit or affirmation; nor to explain the basis on which it is alleged that the Bank is guilty of contempt of court. Further, and whether or not the focus is on the Bank or Ms Miltiadou, there is a quite unacceptable failure to identify with clarity and particularity the statements which are alleged to be dishonest and misleading. It is quite impossible, within the four corners of the application notice or otherwise, to identify the allegations which are made.[31]In the face of the Bank’s application, Ms Dennerlein has chosen to submit no substantive response nor to attend the hearings on 19 December 2024 or 18 February 2025. I conclude that the committal application against the Bank is being used as an illegitimate weapon within the litigation; and that it should be struck out as an abuse of process; as disclosing no reasonable grounds for a finding of contempt; and because of the various and persistent breaches of the important procedural requirements of such applications. It is totally without merit. The contempt application against Mr Hart[32]In this case, section 5 of the Form of the contempt application dated 20 February 2024 identifies the nature of the contempt as ‘Making false statements in recorded court hearings either recklessly or without an honest belief in their truth.’[33]As with the application against the Bank, section 10 has been completed, albeit there is no alleged breach of an undertaking. It reads:
‘17 April 2023 – making false statements in a court hearing 11 May 2023 – making false statements in a court hearing The Defendant admitted to the court to having made false statements.’
[34]The section 12 summary of facts alleged to constitute the contempt reads:
‘James Hart stated in recorded hearings on 17 April 2023 and 11 May 2023 that his lay clients had provided data requested under a subject access request prior to these hearings and that they were willing to provide this data again. James Hart explicitly stated that this data contained bank statements. James Hart was made aware that his statements were dishonest after the hearing on 17 April 2023 and wrote a letter to the court detailing that he had been made aware that his statements were false and that there was evidence that they were false, but he repeated them in the hearing on 11 May 2023 without caring whether his statements were truthful, his statements were either reckless or deliberately dishonest. A more detailed summary of the facts is contained in the attached witness statement.’
[35]There is no attached witness statement, nor is there any supportive evidence in the form of an affidavit or affirmation as required by CPR 81.4.[36]Further, the application has not been personally served on Mr Hart as required by CPR 81.5, unless the Court orders otherwise; and the exceptions in 81.5(2) being inapplicable to Mr Hart as a litigant in person.[37]Mr Hart’s application to strike out is brought on both procedural and substantive bases. It is supported by his witness statement dated 27 February 2024. By a further application dated 22 January 2025 and duly served on Ms Dennerlein, he sought permission to adduce a further witness statement of the same date in support of various further matters relating to the question of the public interest. I was satisfied that it was appropriate to grant that application.[38]As to procedural bases, he relies on:(1) the absence of personal service. An unsealed copy of the application notice was emailed to him by Ms Dennerlein on 21 February 2024;(2) the absence of a supporting affidavit or affirmation, or indeed of the witness statement which allegedly, but is not, attached;(3) the absence from the form of a clear and self-contained particularisation of the allegations made against him. He submits that it is only by reference to pre-application correspondence from Ms Dennerlein that he has been able to understand the gravamen of her allegations; and even then it is far from clear which of those allegations is pursued in the application against him.[39]Mr Hart further contends that the allegations are made in an equivocal form, namely contending that his statements in court were made ‘either recklessly or without an honest belief in their truth’ (section 5) and ‘without caring whether his statements were truthful, his statements were either reckless or deliberately dishonest’ (section 12). Whilst denying that his conduct falls into either category, Mr Hart points to authority whose effect is that ‘reckless falsity’, even if proven, is insufficient. Thus in Norman v Adler [2023] EWCA Civ 785; [2023] 1 WLR 4232, the Court of Appeal reaffirmed that it is necessary to establish that the alleged contemnor made a statement to the court which was untrue and that he knew it to be untrue at the time that he made it: see at [40]-[63]. Thus ‘It is not sufficient to say that the contemnor did not care whether what he said was true or not. It must first be proved to the requisite standard that he knew that he did not know whether what he said was true or not.’[61].[40]However, and given his professional position as a barrister, Mr Hart does not wish only to rely on these procedural objections to the contempt application. He also submits that it should be struck out as having no substance in fact. For that purpose he contends that the Court has jurisdiction to proceed by either of two routes.[41]First, by imposing a permission requirement akin to that provided by CPR 81.3(5); and then refusing permission on the basis that there is no strong (nor any) prima facie case against him, nor any public interest in the application being permitted to proceed.[42]Secondly, and alternatively, through the inherent jurisdiction to strike out on the basis that the application discloses no reasonable grounds for a finding of contempt of court.[43]As to the first route, he submits that there is no substantive difference as to the gravity of the type of allegation for which permission is required pursuant to CPR 81.3(5)(b) and the present case where the allegation is of Counsel making false and knowingly dishonest statements to the Court. The absence of an express permission requirement in such a case is a lacuna in the law. However the Court has a remedy under its inherent jurisdiction to impose a permission requirement in an appropriate case. In support of that proposition he cites observations at first instance in MBR Acres Ltd v. McGivern [2022] EWHC 2072 (QB) per Nicklin J at [102] and in Verlox International Ltd v. Antoshin [2023] EWHC 86 (Comm) per Foxton J at [31].[44]He submits that the absence of the express requirement for permission in the present case(i) fails to recognise the important distinction between civil and criminal contempt. An allegation of civil contempt, e.g. breach of an order, does not engage the question of whether the applicant is an appropriate guardian of the public interest;(ii) would have the effect of allowing a criminal contempt application which does not meet the public interest test to go to a full hearing; or at least unfairly shifts the burden of such test onto the respondent, namely by application to strike out. Further,(iii) there may be issues which would be the proper province of the permission jurisdiction which would not be amenable to determination on a strike-out application. For example, where a defendant alleges that the evidence allows more than one reasonable inference to be drawn and at least one of those is inconsistent with a finding of contempt, this may be raised by way of challenge to a permission application (Frain v. Reeves [2023] EWHC 73 (Ch) at [27]-[32], but arguably not by a strike-out application (Super Max v Rakesh Malhotra [2019] EWHC 2711 (Comm) at [15].[45]In the present case there were good prima facie grounds to impose a permission request, namely the nature of the allegation, namely false statements made to the Court; the absence of any substance to the allegations; the absence of personal service of the application; the absence of a supporting affidavit or affirmation, or even the witness statement to which the application referred; and the failure to take any steps to rectify procedural defects in the application.[46]In the alternative, the application should be struck out not only on the basis of procedural defects and as an abuse of process but on the basis that the application discloses no reasonable grounds to make a finding of contempt.[47]As between the two routes, the burden of proof is different. If a permission requirement were imposed, the applicant would have the burden of establishing that permission should be granted. On a strike out application, the burden is on the respondent.[48]Turning to the evidence, Mr Hart proceeds on the basis of his inference of Ms Dennerlein’s apparent case that:(i) before and at the Court hearing on 17 April 2023 he dishonestly or recklessly submitted that the Bank had responded to data subject access requests (DSARs) made by her for (a) her mortgage data and (b) (by separate DSARs) all her personal data; and that(ii) before and at a Court hearing on 11 May 2023, he dishonestly and recklessly repeated those submissions.[49]His witness statement dated 27 February 2024 sets out the following essential account.[50]On 14 April 2023, he was instructed by TLT to represent the Bank at a directions hearing listed for 20 April 2023. This was in respect of Ms Dennerlein’s contempt application against the Bank dated 24 March 2023. This led to the hearing and consequential Order of HHJ Howells referred to above.[51]In the meantime, Ms Dennerlein had made an application dated 28 March 2023, which was listed for 17 April 2023, for a retrospective ‘unless’ order in respect of the alleged breach of a previous Court order and consequent judgment against the Bank (the ‘First Unless Order Application’). On 4 April 2023, Ms Dennerlein issued a further application, which was also listed for 17 April, seeking an Unless Order and compensation, by which the Bank would be required to comply with DSARs which she had made (the ‘Second Unless Order Application’). Mr Hart was instructed to represent the Bank at the hearing on 17 April 2023.[52]By her (6th) witness statement dated 12 April 2023 made in response to the First Unless Order Application, Ms Miltiadou exhibited certain bank statements from the relevant bank accounts for the period covering the closure of the accounts.[53]By her (7th) witness statement dated 14 April 2023 made in response to the Second Unless Order Application, Ms Miltiadou noted that the application referred to a number of DSARs made by Ms Dennerlein between June 2022 and January 2023 but provided no further details. However the application attached an email dated 24 March 2023 from the Bank to her which referred to a DSAR numbered i324486 (‘the Index DSAR’). Further her Amended Particulars of Claim dated 23 December 2022 referred to other DSARs, namely i255292 dated 7 June 2022 (‘the June 2022 DSAR’) and i281163 dated 21 October 2022 (‘the October 2022 DSAR’).[54]At paragraph 20 of this witness statement, Ms Miltiadou stated that, with regard to the October 2022 DSAR and the Index DSAR, she was instructed that the Bank had sent the data to Ms Dennerlein; and then by an exhibited email dated 14 April 2023 had re-sent her instructions for accessing the data. Further at paragraph 21 she stated her instructions that the Bank’s response dated 24 March 2023 in respect of the Index DSAR had been sent in error. As Ms Dennerlein was no longer a customer of the Bank, the response pack and instructions on access to it should have been provided via email and not via the Online Banking Application. However this had been rectified by the email sent on 14 April 2023.[55]Mr Hart points out that, whilst the Bank’s email dated 14 April 2023 was exhibited to Ms Miltiadou’s affidavit, the contents of its two attached pdf files containing Ms Dennerlein’s personal data were not.[56]For the hearing on 17 April 2023, Mr Hart prepared a skeleton argument and then, at the request of the District Judge, a document setting out the issues for the hearing.[57]At paragraph 14 of the skeleton argument, he stated in respect of the Second Unless Order Application, that:
‘…as Ms Miltiadou explains in her 7th witness statement, the data requested by the Index DSAR and the October 2022 DSAR were provided to the Claimant, on 14 April 2023, with details of how to access the data. The 2nd Application is, thus, on any view, redundant.’
[58]Mr Hart’s ‘Issues’ document likewise stated at paragraph 8(a) that ‘the Defendant has complied with the DSAR’s made by the Claimant (including on 14 April 2023) thus the 2nd Application is redundant.’ Both documents also included objections to the Second Unless Order Application on jurisdictional grounds.[59]At the hearing before District Judge Jenkinson on 17 April 2023, Ms Dennerlein asserted that she had not received the hearing bundle, which included Ms Miltiadou’s 6th witness statement dated 12 April 2023 and its exhibited bank statements: see the transcript at p.5 line 31. Mr Hart explained that they had been served by post (Special Delivery) on 12 April and were therefore deemed under CPR Part 6 to have been served on Friday 14 April. Further the 6th witness statement had also been emailed by TLT to Ms Dennerlein on 13 April at 10.20 a.m.[60]In answer to opening remarks from the Judge in respect of the Second Unless Order Application and with reference to observations made by Ms about Ms Dennerlein about disclosure of bank statements, Mr Hart’s response included: ‘But if what the claimant is saying is that, “Actually no, you are right, what I was looking for was the bank statements”, then my submission is, “Well, you have them, and you have had them since Friday.” Mr Hart says that was a reference to the bank statements exhibited to Ms Miltiadou’s 6th witness statement dated 12 August 2024 and deemed served on Friday, 14 August 2024.[61]The District Judge dismissed the First Unless Order Application. He adjourned the hearing of the Second Unless Order Application without hearing substantive submissions, because of lack of judicial time, and ordered it to be listed before a Circuit Judge.[62]Later that day Ms Dennerlein contacted Mr Hart’s Chambers by telephone to make a complaint against him. She alleged that he had been disrespectful to her at the hearing and had made false and dishonest statements to the Court. No particulars of the alleged falsity and dishonesty were given.[63]By letter dated 18 April 2023 to the Designated Civil Judge HHJ Wood KC (copied to the District Judge and to Ms Dennerlein) Mr Hart informed the Court of this complaint and stated:
‘I have considered my professional obligations carefully and do not consider the foregoing, and in particular the allegation of dishonesty, to give rise, in respect of the contempt application, to any conflict of interest on my part or to compromise my duty of independence. However, I, nonetheless, feel duty bound to draw to the Court’s attention the complaints made in the interests of transparency and out of an abundance of caution.’
[64]The Second Unless Order Application came before HHJ Wood KC on 11 May 2023. At Court Mr Hart received from Court staff a further (5th) witness statement dated 10 May 2023 by Ms Dennerlein. This responded to Ms Miltiadou’s 7th witness statement dated 14 April 2023 and in particular to its reference to the exhibited email from the Bank dated 14 April 2023. At paragraph 4 she stated that Ms Miltiadou ‘…dishonestly states that Barclays have provided the data via email on 14 April 2023, which is after I had been forced to filed the application.’ She exhibited ‘…the screenshot of my email account (notably searching “all inboxes”, which would include spam/junk/trash) dated 10 May 2023 which shows that Barclays have not sent the data.’[65]Mr Hart took instructions in response and these were to offer a practical solution to Ms Dennerlein without prejudice to the jurisdictional and procedural objections to the Second Unless Order Application. These were to request that she write to those having conduct of the matter at TLT confirming an address she could accept recorded mail so that her data could be sent to her on a USB stick; and for arrangements to be made in respect of telephone recordings to which she had also referred. Ms Dennerlein did not agree to the proposal.[66]In the meantime Mr Hart was instructed that, during the course of the hearing, the Bank had twice re-sent the email of 14 April 2024 to Ms Dennerlein; but she said that she had not received the first attempted resend; and he understood the position to be the same with the second.[67]In the course of the hearing, Mr Hart took the Judge to the 14 April 2023 Bank email and stated that this was the email she was saying she had not received. The judge asked about the subject access numbers in the email, i.e. i281163 and i324486. Mr Hart replied:
‘One is October, that is the one in relation to the mortgage account. The other is an access request made on 22 March, which was an all pertinent data access request, so the same scope as the January request.’
Mr Hart states that ‘all pertinent data access request[s]’ was his understanding based on his instructions.[68]The Judge dismissed the Second Unless Order Application on the jurisdictional grounds advanced by Mr Hart. He adjourned a separate application by the Bank for an order pursuant to CPR 18.1. That hearing was relisted for 26 June 2023, for which Mr Hart was again instructed.[69]Mr Hart understands it to be uncontroversial that on or about 19 May 2023, Ms Dennerlein received the data that had been attached to the Bank’s email of 14 April 2023, by way of access to an FTP site.[70]Mr Hart’s papers for the adjourned hearing on 26June included the data provided to Ms Dennerlein on 19 May. On review of that data, Mr Hart became aware that it was responding solely to Ms Dennerlein’s DSARs for her personal data relating to her former mortgage account.[71]In consequence he wrote to HHJ Wood KC by letter dated 22 June 2023, copied to the District Judge and Ms Dennerlein. He asked TLT to serve the letter on Ms Dennerlein. TLT subsequently informed him that it was served by post on 29 June 2023. Having explained the background and his discovery, Mr Hart stated:
‘I consider, as a matter of professional obligation and with specific regard to the fact that the Claimant is in the unequal position of being an unrepresented litigant, I should bring directly to the Court’s attention that my submissions that the Defendant had provided, and would again be providing, personal data in relation to not just the Claimant’s former mortgage account were nonetheless inaccurate. I unreservedly apologise for this inaccuracy. It was wholly unintentional and occurred, without waiving my lay client’s privilege, entirely because those submissions reflected the instructions I had sought and received on this issue before making them.’
[72]Ms Dennerlein subsequently made a complaint to the Bar Standards Board (BSB) about Mr Hart and relating to the hearings on 17 April and 11 May 2023. By its response dated 4 August 2023 stating that it was taking no further action on the complaint, the BSB stated:
‘In this case the barrister has received instructions from solicitors and no evidence has been provided to show that he must have known that those instructions were false.’
[73]By email to Mr Hart dated 3 November 2023 and headed ‘Letter before claim/contempt of court’, Ms Dennerlein stated that she intended to initiate contempt proceedings against him, including that ‘I find it hard to believe that you are not aware that Barclays and TLT now had to admit that they had not provided the data when you claimed in recorded court hearings that they had.’ Ms Dennerlein stated that she had a pending appointment on 29 November 2023 to obtain an affidavit for the contempt application against ‘the solicitor at TLT’ and would need a further affidavit for the purpose of the application against Mr Hart. She asked for ‘an explanation’ by 9 November and concluded that, in the absence of a response or if the response was unacceptable, she would initiate contempt of court proceedings. Mr Hart responded on 6 November 2023 and correspondence continued.[74]By email to Mr Hart dated 14 November 2023 Ms Dennerlein stated that she had filed the contempt application with the County Court at Central London; and attached a letter of the same date to that Court. By his response dated 16 November 2023 Mr Hart noted that no application had been served on him.[75]The present application dated 20 February 2024 was emailed by Ms Dennerlein to Mr Hart on 21 February 2024. On the same date, Ms Dennerlein emailed to TLT an unsealed copy of a contempt application against Ms Miltiadou. That application is identical to the contempt application against the Bank, save as to the name of the defendant, the absence of dating of the statement of truth and as to Ms Dennerlein’s address for service. Conclusions on Mr Hart’s application[76]In my judgment this contempt application must be struck out on the grounds of(i) the procedural defects(ii) abuse of process and(iii) failure to disclose any reasonable grounds for a finding of contempt of court. In the circumstances of this application, these grounds are interrelated, but each is sufficient to compel that result.[77]As to procedural defects, it is necessary to emphasise that these are not matters of technicality or ‘pleading points’ but matters of real and substantive procedural fairness. As authority makes clear, the gravity of an allegation of contempt of court and the penalties which can follow impose strict obligations on the applicant to comply with the relevant procedural requirements. These include the central importance of setting out the charges with particularity and clarity and within the four corners of the application form; to support the allegations with evidence in the form of an affidavit or affirmation, unless the Court orders otherwise or one of the identified exceptions applies; and to serve the application personally on the alleged contemnor, unless the Court dispenses with that requirement.[78]This application fails to meet each of those requirements. First, the N600 form does not set out the allegations against Mr Hart with the necessary particularity and clarity, but makes broad and imprecise allegations of false statements made in the court hearings of 17 April and 11 May 2023. The purported summary in section 12 (and likewise the content of section 10) is wholly inadequate.[79]Although Mr Hart has attempted to identify the case which is being made against him by reference to e.g. the correspondence between Ms Dennerlein and him and the Court transcripts, it is wholly unfair and unacceptable for an applicant to put the respondent to the task of trying to identify the case which is made against him. The obligation is squarely on the applicant and has not been satisfied by Ms Dennerlein. Indeed I remain far from clear as to the precise allegations which are being made.[80]Secondly, there is no supporting affidavit or affirmation. This is contrary to the rule and notwithstanding Ms Dennerlein’s evident knowledge that this is a requirement. Nor, contrary to the terms of the application, is there even a supporting witness statement. There is no application for the Court to order that the requirement of an affidavit or affirmation be dispensed with, nor would there be any good reason for the Court to make such an order.[81]Thirdly, the application has not been served personally on Mr Hart. There is no application for the Court to dispense with that requirement, nor any reason why it should do so.[82]I conclude that the application constitutes an abuse of process for three interrelated reasons. First, because of the same substantial procedural defects. Secondly, because of the absence of any attempt to rectify these failures, notwithstanding the objections clearly raised by Mr Hart’s application and supporting witness statement dated 27 February 2024. Thirdly, because of the failure to take any steps to proceed with this contempt application or to respond in substance to Mr Hart’s application to strike it out. In all the circumstances, I conclude that Ms Dennerlein has no real intention to pursue the application, whether expeditiously or at all; and that the real purpose is to keep the application in place as a weapon within the overall litigation. This all amounts to an abuse of process.[83]I also consider that the application on its face discloses no reasonable grounds for a finding of contempt of court. This is for three reasons. First, because of the lack of the necessary particularity and clarity in the terms of the allegations. Secondly, because of the absence of any supporting evidence, whether by affidavit or affirmation or even witness statement. Thirdly, because of the equivocal nature of the allegation as to the necessary mental element, namely the inclusion of the alternative contention that Mr Hart made false statements ‘recklessly’ and/or without caring whether or not they were true. Thus on the face of the application it does not meet the threshold requirement of an allegation of deliberate dishonesty. This is a matter which can and should be taken into account in a strike-out application.[84]Each of these grounds individually compels the striking out of the application. The cumulative effect is overwhelming. The contempt application is totally without merit.[85]In all the circumstances, I have not taken the course of imposing a permission requirement in respect of the application. In the light of the observations at first instance in the cited authorities, I proceed on the basis that the Court does have inherent jurisdiction to do so. I also recognise the potential anomaly which arises from a contrast between the express requirement for permission in the circumstances identified in CPR 81.3(5) and the absence of such requirement in a case such as this. However in circumstances where there is an overwhelming basis to strike out the application on the grounds identified above, I do not think it necessary or appropriate in the present case to take the course of imposing a permission requirement. If I had done so, I would have concluded in the light of the evidence and submissions and in the absence of any substantive response from Ms Dennerlein that there is no arguable case against Mr Hart and that, in consequence there is no public interest in permitting the application to proceed. Conclusion[86]The contempt application against the Bank dated 23 March 2023 will be struck out. The contempt application against Mr Hart dated 20 February 2024 will be struck out. In each case the application will be certified as totally without merit. At this stage the question of whether it is appropriate to make any form of Civil Restraint Order should be determined by the Designated Civil Judge at the County Court in Central London or his appointed deputy.

order

see e.g. Navigator Equities Limited v Deripaska per Carr LJ at [84]. Further, at [85], ‘The court should be astute to detect when contempt proceedings are not being pursued for legitimate aims. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings improperly. It is generally not appropriate to carry out a mini-trial on the merits when considering an application to strike out for abuse’.