Case No: A3/2009/0133

Neutral Citation Number: [2009] EWCA Civ 1132
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HIS HONOUR JUDGE PELLING)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 15th October 2009

Before:

LORD JUSTICE LLOYD
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Between:

	Miller-Foulds	
Applicant	
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Secretary of state for Justice	

Respondent	

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(DAR Transcript of 
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Mr C Wolman (instructed by the Bar Pro Bono Unit) appeared on behalf of the Applicant.

The Respondent did not appear and was not represented.

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Judgment

(As Approved)

Crown Copyright©
Lord Justice Lloyd:

1.	This is the oral renewal of an application for permission to appeal on the part of Mrs Miller-Foulds in proceedings brought against the Secretary of State for Justice or, as he once was, the Secretary of State for Constitutional Affairs.  This is a matter which came to trial before HHJ Pelling sitting in the Chancery Division, and he gave judgment on 20 November 2008.  I think it is not in dispute that possession proceedings were brought against Mrs Miller-Foulds in the Brentford County Court by Abbey National, as it then was, in 1990.  She has a mortgage loan from Abbey, and Abbey contended that she was in arrears under the mortgage.  It is said, Abbey certainly contends, that a possession order was made in that court by a district judge on 5 November 1991, suspended on terms as to payment, and that that order records that there were certain arrears as at that date in a quite significant four-figure sum.  Mrs Miller-Foulds contends that there is no proper sealed order and either that no such order was made or, at the very least, that there is no admissible evidence that any such order was made and that Abbey therefore cannot enforce it.  

2.	There have been various proceedings since then on the footing of such an order.  A warrant for possession was issued in 1992, which was vacated on payment.  Something of that kind happened again in 1995, although I am not sure I have all the details and then again in 2002, Abbey contended that there had been a breach of the conditions of the suspension and they applied to enforce.  In the County Court in April 2004, Mrs Miller-Foulds appealed against a decision of a district judge in Brentford, which is recorded by HHJ Pelling in paragraph 19 of his judgment in the following terms:

“…there was a hearing before the district judge at Brentford in which the judge held that the claimant could not go behind the arrears recorded in the 1991 order.”

3.	She appealed against that.  The appeal seems to have been heard by HHJ Edwards in July 2004.  He set aside the district judge’s order and ordered that an account be taken of the arrears that had accumulated.  He suspended the warrant for possession and directed that any application for permission to appeal be made.  It was made and it was dismissed.  There was no contention at that stage that no order had ever been made in 1991, although it was said by the claimant that she had not been aware that such an order had been made.  

4.	Then HHJ Pelling records that Mrs Miller-Foulds sought again to challenge the arrears recorded in the 1991 order.  That came for a further hearing before HHJ Edwards where he rejected that point and concluded that the starting point for taking the account that he had ordered was the arrears recorded in the 1991 order, which was res judicata.  

5.	There was an appeal against that to Langley J in the Queen’s Bench Division, and HHJ Pelling quotes a number of paragraphs from that judgment.  Then there was a further appeal to the Court of Appeal and HHJ Pelling records a number of paragraphs from the leading judgment of Carnwath LJ and the judgment of Moore-Bick LJ.
6.	Those proceedings appear, from what the judge says, to have been on the footing that the order could not be attacked and that it was binding as to the amount of the arrears.  So if there was at that stage material for contending that the order had not been made at all or that it could not properly be proved in a way that was admissible, it does seem to me that those proceedings would have been highly relevant to those proceedings.  However, the point was not taken and Mr Wolman, who appears today, as he appeared in those proceedings for Mrs Miller-Foulds, tells me that in the course of that appeal there was reference to the fact that there was new evidence, or what was described as new evidence, which had not been tested and that the Court of Appeal said that they could not take that into account because it had not been tested.  

7.	So these proceedings are, I think, the next stage in the history and they were started in the Chancery Division.  I am not quite sure whether I have seen the claim form but I have seen the Particulars of Claim, not with a date.  But they were started in 2007, as I think I can tell from the number, and they were brought, as I have mentioned, against the Government (that is, the Secretary of State) not against Abbey National, which is not a party.  Mr Wolman tells me, and I have no doubt that this is true, that Abbey National was informed of the proceedings and was asked if it wished to be joined.  It did not ask to be joined.  But it is not a party to the proceedings and it is therefore not bound by the outcome of the proceedings.

8.	HHJ Pelling records that shortly before the trial was due to start the defendant issued an application to strike out the proceedings on the ground that they were an abuse of process.  The judge quite rightly said it was not appropriate to deal with that at that stage as a preliminary matter on the eve of the trial, so what might have happened if that application had been made at the outset of the proceedings is a moot point.  

9.	The judge heard the case over three days, 14, 17 and 18 November, and gave judgment on 20 November.  He heard evidence from the claimant.  He heard evidence from the court manager at the Brentford County Court on a witness summons from the claimant.  He had statements from the claimant’s former counsel and the claimant’s solicitor, and the defendant called as witnesses a solicitor who had conduct for Abbey at the Brentford proceedings and two court service staff.  

10.	The judge recorded the history of the matter from 1990 or earlier through to the proceedings in the Court of Appeal that I have mentioned.  He said an issue had arisen before him whether the points now relied on were at all available in the light of what the Court of Appeal said and he decided not to rule that out on that ground but to grasp (a) the merits and (b) the quite separate point as regards the propriety of the proceedings taken by the defendant.

11.	He then looked at the fact that there is no original sealed order extant or at any rate available to the court.  Abbey have apparently lost the copy that presumably they originally had and the court no longer has such a copy.  He refers to a copy order, which he says he is satisfied is in fact a copy of the sealed order sent to either the claimant or the defendant shortly after the hearing.  He dealt with a number of factual issues in respect of that.  He dealt with evidence as to the practice of the county court in terms of its records.  He dealt with a submission on behalf of the claimant that secondary evidence of a court order is not admissible, at any rate to support a claim for estoppel by record, and he rejected that proposition.  He referred to two cases from the 1820s and interpreted them as clear authority for the proposition that secondary evidence is admissible.  He held that it was admissible and that, having permitted it, he was satisfied that some order had been made in the terms of the copy that was before him.  He then said this at paragraph 36:

“I now return to the relief sought in these proceedings.  I have very great doubt as to the utility of the declarations sought for the purpose they have been sought.  Not merely would the declarations not be binding on Abbey if granted but, in any event, there is ample secondary evidence from which the existence and terms of the 1991 order could be proved.  Thus the exercise with which I am concerned is entirely pointless and, as such, in my judgment, is an abuse of process and one which the court should not embark on.”

12.	Then, at paragraph 37, he goes on to explain why he is satisfied that the court records were properly kept, that the copy order is a copy of the original sealed order and that he concluded that the proceedings were factually and legally misconceived and abusive.  He then referred to certain procedural matters arising and he then refused permission to appeal.  Mr Wolman on behalf of Mrs Miller-Foulds, in grounds of appeal and in a statement under the Practice Direction, has sought to address on the one hand the judge’s reasons and on the other hand Rimer LJ’s reasons for refusing permission on paper on 3 July, which were that the judge was right to regard the proceedings as an abuse of process and as pointless and that there was no reasonable prospect of a successful challenge to the judge’s conclusions of fact and ruling on the substance of the issues.  

13.	Mr Wolman explained to me the dilemma that Mrs Miller-Foulds felt herself to be in.  Her concern, as I understand it, is not so much as to whether there was or was not a possession order in 1991 but as to the amount of arrears identified in the order on which judgment was given but of course suspended on terms.  She contends that it was her belief that, if there were any arrears, it was a much smaller sum and that there was to be a hearing eventually in 1995 at which the true amount of the arrears would be decided and a proper account taken under the mortgage.  She contends that if the arrears, if any, as at 1991 had been correctly stated, then her position under the mortgage now (because it is still outstanding and she is still in the mortgaged property) would be a great deal less onerous than Abbey contends that it is.  So the issue is really as to the state of the mortgage account, not so much whether there was a mortgage possession order in 1991.  That, it seems to me, is entirely understandable and realistic.  On the other hand it is not a point that can be addressed by proceedings against the Ministry of Justice.  As to why Abbey National were not joined in these proceedings, Mr Wolman explains candidly that Mrs Miller-Foulds faced, on the one hand, of course the hope that she would win the case and would get her costs but the risk that she might not win the case, in which case if the only defendant was the Department (a) their costs would be likely to be less onerous than those of a commercial lender such as Abbey and (b) they might not in fact seek to enforce costs anyway whereas if the proceedings were brought against Abbey with or without the Ministry as well, Abbey would be likely to incur greater costs and would certainly seek to recover them even if only by adding them to the security and therefore to the amount which she would have to cope with if she wished to stay in the property and indeed a certain risk, although subject to any order of the court, that even if Abbey lost they would add their costs to the security.  That particular risk is perhaps not the most serious because I find it difficult to suppose that the court would not make an order qualifying, overriding, the right to recover costs as a matter of contract in that event.  But that risk was one of those that was faced and for those reasons it was decided to proceed against the Department and not against Abbey.  So be it.

14.	But the fact remains that Abbey is the real defendant to these proceedings and is the party with which Mrs Miller-Foulds is really concerned.  I have to say that I agree entirely with the judge in what he said about the propriety of bringing these proceedings without having joined Abbey as a party.  It is not sufficient to say that Abbey were made aware of the proceedings or were asked if they wanted to be joined.  If they were to be bound, if the case was to have any useful function, they should have been joined as defendants.  

15.	Mr Wolman says that is too narrow a view for three reasons.  The first is that it is too narrow a view of the court’s practice as regards the granting of declarations.  The test should be whether it would be of utility to grant the declaration and he cited the well known case of Airedale NHS Trust v Bland [1993] AC 789.  That does not seem to me to be a very helpful analogy because there was no other party, not joined in those proceedings, who could sensibly have been joined in the proceedings and been bound by the result.  The prosecution authorities could not have been joined and bound by the result because of the nature of the issue.  

16.	In the present case Abbey was crucially concerned, directly concerned, by the issue and should have been joined.  Mr Wolman draws attention to two other functions of the proceedings.  One is in relation to Mrs Miller-Foulds’ status as a user of the Brentford County Court as a resident of the area.  That seems to me not to give any warrant for proceeding in this case without joining Abbey, whether or not there might have been a judicial review application against the Department in relation to its practice, to which it may well be that Abbey would have been a possibly interested party.  This is not such a case and, although of course a public law claim can in certain circumstances be joined to a properly constituted private law claim, it would be a novel proposition to say that a public law claim can be asserted in proceedings which are not properly constituted by the court proceedings.  

17.	There is also said to be a possible claim for damages for breach of statutory duty on the part of the Department.  I say nothing about the merits of that but it is premature and it certainly does not justify bringing proceedings which directly concern Abbey without joining them.  

18.	I propose to say nothing about the merits of the point.  It seems to me that HHJ Pelling was right in every respect in what he said about the constitution of the proceedings, and I therefore propose to dismiss the application.

Order: Application refused