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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ashcroft & Anor v Webster [2017] EWHC 887 (Ch) (21 April 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/887.html Cite as: [2017] EWHC 887 (Ch) |
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CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
2 Redcliff Street, Bristol BS1 6GR |
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B e f o r e :
sitting as a judge of the High Court
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Alison Virginia Ashcroft John Francis Penley |
Claimants |
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- and - |
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Rupert Jolyon St John Webster |
Defendant |
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The Defendant in person
Hearing date: 21 March 2017
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Crown Copyright ©
HHJ Paul Matthews:
Introduction
The context in which the earlier extended civil restraint order was made by HHJ McCahill QC is one of complex family dealings in property followed by a number of pieces of litigation involving the same or similar parties. In order to make this judgment intelligible, I will shortly say something of the family and its members, and the property dealings, and then something about the litigation. Fuller details are set out in the judgment of HHJ Purle QC of 22 May 2013, [2013] EWHC 1316 (Ch). In this judgment I shall mostly use Christian names to distinguish the various members of the Webster family. I intend no disrespect to any of them in doing so.
Background facts
The original claim
"23. … In my judgment, no representation or promise to the effect suggested by Rupert was ever made. Nor, if I am wrong about that, was there detrimental reliance."
"28. … What did emerge very clearly from the evidence, however, was the fact that Valentine held the strong conviction that as the eldest son he was entitled at least morally to control and (ultimately) inherit The Priory as his birthright. That conviction was not, however, shared by other family members, and Valentine knew this. During the course of the tax planning exercise undertaken in 1992, Valentine's conviction was expressly rejected by Valerie at a family meeting in the presence of solicitors (fully minuted) on 25 February 1992. Notably, Valentine did not rely upon any representation or promise at this stage, only a conviction of his prior entitlement as the first born son.
29. That said, there is little doubt that the hope was expressed from time to time, in different ways, especially by Valerie, that Valentine might inherit or live at Ash Priors, or the farmhouse. But there was nothing amounting to a commitment to ensure that any part of Ash Priors, or the farmhouse, or the two fields, would become his. Moreover, after the 1992 tax planning exercise, Mr Penley was very much against the taking any step that might imperil the tax efficiency of the structure he had helped to put in place, and his advice was heeded."
Further litigation
The first extended Civil Restraint Order
Events after the first ECRO
"for the Claimant's family's rights as expressed through claims HC 09C01570, A320132303, HC 14B01306, 07 & 09, A00TA241, B30BS071, B30BS107, A320151181 ("the claims"); the Protection from Eviction Act 1977; the Inheritance Act 1977; sections 12 to 15 of the Trusts of Land and Appointment of Trustees Act 1996; and instructions given trustees that have been informally exercised for over 20 years such that now the first registration of the family home includes the Claimant under the Land Registration Act 2002 ("the Acts"); without application of which are alleged violations of Articles 8, 14 and Protocol 1 Article 1 of the European Convention ("the articles")."
"the ECRO against me ought to be brought to an end without delay. I have already served my time."
Whether an application to set aside a statutory demand falls within the scope of the first ECRO is a matter which was not argued before me at the hearing. However, for reasons which will become apparent, I do not need to resolve this question now, or to take this matter into account in reaching my decision on the continuation of the order, and accordingly I have not done so.
The relevant law
(a) from making any further applications in current proceedings (a limited civil restraint order);
(b) from issuing certain claims or making certain applications in specified courts (an extended civil restraint order); or
(c) from issuing any claim or making any application in specified courts (a general civil restraint order)."
Rule 3.11 provides:
"A practice direction may set out –
(a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;
(b) the procedure where a party applies for a civil restraint order against another party; and
(c) the consequences of making a civil restraint order."
Practice Direction 3C to Part 3 of the CPR in paragraph 3.10 provides:
"The court may extend the duration of an extended civil restraint order, if it considers it appropriate to do so, but it must not be extended for a period greater than 2 years on any given occasion."
"58. As explained by the Court of Appeal in the leading case of Bhamjee v Forsdick [2004] 1 WLR 88, the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or no cost to themselves. Typically such litigants have time on their hands and no means of paying any costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court's resources.
59. It is important to note that a civil restraint order does not prohibit access to the courts. It merely requires a person who has repeatedly made wholly unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed. The purpose of a civil restraint order is simply to protect the court's process from abuse, and not to shut out claims or applications which are properly arguable."
"23. I think in the context of a proposal to extend the civil restraint order, at the expiry of the period of two years, what the court would need to focus on particularly is evidence which suggests that there is good reason to apprehend vexatiousness and, in particular, persistent vexatiousness, for the future. That might be demonstrated by conduct or by threats, perhaps, but there must be, I would have thought, a reasonable apprehension that vexatious applications or claims will be made once the period expires or, in this case, when the undertaking expires following the court's ruling. That must be evidence based and, as I have indicated, the evidence relied upon here is that to be found in paragraphs 5 to 12 or Mr Demery's witness statement.
24. I have no doubt that the Society of Lloyd's and its representatives have a genuine apprehension or concern that trouble might break out, if I could put it that way, once the protection of the ECRO is removed. That is based on their past experience and on the background of vexatiousness in the past, all those matters which were taken into account by Steel J when he made the order in November 2007.
25. But their apprehension, based on the past, does not seem to me necessarily to make it appropriate to grant an extension of the order at this juncture. There must be something more solid in my judgment. The mere request for documents and information on 2 November would not justify such an apprehension. The mere negative failure to comply with the request for an assurance as to the future does not amount to a threat or solid grounds for an apprehension or fear as to the future.
26. It is said to be irrational on Mrs Noel's part that she turned down the offer that was made to her in November, which was that the outstanding costs order of £16,000 would not be enforced if she were to give such an undertaking. That was such a carrot, it is suggested, that she must have in mind an intention to make further applications or to launch further claims of a vexatious nature.
27. I think that is to infer too much from her limited conduct so far and I feel in all the circumstances, therefore, that the criteria have not been fulfilled to date. I would add, however, if evidence emerges in the future, in particular the near future, that there is an intention to make any vexatious claim, or an application launched, then the matter will be reviewed in the light of that further evidence."
"10. It seems to me that it would be necessary in such circumstances for Lloyd's to demonstrate why it is now appropriate for a fresh order to be made. There cannot simply be a presumption of continuance. There must be evidence that the criteria are once again fulfilled. Of course, the background is important as background and the degree of persistence, in particular, prior to the original order being made would, no doubt, be a highly relevant factor. So too would the conduct of the relevant person after, the order was made; the extent, for example, to which he/she had sought to get round the order or made unmeritorious applications during its subsistence."
"7. (2)… Secondly, the threshold requirements in PD 3C 4.1 needs to be satisfied before a GCRO is made. But the test for the grant of an extension is different: it is whether the court "considers it appropriate". This plainly makes sense, as a person who has already been subject to a GCRO will in principle have had no opportunity to issue any TWM claim or application, other than an application for permission to proceed, or to vary or discharge the GCRO.
[ … ]
(4). Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime."
Submissions
Discussion
"13. [ … ] My financial position is that legal insurers paid out their entire indemnity fund of £100,000 to solicitors. I then found myself evicted, I say unlawfully and possibly fraud. Local Police told me it was a civil matter requiring a court process, and so I paid out funds to solicitors and barristers to protect my (and my mother's) home and property. Having now forfeited my house, and office, and my small agricultural business, I cannot afford to pay more money to court."
In addition, his marriage has broken down. Sadly, he has nothing more to lose.
Conclusion