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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 >> Pope v Energem Resources Ltd. & Ors [2009] EWCA Civ 1086 (14 August 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1086.html Cite as: [2009] EWCA Civ 1086

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
EXETER DISTRICT REGISTRY
(HIS HONOUR JUDGE GRIGGS QC; MRS JUSTICE BLACK)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th August 2009

Lord Justice Richards:

1. This case arises out of a tragic event in November 1998 when Jason Pope, who was working as an employee at a mine in Angola, was kidnapped by guerrillas. He has never been seen again and is presumed dead. Three other employees were kidnapped at the same time and have likewise not been seen again. In addition, four employees were killed at the time.
2. The employer was Branch Energy Ltd, which has since become Energem Mining (IOM) Limited. I shall call it "IOM" even though it has the title Branch Energy Limited in the proceedings to which I will come. The parent company of IOM was formally Diamond Works Inc., now Energem Resources Inc. I will refer to it as "Energem".
3. The applications now before the court arise out of proceedings brought against IOM and Energem by Jason's mother, Mrs Pope, and his brother, Damian Pope. Energem held a life insurance policy with Norwich Union, which immediately paid out $400,000 in relation to the four employees who were killed. A dispute arose, however, in respect of Jason and the other three employees who were kidnapped. The insurer required evidence that the kidnapped employees were dead and argued further that if they were, the deaths arose out of the same event as the other deaths and that on the terms of the policy the $400,000 payment had exhausted its obligations in relation to that single event. While argument about that continued, salary payments continued to be made for 16 months in respect of the four kidnapped employees.
4. Eventually, in late 2003, the insurer, without admitting liability, agreed to pay out a second sum of $400,000, to be split pro rata between the families of the four kidnapped employees. A settlement was reached with the families of the other three, under which Energem released its claims against the insurer and the families released their claims against Energem and IOM. The families of the other three were also left with the salary payments.
5. Jason Pope had no wife or dependants. His mother, Mrs Pope, was his beneficiary. She refused to take part in the settlement with the insurer. Her share of the $400,000 was therefore paid into a bank account on certain terms. I will refer to that share as the "insurance monies".
6. In August 2004 Mrs Pope issued proceedings in the High Court against IOM in respect of alleged breach of contract as employer. The case number of the proceedings in the court below was 4EX90048. I shall refer to them as the "first proceedings". The main aspect of the claim was that IOM did not have in place a life insurance policy as provided for in the employment contract and that the life insurance policy effected by Energem with Norwich Union did not provide sufficient cover. I should explain that clause 5.5 of the employment contract conferred an entitlement to a life cover policy equivalent to 60 times the employee's basic monthly salary at the time of death.
7. In order to pursue the claim Mrs Pope needed to obtain appointment as personal representative of Jason's estate. There was a delay until June 2005 before this could be done.
8. IOM took steps to pay the insurance monies into court and defended the claim, asserting a counterclaim for the salary payments made after Jason had been kidnapped. In August 2005 Mrs Pope sought to enlarge the first proceedings, in particular by: (1) adding in claims for fraud in relation to the behaviour of Energem and IOM after the attack including its dealings with the insurer; (2) adding in claims for negligence at the mine; (3) applying to represent the families of the other three kidnapped employees and to add in claims by them; (4) applying to add Energem as a defendant together with IOM; and (5) adding claims for aggravated and exemplary damages.
9. This led to a series of hearings before HHJ Griggs in the Exeter District Registry. By an order dated 4 June 2007 the judge directed that the case proceed on the basis of Mrs Pope's original claim alone. He refused to allow Mrs Pope to represent the other families and to add claims by them; he also refused to join Energem as a defendant; and he struck out the claims for fraud and negligence. An application for permission to appeal against that order was refused by the Court of Appeal (Gage LJ and Arden LJ) in November 2007: see the judgment at [2008] EWCA Civ 994.
10. Prior to the hearing before HHJ Griggs and as an alternative strategy, Mrs Pope had made an application to Bristol District Probate Registry seeking appointment as the personal representative of the estate of each of the other three kidnapped employees. That application was dismissed by the District Registrar in a reserved judgment following a hearing in September 2007. In his judgment the District Registrar made no order as to costs. IOM, which had been represented at the hearing, raised this with the District Registrar, inviting him to consider submissions as to costs and to give a reasoned ruling. He declined, on the basis that no application had been made at the hearing. IOM then sought to appeal that matter to the High Court. On 11 February 2008 Black J granted the necessary extension of time and allowed IOM's appeal, finding that the District Registrar had erred in failing to exercise a discretion as to costs. She remitted the matter to the District Registrar for determination by him.
11. Black J did, however, make a costs order against Mrs Pope in respect of the costs of the appeal to the High Court. An application by Mrs Pope for an extension of time for permission to appeal against that costs order is one of the matters before me today: the reference number is B4/2008/1642.
12. Immediately after the District Registrar's decision refusing her application for appointment as personal representative of the estates of the other three employees, Mrs Pope issued fresh proceedings in the High Court. The case number of those proceedings was 7EX90093. I will refer to them as "the second proceedings". The second proceedings named both IOM and Energem and also those companies' solicitors as defendants. Not only did they cover the ground of the first proceedings, but they also included what were in substance the very claims that HHJ Griggs had refused to allow Mrs Pope to add by way of amendment to the first proceedings: that is to say, they included claims in fraud and negligence against IOM and Energem, as well as claims on behalf of the estates of the other three kidnapped employees. In addition they included claims in fraud against the defendants' solicitors, Memery Crystal LLP, as a firm and against a named partner, Mr Harvey Rands.
13. The second proceedings were not served until January 2008 and particulars of claim in them were not served until the end of March 2008. In the intervening period Mrs Pope applied to HHJ Griggs, without notice to the other parties, for an order that her son, Damian Pope, be appointed as personal representative of the estates of the other three employees or of the relevant dependants. On 19 February 2008 the judge made the order sought. On 25 April 2008 IOM and Energem applied to have the order set aside or for the particulars to be struck out or conditions imposed. That application came before HHJ Griggs on 24 July 2008, together with a number of other applications relating to the two sets of proceedings.
14. At the hearing the judge gave an order ruling on certain issues relating to the first proceedings, but he reserved judgment on other issues, including the application in relation to the 19 February order allowing the appointment of Damian Pope as a personal representative. Parts of the order made in respect of the hearing on 24 July 2008, referred to in the papers before me as Order A, are the subject of an application by Mrs Pope for permission to appeal, for which an extension of time may be needed though even this is a subject of dispute.
15. The judge then handed down a short further judgment on 17 September, having previously made a draft of that judgment available to the parties. Before the judgment was formally handed down on 17 September there was further oral argument, which the judge took into account in relation to the judgment handed down and the orders consequent upon it. Two further orders each dated 17 September 2008 were drawn up. One, referred to in the papers as Order B, related to the first proceedings. The other, referred to as Order C, related to the second proceedings. Substantial parts of each of those orders are the subject of applications by Mrs Pope or Damian Pope for permission to appeal, for which again an extension of time may be needed. I shall come to the relevant detail of the orders in due course. The most important points in terms of overview are that the judge struck out the claim by Mrs Pope and struck out the claim against the solicitors. He left in place the order of 19 February and added Damian Pope as a claimant and allowed Damian Pope to pursue a claim in contract and negligence but not in fraud.
16. Energem and IOM sought permission to appeal against the judge's refusal to set aside the order of 19 February. The reference number for that is A2/2008/2404. On 6 May 2009 I granted permission to appeal in respect of that matter on consideration of the papers. On the same date I gave directions for an oral hearing in respect of the permission applications by Mrs Pope and Damian Pope arising out of HHJ Griggs' orders of 24 July and 17 September 2008 and related matters.
17. Those various applications have come before me for oral hearing today. I have received lengthy skeleton arguments from the applicants, both in the papers filed and in the form of additional skeletons for the hearing itself. I have also received written submissions by Mr Clutterbuck on behalf of IOM and Energem, dealing in particular with a point raised in the directions I gave for the hearing. I have heard today from Mr Damian Pope and more briefly from Mrs Pope. It is right to say that the papers and the submissions made in respect of them are voluminous. My judgment, although inevitably of some length, will tackle matters on a more abbreviated basis. For clarity I propose to take in turn each of the main orders that it is sought to appeal.
18. I deal first with Black J's costs order, A2/2008/1642. In her decision on costs, Black J pointed to the fact that IOM had succeeded in the appeal before her. She took into account the submissions made by Damian Pope on behalf of Mrs Pope, which included the point that the District Registrar at the end of the day might still impose no order for costs and the concern that costs were being used with a view to bankrupting Mrs Pope and disabling her from pursuing the various proceedings. But the judge said that the reality was that without the appeal IOM would not have achieved the substantive consideration of the costs issue by the District Registrar which the judge had held should take place. It would have been open to Mrs Pope to concede the appeal and, without a hearing, to allow an order that the matter go back to the District Registrar for argument. But she chose not to take that course and in the circumstances, in the judge's view, she must pay the costs of the appeal.
19. In her grounds of appeal to this court Mrs Pope contends that the appeal to Black J was the result of a serious procedural error on the part of the District Registrar, not any mistake on the part of Mrs Pope, and that it was inherently unjust to award costs against her. It is said again that the District Registrar will very probably not change his own order as to costs on the remittal of the case to him. Various of the underlying legal issues are canvassed. Further written submissions contend that Black J was wrong not to treat the appeal before her as a rehearing, that she gave no weight to Damian Pope's submissions as to the costs of the appeal and that the reasons she gave in suggesting that Mrs Pope could have conceded the appeal were flawed. The further submissions also go back to the underlying legal issues, contending that counsel for IOM made wrong and false submissions before the District Registrar but for which the District Registrar would have decided the substantive matter in Mrs Pope's favour.
20. I have considered all the points raised. I should make clear that all the references to the underlying legal issues and submissions before the District Registrar are in my view misplaced. In deciding on the costs of the appeal to her, Black J had to deal with a distinct and narrow issue . It was a decision that lay in her discretion, a discretion with which the Court of Appeal would be very slow to interfere. I am satisfied that there was no legal flaw in the judge's approach to the issue and that the decision she reached in awarding costs to the successful appellant was well within the reasonable ambit of her discretion. None of the matters canvassed by or on behalf of Mrs Pope creates any real prospect of success on an appeal. The applications for an extension of time and for permission to appeal in relation to that matter are therefore refused.
21. I turn to the other orders which together are the subject of the applications numbered B4/2009/0552, B4/2009/0553 and A2/2008/2404A.
22. First, what has been described as Order A relating to 24 July 2008. This order related to the first proceedings. Mrs Pope complains first about paragraph 2 whereby the judge gave IOM permission to serve a re-amended defence and counterclaim in the form shown to the court. She takes issue with some of the content of the amended pleading, which she says should not have been allowed to be included. This was, however, a case management decision squarely within the discretion of the judge. I am satisfied that it was well within his discretion to allow it.
23. On this and other matters concerning discretionary case management decisions, Mrs Pope contends that the court should depart from its usual reluctance to interfere with such exercises of discretion and should do so in order to avoid what she describes as a gross miscarriage of justice. Underlying all this is a sweeping complaint about the way the whole case has been handled in the lower court, which it is said has prevented the applicants from putting their case forward properly and has caused them serious unfairness. This is tied to heavy criticism of the conduct of the defendants, whose honesty and integrity the applicants challenge and who they say should not have got the benefit of favourable rulings by the judge including those as to costs.
24. I see in all of this a clear attempt to re-open earlier stages of the case, which in my view cannot be permitted to be reopened now. That includes the judge's rulings in the first proceedings, which were the subject of an unsuccessful application for permission to appeal to the Court of Appeal in November 2007. In my judgment the history of the proceedings cannot now be rewritten. I must concentrate on whether the specific rulings now challenged are sustainable against the backdrop of the previous history. Insofar as the arguments advanced in support of the applications now before me are advanced on the basis that the court should go behind or reopen what was previously decided, in my opinion that line of argument is impermissible and unsustainable.
25. I had been dealing with paragraph 2 of Order A, which, as I have said, was within the judge's case management discretion. I am not persuaded that to leave that order in place will give rise to any arguable miscarriage of justice as alleged.
26. Complaint is made next about paragraph 4 of Order A, dismissing Mrs Pope's applications to set aside or vary certain costs orders contained in previous orders made in respect of earlier hearings. The main point of complaint is that the judge did not hear oral argument in support of the applications. The transcript of the hearing of 24 July shows that the judge had to place a time limit on oral submissions, and it seems fair to say that Mrs Pope and Damian Pope had got relatively little time, but that was a matter within the judge's discretion and it was for them to decide how to use their time. I do not think that they can legitimately complain that they have not had any opportunity to make submissions in relation to this or other matters to which I will come in due course. In any event I can see no arguable basis for setting aside the earlier costs orders, which of course were themselves made in the exercise of a wide judicial discretion, and I am satisfied that there is nothing in the attempt to appeal this matter.
27. I should add that insofar as Mrs Pope is seeking permission to appeal against the previous costs orders, and I think she is, she has two further problems, one of which is delay and the other is that one of the orders was an order in respect of which permission to appeal, as I see it, was sought previously and was refused by the Court of Appeal in November 2007. Those matters, together with the lack of any substantive merit to the challenge to the judge's discretion as regards costs, render hopeless any attempt to appeal the previous costs orders.
28. Returning to Order A, the next matter of complaint concerns paragraphs 6 and 7 of the order, whereby the judge ordered that a sum of £30,000 plus interest be paid to IOM out of the monies in court towards satisfaction of one of the earlier costs orders, but on the basis that the payment out was not to affect IOM's entitlement to apply towards reduction of Mrs Pope's claim the full amount of the sum originally paid into court, that is to say the full amount of the insurance monies. This was a matter that concerned me when I gave directions for an oral hearing of the permission applications, because I was not clear as to the status of the monies in court. I have now had the benefit of further written submissions on this from both sides.
29. Mr Clutterbuck, in his submissions for Energem and IOM, has explained that the insurance monies paid by the insurer in respect of the death of Jason Pope were paid first into a bank account in Energem's name but were subsequently paid into court following the issue of the first proceedings. In those proceedings IOM argued at an early stage that it could bring the insurance monies into account on the basis that they belonged to Mrs Pope and went to diminish her or the estate's loss. She argued that, under what she called the "benevolence exception", she could have the insurance monies and leave them out of account in pursuing her claim against IOM. HHJ Griggs decided that issue in IOM's favour and it was one of the matters in respect of which the Court of Appeal refused permission to appeal in November 2007. The position of IOM and Energem in relation to the insurance monies is therefore that they belonged to Mrs Pope. She has chosen to leave them in court and they are properly available as a fund from which to seek payment of costs orders against her.
30. Mrs Pope and Damian Pope have put in very lengthy written submissions in response, which, amongst other matters, contain an extremely detailed account of what is said to have happened in relation to the insurance monies and make various allegations of fraud and impropriety in relation to the handling of the monies over time. The history, which I do not propose to set out, includes reference to payment of the monies into a trust account for Mrs Pope before eventually they were paid into court. She refers to the monies as her "trust money" and does not actually dispute her entitlement to that money, but she makes strong complaint about HHJ Griggs' ruling that it could be taken into account in determining the amount of IOM's liability to her as personal representative of Jason's estate.
31. I need in this connection to refer again to the judgments of the Court of Appeal on the permission application in November 2007, where the status of the insurance monies then held in escrow and not yet paid into court was considered in the context of the rejection of Mrs Pope's contention that they could not count towards the damages or payments to which she was entitled under the contractual claim brought by her as Jason's personal representative against IOM as his employer. The court plainly considered that, whatever the precise status of the monies, they could effectively be set off against sums payable by IOM.
32. Having considered the Court of Appeal's judgment on that occasion and the various submissions now made, I have concluded that the monies in court are properly to be treated as belonging to Mrs Pope as the personal representative and indeed beneficiary of Jason's estate and that she can withdraw them from court at any time without legal inhibition. While they remain in court it is open to a judge to order, where appropriate, that a costs order against Mrs Pope, or a payment on account of such order, be paid out of those monies. The order so made by HHJ Griggs on 24 July 2008 was made in the proper exercise of his discretion and I can see no realistic prospect of successful appeal against this part of Order A.
33. Accordingly, having considered all the points raised in relation to order A, I am satisfied that an appeal would have no real prospect of success and that permission to appeal against it must be refused.
34. I turn to Order B, the order of 17 September 2008 relating to the first proceedings. The first point of complaint is paragraph 2 of the order, whereby the claim was to be struck out unless Mrs Pope served in tabular form by 15 October a list of documents disclosable in accordance with the relevant rules. It is said, amongst other things, that the judge was wrong to use the hand-down of the judgment on 17 September to "ambush" Mrs Pope on the issue of disclosure and that the existing disclosure notice did in any event conform to the rules. In my view there is nothing in the complaint made. The judge was plainly entitled to give case management directions as to the further conduct of the proceedings on the hand-down of his judgment. He was entitled to take the view that the existing disclosure list was not sufficient and the direction he made was an unimpeachable exercise of discretion.
35. Paragraph  3 of the order made provision that, in the event of Mrs Pope failing in her application for permission to appeal against the costs order of Black J as had now happened, IOM could apply for those costs to be paid out of the monies in court and that any such application be dealt with in writing. Mrs Pope submits that this was a matter for the Court of Appeal to deal with or that the judge somehow jumped the gun. I disagree. It was open to the judge to make the provision he did for dealing with the matter in the event that the costs order were to stand. I have already dealt with the point that the monies in court may properly be used to meet such costs orders. The matter with which Black J was dealing arose, as I understand it, in the context of the first proceedings and I can therefore see no jurisdictional bar to that matter being raised in those proceedings. Whether, if it was to be raised, it should have been raised with Black J herself rather than with HHJ Griggs is a matter that can be canvassed if necessary in the written submissions directed by the judge and can be decided accordingly. It is not a point on which a decision is called for by me today.
36. Paragraph 4 of Order B was another provision relating to payment of costs out of the monies in court. I have dealt with the relevant issues. The complaint, as it seems to me, has no substance to it, for the reasons already given.
37. Paragraph 5 is an order that Mrs Pope pay the costs of one of the various interlocutory applications, to be subject to detailed assessment if not agreed. She complains about being ordered to pay the costs at all and about the detailed assessment. Again, however, this was an order well within the judge's discretion.
38. At paragraph 6 of the order, the judge dismissed an application by Mrs Pope and Damian Pope to consolidate the first proceedings and the second proceedings. Here, too, it is said that the judge did not hear submissions from the applicants. But this, as it seems to me, is another example of their having had to choose how to use the time, albeit limited time, allotted to them for submissions at the hearing on 24 July. In any event, however, the judge was in my view plainly right to keep the two sets of proceedings separate. As he said in his judgment of 17 September, Mrs Pope's claim in the form in which it was left after his orders was relatively straightforward and ought to be capable of being disposed of quickly, indeed by agreement. Mrs Pope had been struck out as claimant in the second proceedings and the effect of the judge's other orders gave those proceedings a significantly different shape from the first proceedings. That shape will of course depend on the outcome of the appeal by IOM and Energem for which I have previously given permission, but in any event it seems to me to have been well within the judge's discretion and wholly in accordance with the overriding objective to decline to consolidate the two sets of proceedings. I see no realistic prospect of a different view being taken, however much time was allowed for submissions about it.
39. Paragraph 7 of Order B dismissed of the court's own initiative, as being entirely without merit, an application by Mrs Pope and Damian Pope dated 28 July 2008 seeking a revocation of earlier orders and a stay on the ground that new evidence of fraudulent misrepresentation by the solicitors, Memery Crystal, had come to light after the hearing on 24 July. It is submitted that it was wrong to dismiss the application without hearing the applicants and that this course showed the court not to be an impartial tribunal. It seems to me, having looked at the relevant documents, that the application of 28 July was without substance despite the fact that the documents filed with it were voluminous, and I take the view that the judge was fully justified in adopting the course he did in relation to it.
40. I have covered the main points advanced in respect of Order B. Here too I have concluded, for the reasons given, that an appeal would have no real prospect of success and that permission to appeal must be refused.
41. I turn finally to Order C, the order of 17 September 2008 relating to the second proceedings. The main feature of this order about which complaint is made is paragraph 2, by which the entire claim by Mrs Pope and the claim against the solicitors, both the firm and the individual partner, were struck out. It is submitted that the judge was wrong to strike out those claims without disclosure or evidence (that is to say, from the defendants and also from the insurer, Norwich Union). It is also said that he erred in failing to take into account evidence already presented to the court and in ignoring other evidence and that he erred in failing to give any reasoning or clarification as to which specific matters were to be struck out. In any event it is said there was evidence to support the claims of fraud against the solicitors and a general submission is made that Mrs Pope was wrongly denied the opportunity to bring her full claims before the court.
42. It is true that the judge's short judgment handed down on 17 September does not given any substantial reasons for the strike-out decisions, but the fact is that there was extensive argument about the issues at the hearing of 24 July and again on 17 September after the parties had received the draft and before the judgment was formally handed down. The basis on which strike-out was sought was clear from the argument and the written material to which reference was made in the course of it. Moreover, as it seems to me, in the course of argument Mrs Pope and Damian Pope had ample opportunity to make submissions on the relevant issues.
43. It also seems to me that the decisions to strike out were entirely justified as a matter of substance and although I accept that it would have been better to include brief reasons in the judgment handed down, I am not persuaded that an appeal against the judge's strike-out decisions would have any real prospect of success or that the ventilating of these issues on a full appeal would be of help to anyone. There was, it seems to me, no justification for allowing Mrs Pope to bring a separate claim. Anything she was entitled to raise could be, or could have been, raised in the first proceedings. Nor was there any sustainable basis for the very serious allegation of fraud brought against the solicitors, and the Court of Appeal in November 2007 had already made clear the strict approach that will be adopted where someone seeks to make a claim in fraud.
44. That last matter is also relevant to paragraph 3 of Order C. By that paragraph the judge granted Damian Pope permission to serve amended particulars of claim, save for the deletion of paragraph 33 (which alleged breaches of statutory duty) and other references to statutory duty. It seems that the complaint is not about the positive permission granted or about the deletion of references to breach of statutory duty (though if it were, it would not be well founded). The complaint is about the underlying ruling that led to the amended particulars of claim being drafted in a way that excluded allegations of fraud. What is said, in effect, is that the allegations of fraud contained in the original particulars of claim should have been allowed to proceed and should not have been required to be removed by way of amendment. This is the matter on which Damian Pope concentrated in his oral submissions before me today. He took me in some detail through the relevant details, going back to the early documents which were in fact relied on in support of the application to add a claim of fraud to the first proceedings. He sought to contend that there were features of the defendant's approach to the insurers, the way in which they sought to secure payment from the insurers, which, as is alleged, involved fraudulent representations to the insurers and to others.
45. I do not propose to go into great detail in relation to those matters. It suffices to say that Mr Pope has not persuaded me that the early documents he concentrated on established an arguable case of fraud of which he could complain as personal representative of the estates of the three kidnapped employees. In any event, the substance of this was all determined by the judge in the first proceedings and by the Court of Appeal in refusing permission to appeal in November 2007. There is some additional material to which I have been referred, but I am not persuaded that, by itself or in conjunction with the earlier material, that establishes an arguable case of fraud that can properly be pleaded in the second proceedings.
46. Mr Pope has said that the applicants are in difficulties without full disclosure which might enable a case of fraud to be established at trial. But that is to put the cart before the horse. The question is whether there is a case that ought to be allowed to be advanced in the first place, leading then to disclosure and to trial, not whether there should be disclosure that would enable a case fit for trial properly to be advanced. I do not accept that there is a case that ought to be allowed to be advanced here, nor do I think that it is permissible to use the second proceedings in a way that would enable the rulings in the first proceedings to be circumvented.
47. I am therefore not persuaded that there was any arguable error in the judge's decision refusing to allow the claims in fraud to proceed and, as I have indicated, I am concerned that much of this aspect of the case highlights the way in which it is sought to use the second proceedings to get round or reopen adverse rulings against Mrs Pope in the first proceedings. It is sought to do so because it is said matters were not properly considered in the first proceedings. The applicants have been very frank about the underlying point. In my judgment, however, it is not a proper use of court procedures, and great care needs to be exercised to avoid the second proceedings being used in abuse of process as a way of ventilating points that were excluded from the first proceedings in rulings that it is no longer open to the applicants to challenge.
48. Insofar as the judge allowed the claim in negligence and under the Law Reform (Miscellaneous Proceedings) Act 1934 to be canvassed in the second proceedings, he might be open to criticism for inconsistency with his ruling in the first proceedings, but that cannot help Mrs Pope or Damian Pope now in their challenge to the judge's order in the second proceedings. It can at most assist IOM and Energem in their challenge to the judge's ruling in the second proceedings.
49. I move to paragraph 4 of Order C, which dismissed the application for the two sets of proceedings to be consolidated. I have dealt with this already when considering the corresponding provision of order B.
50. The next aspect of order C about which complaint is made is paragraph 7, by which the judge ordered that, insofar as costs had been incurred by the defendants on the claim brought by Mrs Pope, she was to pay those costs, to be subject to detailed assessment if not agreed, and was to pay £5,000 on account of such costs by 30 September. Mrs Pope contends that the judge was wrong to order her to pay costs and to order detailed assessment without providing that it should take place only at the end of the proceedings, and also in ordering a payment on account. As in relation to other costs orders, however, I consider there to be no realistic basis for any challenge: these matters all fell plainly within the reasonable ambit of the judge's discretion and the Court of Appeal would not interfere with the decisions he made.
51. Finally, paragraph 8 of Order C ordered IOM and Energem to pay Damian Pope one-third of the costs of their application of 25 April 2008, by which they sought, amongst other things, to have Damian's appointment as personal representative struck out.
52. Insofar as that part of the order was adverse to IOM and Energem, an appeal against it forms part of the appeal against this aspect of the judge's decision, for which I have already given them permission to appeal. I am concerned here only with the contention by Damian Pope that the judge should have awarded him all the costs of that application and not just one third of the costs. This is a contention that I reject. This is another case of judicial discretion with regard to costs with which the Court of Appeal could not realistically be expected to interfere.
53. Accordingly I am satisfied that Mrs Pope and Damian Pope should be refused permission to appeal against all those aspects of Order C that they seek to challenge.
54. I have dealt expressly with what appear to me to be the main points in these proceedings on which permission to appeal is sought. I have indicated my conclusion that none of them has any real prospect of success and that permission to appeal must be refused in relation to them all. I may not have dealt expressly with everything that the applicants seek to raise, but I have considered the papers as a whole and have found nothing else in them on which in my view permission to appeal could be justified.
55. Since there is nothing of substance meriting the grant of permission to appeal, I do not need to deal separately with the disputed issue as to whether an extension of time is needed for applying for permission to appeal against the orders of 24 July and 17 September. If an extension of time is needed, it is refused for the simple reason that an extension cannot lead to any useful outcome. I have already made clear that it is too late to apply for permission to appeal against earlier orders and that an extension of time is also refused in relation to them.
56. I have to say that the more I have looked at these papers and have heard submissions from the applicants, the more concerned I have become that Mrs Pope and Damian Pope seem to have lost any sense of perspective about the litigation they are pursuing or seeking to pursue. I have great sympathy for Jason's family. His disappearance must have put immense strain on everyone. I can understand that this may have made it difficult to adopt a rational and sensible stance when it came to the question of litigation, but the applicants seem now to be driven by an overwhelming strength of feeling against the defendants and they seem determined to fight virtually every point, including seeking to reopen matters previously decided against them. They are at obvious risk of incurring costs liabilities, or may already have incurred costs liabilities, that exceed not just the insurance monies paid out in respect of Jason's presumed death but anything else that they might have hoped to gain out of the litigation against the defendants. For my part, I cannot see how this will help them deal with the loss of Jason and I would urge them to think again about their position, but that of course is a matter for them.
57. A transcript of this judgment should be included in the papers for the full court considering the appeal by IOM and Energem in case A2/2008/2404, for which I previously granted permission and which, in the light of my decisions today, is the only matter arising out of these various cases and applications that will now be before the full court.

Order: Applications refused