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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wickramaratna v Cambridge University Chemistry Department [2004] EWCA Civ 1532 (02 November 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1532.html Cite as: [2004] EWCA Civ 1532

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MACKAY)

		Royal Courts of Justice Strand London, WC2
		2nd November 2004

1. LORD JUSTICE BROOKE: This is an appeal by the claimant, Ms Wickramaratna, against an order made by MacKay J on 8th March 2004 whereby he refused to set aside an order made by Master Fontaine on 9th October 2003 in the claimant's absence. On that occasion the Master had struck out the claim and directed that the claimant be barred from making any further applications in the matter without first obtaining the leave of the court. I will explain in due course the nature of the relief the claimant was seeking from the judge. In the event the only issue on which Rix LJ granted permission to appeal went to the question whether a High Court Master has power to make a civil restraint order. Such an order was formerly known as a Grepe v Loam order and is now known as a "limited civil restraint order" (see CPR 2.3(1) for the definition introduced by an amendment which took effect from 1st October 2004). It is now clear that a judge of any court (a term which includes a High Court Master: see CPR 2.4) has power to make a civil restraint order, but we are concerned on this appeal with the position as it stood last October. The appellant suggested that she had not had the opportunity to deploy full argument before Rix LJ, but it is quite clear from his judgment that he had a good grasp of the arguments. He heard her in the 20 minutes which is allowed under the rules and limited the grant of permission to appeal to this single ground.
2. So far as the background is concerned, the appellant is aggrieved about the way that she was treated by the defendant university's Chemistry Department. In March 2003 her 2-year fixed term contract with the university's Engineering Department ended — relationships became rather strained towards the end — and on 17th June 2003 she filed an application with an Employment Tribunal alleging unfair dismissal and racial discrimination. On 18th June 2003 she attended an interview in connection with her application for a postgraduate studentship within the Department of Chemistry and submitted an application for funding. On the same day she withdrew her application at the Employment Tribunal. It appears to be common ground that she was given a favourable indication by the supervisor who interviewed her, but the university says that its arrangements are such that an offer can only formally be made by the Board of Graduate Studies. Professor Sanders gave the university's account of events in a witness statement in the county court proceedings dated 15th August 2003.
3. On 24th June the appellant ascertained that problems had arisen in relation to her application for a postgraduate studentship when she was under the impression that she had been granted one. On 25th June she reinstated her application at the Employment Tribunal and added a claim to be reinstated to the studentship with the Department of Chemistry. On 30th June the university's Board of Graduate Studies told her that the department would not accept her as a graduate student. On 10th August she withdrew her additional claim from her Employment Tribunal application. Instead she turned to the courts for relief.
4. On 12th August 2003 the appellant issued a freestanding application (CB 303359) for an injunction in the Cambridge County Court. She ticked neither of the boxes entitled "By application in present proceedings" or "Under statutory provision"; but a member of the county court staff sealed her application and furnished a return date of 19th August. Anyone possessing greater experience of civil proceedings would have appreciated that it is not possible to issue an application in civil proceedings for an interim injunction in a vacuum, and that a claim form was needed. It appears from what the appellant told us today that a member of the court staff went and consulted one of the judges of the court on 12th August, and as a result notice was given for a hearing on notice on 19th August. She says that she was encouraged to draft a form of order, and a form of order was stamped with the county court stamp, as was the witness statement that she lodged. The appellant later alleged that this document which had been stamped, which contained draft minutes of order, constituted evidence that she had been granted the injunction she sought. There is certainly no evidence that a judge granted such an injunction.
5. A further application (CB 303400) seeking identical relief but with changes to the details of the defendants was issued on 15th August with a return date of 22nd August. On 22nd August Judge Sennitt directed that the matter should be adjourned, together with an application by the defendants to strike out the claim, until 17th September when it should be heard by a circuit judge who had no connection with Cambridge University. That direction appeared on the face of the judge's order. On the same day the claimant formally withdrew claim CB 303400 by a letter to an unidentified Circuit Judge, in which she said that she felt that the university and the solicitors had very close relationships with the courts of Cambridge and that this factor was biasing the proceedings against her.
6. On 22nd August she applied without notice in the High Court seeking an order restraining the Cambridge University Chemistry Department from, among other things, dismissing her from the post of PhD researcher. She was asking now that her injunction proceedings CB 303359 which she had told Judge Sennitt that she was abandoning might be reinstated in the High Court. Treacy J, sitting as a vacation judge, adjourned the application generally and granted her permission to restore it on the issue of a claim form and the issue and service on the respondent of an application notice.
7. On 26th August the claimant issued a claim form in the High Court. The claim was "to have injunction CB 303359 issued in the Cambridge County Court to be transferred, registered and reinstated in the High Court and the hearing to proceed in the High Court." On the same day she made a formal application for a hearing of her application for an injunction in the High Court.
8. On 1st September Henriques J declined to hear an application for an injunction that day and directed the claimant to notify Cambridge County Court within seven days if she wished the matter to proceed at that court. He apparently took the view that a full hearing of her application would be likely to take place more quickly at the Cambridge County Court. On 2nd September, however, the appellant informed that court that she was withdrawing the proceedings of claim CB 303400 "having leave of the High Court giving permission to continue proceedings in the High Court and the defendants being unsuccessful in finding abuse of process in the High Court." Apparently the defendants had argued that the High Court proceedings should not go on.
9. Now that she had made it clear that she wished to proceed in the High Court, a new return date of 15th September was given for the hearing of her application for an interim injunction. On 15th September McCombe J dismissed that application on the merits. On 24th September Carnwath LJ refused permission to appeal to this court on paper, and on 26th September he renewed his refusal after a hearing in court. He apparently took the view that if there was to be a trial on evidence the sooner that it took place the better.
10. In the meantime, the claimant had on 15th September applied to Master Fontaine (as the designated Master) for directions for an expedited trial to be heard before 1st October. This application was returnable on 19th September.
11. On 17th September Judge Plumstead, sitting at the Cambridge County Court, set aside the claimant's notice dated 22nd August (which she deemed to be a notice of discontinuance) as an abuse of the process of the court and struck out what were described as the claimant's statement of case and application for an injunction in claim CB 303400.
12. On the same day the defendants also issued an application in the High Court for an order striking out the High Court proceedings, and this application was also returnable before Master Fontaine on 19th September. On that day Master Fontaine adjourned both the pending applications to a hearing date on 9th October, and gave directions for the filing of evidence. The claimant ought to have filed any evidence by 4 pm on 30th September, but in the event she did not file any evidence at all.
13. It appears that on 30th September, in separate proceedings in Cambridge, a judge at the Cambridge County Court made a restraining order against the claimant under the Protection from Harassment Act 1997 to protect staff at the university from further harassment, and that on the following day she was arrested in connection with an alleged breach of that order and compulsorily detained under the Mental Health Act 1983 as a danger to herself and others.
14. On 6th October she wrote a letter to Master Fontaine in these terms:

"I have been unexpectedly taken ill and have been admitted to the hospital from 1st October 2003. I am expected to be unavailable to attend any proceedings in the above matter for the month of October. I am hence forced to put on hold any matters until I am well again. I am hence applying for the hearing scheduled for the 9th October 2003 before you be postponed and the hearing adjourned until I am well enough to attend the proceedings. I shall get in touch with you as soon as I am well again."

She wrote a letter in similar terms to the defendants' solicitors. It appears that they received their letter before the hearing on 9th October, but Master Fontaine did not receive her letter. However, the Master was made aware of the reasons why the claimant was not present.

15. On 9th October in the claimant's absence Master Fontaine made an order which contained the following provisions:

"... Upon the Master considering that this claim is totally devoid of merit

It is hereby ordered that:

1. The claim be struck out under CPR 3.4.

2. The claimant is barred from making any further applications in this matter without first obtaining leave of the Court.

3. In the event that an application is made in this matter without leave of the Court being obtained, the defendants need not attend and the application shall be dismissed without it being heard."

16. We have been shown a copy of the defendants' skeleton argument which was lodged in support of their successful application to the county court on 17th September. It ran to 11 pages and was supported by detailed witness statements. Miss Stabler, who appears for the defendants today, has told us that a similar skeleton argument supported the application to Master Fontaine for a striking-out order in the High Court. The defendants were maintaining their contention on the facts that no contract for a studentship had ever been made. Section B of their skeleton argument set out sophisticated reasons why it was inappropriate to make a mandatory injunction requiring the continuation of a personal relationship between unwilling parties. They were also asserting that on the evidence the claimant had no real prospect of success. As I have said, the Master made an order striking out the claim on the grounds that it was totally devoid of merit.
17. It appears that the claimant went to Sri Lanka to stay with her parents in order to recuperate during October. She returned on about 19th November, and about that time she made an attendance before Douglas Brown J. No order was ever drawn up of the consequence of that attendance, although she was later to allege that Douglas Brown J had given her permission within the four corners of the Master's order to make an application to set aside Master Fontaine's order. MacKay J, having consulted the records, was not satisfied that any such order was made.
18. On 1st December the appellant applied to a High Court judge for an order setting aside Master Fontaine's order. Her application was accompanied by a 3-page document in which she complained that the hearing had proceeded in her absence although she was known to be unwell and unable to attend. She averred that since the order had been made ex parte it should be set aside pursuant to CPR 3.6. She also said that Henriques J had decided that there should be one hearing only, being the trial, and that Carnwath LJ on 26th September had made an express direction that the hearing of any further proceedings in the action should be expedited.
19. It is not wholly clear what then took place. As I have said, on the face of the application the applicant was applying to a High Court judge. On the face of it also appears the endorsement that it was to be heard by Master Fontaine, returnable on 15th December. During the course of this hearing I have tried to explain to Ms Wickramaratna that a litigant is not entitled to insist that an application which should be normally heard before a Master should be heard by a judge instead. It appears that the same application was listed in the morning before a judge (when the application went off) and in the afternoon, as appeared on the endorsement on the face of the application, before Master Fontaine. On that occasion a barrister appeared for the claimant and sought an adjournment, and the Master directed that the application be adjourned to 21st January 2004 with a time estimate of 3½ hours. She set a timetable for the exchange of evidence and the filing of a paginated bundle, and she directed the claimant to pay by 12th January 2004 the defendants' costs thrown away by the adjournment which she assessed at a sum slightly in excess of £2,000. The Master was clearly assuming jurisdiction to hear the claimant's application dated 1st December, and the claimant did not appeal against the Master's order.
20. In early January 2004 a firm of solicitors who temporarily acted for the claimant came off the record. On 13th January McCombe J refused an application by the claimant for a direction that her pending application before Master Fontaine be heard by a judge. On 20th January Master Fontaine directed that this application be adjourned and relisted on the first available day after 19th February. She refused to direct a reassessment of the costs that she had ordered and refused to transfer the application for hearing by a judge. In due course the claimant sought permission to appeal to this court against McCombe J's order, but that was in due course refused. Accordingly, her application was fairly and squarely before the Master.
21. On 19th January 2004 the claimant initiated proceedings in the Administrative Court. She complained that a Master did not have jurisdiction to determine the two applications under CPR 2.4 and paragraphs 2.2, 2.4 and 4.1 of the Practice Direction to CPR Part 2, and certainly not without her consent. She also complained that the same Master who heard the application to strike out in her absence when she was hospitalised and unwell ought not to hear the applications again, "to put both sides on an equal footing under CPR 1.2 and Article 6 of HRA."
22. On 22nd January Newman J sitting in the Administrative Court dismissed this application on paper on the grounds that it was misconceived. One of the reasons he gave was that Master Fontaine's order, which was valid until set aside on appeal (not judicial review), prevented the claimant from making applications in the matter without the leave of the court. He said that this application breached that order and was an attempt to circumvent an existing order of the High Court. The claimant renewed her application in the Administrative Court, which was listed for hearing on 11th March.
23. On 5th February the claimant renewed her efforts that her application to set aside the order of 9th October should not be heard by Master Fontaine. On this occasion she applied to the Senior Master for an order directing that her application should not be heard by Master Fontaine on the same grounds as she had set out in her judicial review application. On 13th February Master Turner dismissed this application and found that it was wholly without merit. She was then arguing that since her action related to an injunction, it could not at any stage be heard by a Master and that in any event she had lost trust in Master Fontaine.
24. On 1st March the claimant issued a quite new application for hearing before a High Court judge. She sought an order now:

"to rectify matters where there has been errors of procedure under CPR 3.10 and according to hearings and directions followed to restore claim. There have been several errors of procedure on the part of the court that need to be rectified according to CPR 3.10 to be considered according to CPR 3.x, CPR 23.x and CPR 1.x. The matter decides an injunction."

25. At the same time the appellant purported to withdraw her application before Master Fontaine by a letter of the same date addressing to "the Masters (senior master) of Queen's Bench Division" in which she said this:

"I am writing to inform that I am withdrawing the application dated 1st December 2003, submitted to the Masters Support Unit, to 'set aside the order of 9th Oct 2003'. This Application stands withdrawn from Masters Unit.

There were two issues to be determined by the Application: to set aside the strike-out of claim under CPR 3.6, as this makes an order relating to an injunction; to set aside the order requiring permission for application not pursued. Outstanding costs to date to be reserved to the next hearings in the claim."

She copied that letter to the defendants' solicitors.

26. On 5th March 2004 the defendants' solicitors issued an application for an extended civil restraint order. Both these applications were listed for hearing before a judge on 8th March. So far as the defendants' application was concerned, MacKay J directed that it be adjourned, and in due course a High Court judge in May granted the defendants' application, while directing that the new extended civil restraint order did not prevent the further steps or applications being undertaken in this court in relation to McCombe J's order of 13th January and MacKay J's order of 8th March, to which I now turn.
27. It will be remembered that the claimant formally withdrew her application for a direction setting aside Master Fontaine's order. It appears that she told MacKay J that she was now seeking an order from him that he should set aside that part of the Master's order that struck out her claim. The judge observed that Master Fontaine's civil restraint order was still in place, and that she required permission before issuing the present application. It appears that she referred him to an order made by Douglas Brown J on 21st November 2003, but the judge, after consulting the court's records, was satisfied that no such order had been made.
28. MacKay J then said that the claimant had decided as a deliberate matter of tactics to abandon the route by which she could have applied for a direction setting aside the strike-out order which was made in her absence. Instead she had decided to make this application to him. She had no permission to make it, and if it were a matter for him to decide whether to grant permission he would not do so, as there was no merit in it.
29. MacKay J therefore concluded that this was not an application which he should entertain. If he did entertain it, he was not willing to give permission for its continuation. He therefore dismissed it.
30. On 9th July 2004 Rix LJ heard the claimant's application for permission to appeal to this court. On this occasion the claimant made clear to him the nature of the points she had been trying to make in the lower courts (including the Administrative Court). She was asserting that a High Court Master had no power to make a civil restraint order. If that was correct, then she should not have encountered the procedural objection, which was sustained by MacKay J, that she needed the permission of the court before issuing any further applications. She went on to maintain that since a High Court Master had no power to make such an order, a High Court Master had no power to set it aside and that her application was properly made (without the need for any permission) before a High Court judge.
31. Rix LJ granted permission to appeal limited to this point of jurisdiction. He said that in the absence of this point, the claimant's various applications to the court had to be regarded, as MacKay J appears to have regarded them, as purely tactical or wholly misconceived and misguided matters. During the course of the present hearing, the appellant has sought to argue that as she never withdrew the rest of her application for permission to appeal, we should regard it as still outstanding. It is quite clear that Rix LJ expressly refused permission to appeal.
32. The essence of the claimant's case on this appeal is that notwithstanding what this court clearly said in Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113 ([2004 1 WLR 88) at [26] and [39]) a High Court Master has no power to make a civil restraint order because it is akin to an injunction of a type which a Master (or District Judge) is not empowered to make. Rix LJ helpfully set out the claimant's argument in his judgment ([2004] EWCA Civ 952) at paragraphs 17 to 22 in these terms:

"17. ... The applicant submits that it was not within the jurisdiction of a Master to make such an order, on the basis that it amounts to an injunction barring her from making further application in these proceedings. She draws my attention to the Practice Direction to CPR Part 2. That Practice Direction is headed, 'Allocation of cases to levels of judiciary'. The matter will become clearer if I begin with CPR Part 2.3, which is an interpretation section of the Rules. 'Judge' is there defined to mean:

' ... unless the context otherwise requires, a judge Master or district judge or a person authorised to act as such.'

Therefore, unless the context otherwise requires, the word 'judge' is a wholly inconclusive and compendious term. Part 2.4 also provides as follows:

'Where these Rules provide for the court to perform any act then, except where an enactment, rule or practice direction provides otherwise, that act may be performed-

(a) in relation to proceedings in the High Court, by any judge, Master or district judge of that court ...'

18. The Practice Direction to Part 2 picks up the matter where Rule 2.4 left it off. Paragraph 1.1 of the Practice Direction provides as follows:

'Rule 2.4 provides that Judges, Masters and District Judges may exercise any function of the court except where an enactment, rule or practice direction provides otherwise. This Practice Direction sets out the matters over which Masters and District Judges do not have jurisdiction or which they may deal with only on certain conditions ...'

19. Paragraph 2 of the Practice Direction is headed, 'Injunctions', and deals with that. Paragraph 2.1 deals specifically with search orders, freezing orders and orders authorising a person to enter land to recover, inspect or sample property. These may only be made by a judge. Paragraph 2.2 then states:

'Except where paragraphs 2.3 and 2.4 apply, injunctions and orders relating to injunctions, including orders for specific performance where these involve an injunction, must be made by a judge.

2.3. A Master or a District Judge may only make an injunction-

(a) in terms agreed by the parties;

(b) in connection with or ancillary to a charging order;

(c) in connection with or ancillary to an order appointing a receiver by way of equitable execution; or

(d) in proceedings under RSC Order 77, rule 16 (order restraining a person from receiving sum due from the Crown).'

20. Paragraph 2.4 states:

'A Master or District Judge may make an order varying or discharging an injunction or undertaking given to the court if all parties to the proceedings have consented to the variation or discharge.'

21. The applicant submits that a Civil Restraint Order is, in effect, an injunction and can only be made or lifted by a judge and not a Master, and that this is made clear by the detailed provisions of the Practice Direction to which I have just referred and which comments on Rule 2.4. The applicant has already drawn my attention to the case of Bhamjee v Forsdick No 2 [2003] EWCA Civ 1113, which is the foundation of the Civil Restraint Order, as it is now called, or what used to be known as a Grepe v Loam Order.

22. In paragraph 39 of [the Master of the Rolls'] judgment in that case, he referred to the fact that, as shown by paragraph 26 of his judgment, a Civil Restraint Order may be made at any level of court and by any level of judge. The question she raises is whether, in the light of the detailed provisions contained in Part 2 and its Practice Direction, that can be understood to refer to a Master."

33. I had never previously heard it suggested that a High Court Master did not have power to make a Grepe v Loam order. Jonathan Parker LJ has told us that Chancery Masters have habitually made such orders, when appropriate, without feeling any need to refer them to a judge, and he has recently consulted the Chief Master who has confirmed his understanding of the matter. This practice appears to be confirmed in note 18/19/35 in volume 1 of the 1999 edition of the White Book:

"And when either party to an action has made repeated frivolous applications to the judge or master, the court has power to make an order prohibiting any further application by him without leave (Grepe v Loam (1887) 37 Ch D 168; Kinnaird v Field [1905] 2 Ch 306)."

34. The purpose of this type of order, as was made clear by the judgment of this court in Bhamjee, is to protect the court's process from abuse. It is a regulatory direction of the type sanctioned in Strasbourg jurisprudence by the European Commission of Human Rights in H v United Kingdom (1985) 45 DR 281 (see Bhamjee at paragraph 17). It has the effect of directing the court office not to permit any further applications to be issued in the action in question without the permission of a judge or Master (who may be identified in the order). It is quite different from an injunction which is a word defined in the CPR Glossary (see the 2004 White Book, volume 1, section G1.1 at page 2379), as meaning:

"A court order prohibiting a person from doing something or requiring a person to do something."

35. I am wholly satisfied that Master Fontaine had jurisdiction to make the civil restraint order which she made on 9th October. I should make it clear that these comments are directed only to the type of civil restraint order now known as a limited civil restraint order which may expressly be made by a High Court Master, and do not necessarily apply to the more stringent type of order which only a designated civil judge or his deputy or a High Court judge or Court of Appeal judge may make. The different types of order which were described in the judgment of this court in Bhamjee v Forsdick are now set out in Practice Direction 3C of CPR Part 3.
36. Accordingly, I am satisfied that the appellant's appeal should be dismissed because the ground on which Rix LJ granted her permission to appeal is not well founded.
37. I should add one or two other matters. In Legal Aid Board v Adshead, CAT 26th November 1999, Sir Andrew Morritt V-C considered the circumstances in which a Grepe v Loam order had been made. On the facts of that case, he said that it ought not to have been made because no such notice was given to the defendants against whom it was made. The Vice-Chancellor said that they should have had the opportunity to answer the case being made against them and he was disposed to grant leave to appeal out of time against that part of the order.
38. When we enquired of Miss Stabler the circumstances in which the Master had made the order, it become quite clear that she made it on her own initiative, after she had concluded that the claim should be struck out as being totally devoid of merit. In my judgment, what the Vice-Chancellor said in Legal Aid Board v Adshead should not be interpreted as imposing a totally hard and fast rule, because it may well be apparent to a Master that if she does not make a civil restraint order against a background of persistent vexatious applications, then the litigant, who is absent when she made the order, may issue further applications without permission which may put defendants to additional costs. At all events, the matter has now been codified in the very recent changes to CPR Part 3 and the Practice Direction and I need say no more about that.
39. The other matter to which I feel it is appropriate to refer is that the Master made the order in the knowledge that the claimant was too ill to attend. In my judgment, it would have been better if she had made it clear on the face of the order that the claimant would have liberty to apply to set it aside as an order made in her absence when she was too ill to attend. However, it is quite clear that the claimant had ample opportunity to apply to have the order set aside and Master Fontaine had set aside an appropriate period of time for the hearing of that application, in which the claimant could have argued against the appropriateness of the strike out and countered the sophisticated arguments which had been advanced on 9th October of which she had notice by the defendants' solicitors. As MacKay J observed, she decided not to avail herself of that opportunity.
40. At the hearing before this court the appellant has repeatedly said that a litigant has a right to choose which level of judge she can have her cases heard by, and she has referred us to passages in the Practice Direction which make it clear that if an application of a particular type is being made then it may lawfully be heard by a judge or Master.
41. That is not to say — and we have found it impossible to persuade Ms Wickramaratna of this — that a litigant can insist on an application being made at a particular level of court. As I pointed out to her during the course of argument, if she does that she may be depriving the other side of the opportunity to have an order appealed at a lower level than the Court of Appeal. In my judgment, the correctness of this principle was amply borne out by the way in which Ms Wickramaratna continued to insist on propositions which were founded on an imperfect understanding of the rules, and MacKay J was wholly entitled to take the course he took.
42. The pity of all this is that, having been unable to be present at the hearing on 9th October, Ms Wickramaratna threw away her chance to have the point decided before the High Court Master. She chose to withdraw that application and she cannot then insist on having it renewed at some other level of court of her choosing.
43. For these reasons, I would dismiss this application.
44. LORD JUSTICE JONATHAN PARKER: I agree.
45. LORD JUSTICE KEENE: I also agree.

ORDER: Application for permission to appeal refused; applicant to pay £3,000 on account of the respondent's costs and any further application for costs to go for detailed assessment.

(Order not part of approved judgment) ______________________________