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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Foden, Re Section 42, Supreme Court Act 1941 [2006] EWHC 2727 (Admin) (26 October 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2727.html Cite as: [2006] EWHC 2727 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26 October 2006

1. MR JUSTICE GOLDRING: The applicant is a vexatious litigant. She seeks leave under section 42(3) of the Supreme Court Act 1981 to continue an action against Mr Foden, her former husband. She has represented herself before me today, with the help of a litigation friend and lay adviser, Mr Hamilton. I should make clear at the outset that, although on occasion the submissions were somewhat diffuse, they were helpful and clearly advanced. I heard them for the morning. Although it causes Mrs Foden some distress, I have made it quite plain that I cannot go behind the making of the section 42 Order.

The history

2. On a date which is not now clear, the applicant commenced proceedings in the Liverpool Magistrates' Court against Michael Kenneth Foden. Although I shall come to some of the detail, in broad terms she was alleging perjury and associated offences in the context of matrimonial proceedings which had taken place at first instance in March 2000, and in the Court of Appeal in November 2001. The proceedings were transferred from the magistrates to the county court. They were subsequently transferred to this court.
3. On 7 October 2003, an interim order declaring Mrs Foden vexatious was made. She was not there. She has been unwell for several years. She submitted a medical certificate. The making of that order resulted in an automatic stay of the proceedings which had been commenced (assuming they had been by then).
4. On 26 October 2003, Mrs Foden sought leave to continue the proceedings. On 2 December 2003, Ouseley J adjourned the application for an oral hearing. In his observations, he said this:

"To be heard with application CO/3209b/2003, the bankruptcy matter."

5. Unfortunately, that order was not complied with. The applicant, as I follow it, was not to blame for that. The application in the bankruptcy proceedings was separated from the present proceedings and dealt with on paper by Hallett J (as she then was). She refused leave. Although there is a complaint as to her absence of reasons, that is plainly not a matter for me.
6. Nothing happened in the present application until April 2005. The applicant had been unwell and submitted medical certificates to the effect she was unable to attend court. An unfortunate consequence of the delay is that papers in the case were split up in the Administrative Court office and in consequence some have not been recovered. Again, no fault attaches to Mrs Foden.
7. On 7 April 2005, a final order was made by the Divisional Court under section 42. Again, Mrs Foden was not there. Again, she produced a medical certificate. She subsequently sought to appeal the case to the Court of Appeal but failed. Because the order was made in her absence, she has, I think it is right to say, a considerable sense of grievance.
8. By 7 April 2005, Mrs Foden had brought no fewer than 33 actions since 1989. Some of their detail is set out in the judgment of Laws LJ when making the final order under section 42. The genesis, as he describes it, of much of the litigation is set out at page 5 of Laws LJ's judgment and relates to a property dispute concerning premises in the west country. It is not I think necessary for me to recite the details set out in Laws LJ's judgment. Suffice to say that I have read it with care. He puts it in these terms:

"The genesis of a great deal of this litigation is to be found in the purchase by her in 1984 of a bungalow in Yelverton, Devon, to house her ageing parents."

Other than that quotation, it is unnecessary to go into more detail.

9. Having failed in her substantive claim, Mrs Foden embarked upon what Laws LJ described as satellite and collateral litigation. The suggestion being made to the court was that, by one means or another, Mrs Foden was seeking to revisit the underlying property dispute. In the final paragraph of his judgment, Laws LJ describes Mrs Foden in terms of having become a compulsive litigant who has lost sense with reality. It was a judgment with which David Steel J agreed.
10. On 31 August 2006, the Liverpool case was once again before Ouseley J. Mrs Foden had reminded the court, as I understand it, that its resolution was outstanding. Ouseley J gave further directions. It is not necessary for me now to deal with them. Suffice it to say I have a voluminous amount of paper covering many aspects of the proposed litigation. Although this litigation relates to the Liverpool proceedings, and although as I have said the bankruptcy proceedings were dealt with separately, they have, as will become plain, some connection one with the other.
11. I turn then in a little more detail to the allegations made by Mrs Foden.
12. There are, as I understand it now, no pleadings as such available. If there were, I am not sure how helpful they would be. Although there are, as I have indicated, many documents and complaints, I think the matter can fairly be summarised in this way. Mrs Foden and Mr Foden separated. There were divorce and financial proceedings. The financial proceedings were heard by Judge Wigmore in the Exeter County Court. He gave judgment on 2 March 2000. In those proceedings, the financial position of Mr Foden was crucial. Mrs Foden was suggesting Mr Foden was understating his assets and income and overstating his outgoings. One element of those financial proceedings also concerned the properties to which reference had been made by Laws LJ in the judgment to which I have just referred. They also concern the former matrimonial home. Mrs Foden was unhappy with Judge Wigmore's decision. She sought permission to appeal it. There was ultimately a consent order made by the Court of Appeal on 22 November 2001. The court's constitution consisted of the President and Ward LJ. The order was in these terms:

" ...

AND ON HEARING Mr Jonathan Sharpe, counsel on behalf of the applicant and Mr Martin Meeke QC, counsel on behalf of the respondent

AND ON the respondent giving to the court an undertaking that in the event that this application for permission to appeal is refused, the respondent:

(a) will transfer all of his estate and interests in the former matrimonial home known as 'Torcello', 37 Langwood Close, Chaddlewood, Plympton, Devon, to the applicant by 4 April 2002, and

(b) will not enforce the Order as to costs made in the respondents' favour by District Judge White on 17 July 1991 ..."

There is also reference, I assume, to other orders as to costs, but it is unnecessary now to go into them and they do not appear on the copy of the document which I have before me.

13. Mrs Foden complains that she was pressurised (and they are my words, not hers) into accepting the order. She says she pointed out to the President that she had, among other things, information that Mr Foden had legacies which were not disclosed. She has also pointed out to me an example of where, on the face of it, Mr Foden did overstate his outgoings.
14. It has not been easy for me to isolate the Liverpool action from the plethora of the many other complaints set out in the documents. I shall try to summarise the essence of what Mrs Foden is asserting. It is set out in an affidavit dated 30 August 2006; in a skeleton argument of 31 August 2006. Mrs Foden supplemented those documents in submissions to me. It is right to say that the documents and the submissions covered a very broad area. They encompass complaints about lawyers, building societies and many judges. The essence may be summarised as follows:

1. Mr Foden misled the court about his assets.

2. The decree of divorce made by the court did not comply with the Matrimonial Causes Act 1973 in that it was brought about by fraud.

3. The solicitors who acted for her husband should not have. They had previously acted for her.

4. The proceedings were tainted by conspiracy and fraud. That led to a breach of a third party contract between Mrs Foden and her late mother and a building society. (That is of course a reference to the genesis of the litigation referred to by Laws LJ.)

5. The dishonesty of solicitors who advised her or acted against her was at the behest of Mr Foden and when acting as his agent. As his agents, they misled the court.

6. As a result, the divorce was unlawful. She was made bankrupt on 17 October 2002 when she should not have been. It ultimately led to her being wrongly declared vexatious.

15. I should complete the history as necessary. The former matrimonial home was never transferred to Mrs Foden as was required by the Court of Appeal's Order. She was declared bankrupt on 17 October 2002. On 7 February 2005, there was an application before District Judge Moon in the Plymouth County Court. It was heard by him on 13 April 2005. The application was by Robert Derek Smailes, described as the trustee in bankruptcy of Mrs Foden. He sought, among other things:

"1. A declaration as to the respective beneficial interest of the applicant and the second respondent in the freehold property situated at and known as 'Torcello', 27 Longwood Close, Chaddlewood, Plympton, Plymouth ...

2. An order for delivery up of possession of the property ...

3. An order that the property be sold ...

4. An order that [Mrs Foden and Mr Foden] concur in such sale ...

...

6. An order that the net proceeds of the property be divided and paid to [Mr and Mrs Foden] in such shares as 'this court shall think fit pursuant to the declaration contained in paragraph 1 above'."

16. District Judge Moon, as I have said, heard the application on 13 April 2005. The copy of his order recites that he heard counsel for the applicant. He read the documents. He was satisfied as to service upon Mr and Mrs Foden, neither of whom attended. He declared:

"The applicant and the second respondent [Mr and Mrs Foden] are each beneficially entitled to the property known as 'Torcello'."

He ordered that vacant possession be given before 11 May 2005, and that thereafter the property be sold. As to the division of the proceeds of the property, he ordered that the trustee in bankruptcy, in other words the party reflecting Mrs Foden's interest, be awarded 55 per cent, and Mr Foden, as I understand it, be awarded the balance.

17. In the light of the order which had previously been made by the Court of Appeal, District Judge Moon's Order on its face seems a little puzzling. Mrs Foden does not appear to have obtained the interest in the house to which she was entitled by reason of the Court of Appeal's Order to which I have referred. I shall return to that topic shortly.
18. I return now to the Liverpool proceedings.
19. I have some sympathy for Mrs Foden. I have no doubt about the genuineness of her feelings regarding the injustice she feels she has suffered. However, when stripped of its many irrelevant aspects, what Mrs Foden is seeking to do in the action against Mr Foden is to re-litigate the matrimonial proceedings. She is also seeking to do so by re-opening the many issues dealt with in the previous litigation and referred to by Laws LJ. In my view, neither course is appropriate. For the proceedings against Mr Foden to continue would amount to an abuse of the process, and there are no reasonable grounds for them. In the circumstances, I shall give leave to make the application, but I refuse it.
20. Finally, I return to the issue of the former matrimonial home and the order made by District Judge Moon. Because of her status, as I have already indicated, Mrs Foden was refused leave to appeal that order. She has not been able to see the relevant documents, which of course may well explain the order made by District Judge Moon. However, I would be unhappy simply leaving the matter there. I shall order that there be prepared a transcript of this judgment at public expense. I order that a copy of it be sent to District Judge Moon. If the order he made was in ignorance of the Court of Appeal order requiring Mr Foden to transfer the property to Mrs Foden, I am confident that District Judge Moon will take appropriate action. I also order that a copy of this transcript should be given to Mrs Foden.
21. That, therefore, is the judgment of this court.
22. CLAIMANT: Your Honour, in that judgment --
23. MR JUSTICE GOLDRING: Do sit down, Mrs Foden, do not worry.
24. CLAIMANT: In the judgment, I did not hear any reference to the case law, and also because we broke for lunch, I was coming on to the Proceeds of Crime Act 2002. But apart from that, I did not hear any reference to the case law in that judgment.
25. MR JUSTICE GOLDRING: Mrs Foden, I am afraid that what I put in the judgment is a matter for me. I am fully aware of the case law and had I thought it necessary to refer to it, I would have done.
26. CLAIMANT: Thank you.
27. LITIGATION FRIEND: Sir, just to clarify something, you are going to order a transcript from DJ Moon, and are you --
28. MR JUSTICE GOLDRING: No, I am not ordering that transcript. I am ordering a transcript of what I have said in this application. I am ordering that a copy goes to Mrs Foden. I am ordering that a copy goes to District Judge Moon. I am doing so for the reason that I have explained in the judgment, namely a concern -- and it may be wholly ill-founded because I do not know the detail of the hearing before District Judge Moon -- just a concern to ensure that he was aware of the Court of Appeal judgment in which Mr Foden's interest in the house he was required to transfer to Mrs Foden.
29. LITIGATION FRIEND: So could I take it that you are sort of sending it back to him to ask him to review it?
30. MR JUSTICE GOLDRING: No, I am sending it back to him in the confident knowledge that if on seeing what I have said it becomes apparent that he was not provided with the complete documentation, he will then take the appropriate action.
31. LITIGATION FRIEND: If that is correct --
32. MR JUSTICE GOLDRING: If it turns out that he was not aware of the Court of Appeal's order, he will no doubt take action to ensure that the matter is reopened in the appropriate way. That seems to me the most sensible way of dealing with it, and if I may say so, a very fair way to Mrs Foden.
33. LITIGATION FRIEND: Yes, so will there be a timeline on that sort of issue?
34. MR JUSTICE GOLDRING: You mean the preparing of the transcript?
35. LITIGATION FRIEND: Even for District Judge Moon to reply.
36. MR JUSTICE GOLDRING: I am confident that -- I will request that an acknowledgment of receipt of the transcript of my judgment at the Plymouth County Court be sent to me just so that I know that the district judge received it.
37. CLAIMANT: Your Honour, one thing in your judgment that I was listening to with regard to District Judge Moon's order of 13 April 05, it is just a bit confusing, the order says "applicant, 55 per cent", and second respondent -- the applicant in actual fact was RD Smailes, whereas you said Mrs Foden.
38. MR JUSTICE GOLDRING: I do not think I did. I said RD Smailes, who is effectively now you.
39. CLAIMANT: I realise that side of it. It is just a bit confusing.
40. MR JUSTICE GOLDRING: Mrs Foden, if it was confusing, I shall correct the judgment. If it is not clear, I shall make it clear, but it is perfectly clear to me what the position is.
41. LITIGATION FRIEND: So we will get a transcript of today's judgment?
42. MR JUSTICE GOLDRING: You will.
43. CLAIMANT: Just one other point, your Honour. I am confused, and if you could just bear with me, when you say about the past things that I have taken on appeals, but it is our right to take appeals.
44. MR JUSTICE GOLDRING: Mrs Foden, forgive me, I have been very patient and I really have tried to give you a fair hearing, and there comes a limit.
45. CLAIMANT: I am sorry. There is so many times I have been told you should have asked at the end of the judgment.
46. MR JUSTICE GOLDRING: If you are asking me whether you can have permission to appeal my ruling, the answer is that an appeal does not lie from my ruling. So the answer is no. There is no right of appeal of a section 42 ruling.
47. LITIGATION FRIEND: Could you point me, if I am wrong, could you point me to where in the law fraud does not overrule a section 42?
48. MR JUSTICE GOLDRING: I have given my judgment now. If you want to know where there is a reference to the question of appeal, just so that you know it in section 42, it is in Volume 2 of the White Book at page 2313. That deals with the topic of the right or the absence of a right of appeal from a ruling such as that which I have just made.
49. CLAIMANT: But, your Honour, in the 42, the Supreme Court Act, there is no mention of fraud with the 42, nothing at all.
50. MR JUSTICE GOLDRING: We have come to the end.
51. LITIGATION FRIEND: We will wait.
52. MR JUSTICE GOLDRING: Thank you very much.