Mahajan v Waldman & Ors

Wednesday, 10th December 2003

J U D G M E N T

1. LORD JUSTICE BROOKE: Two matters have been listed before us today and there is a third in the wings. The first is an appeal by Mr Mahajan against an order made by Deputy Master Joseph on 16th July 2003 to the effect that, unless Mr Mahajan filed a bundle of documents which conformed with the requirements of the Practice Direction at Part 52 of the CPR within 21 days, his application for permission to appeal against an order made by Patten J on 9th June 2003 (which I will call "the Patten order") would stand dismissed. The second is an application by Mr Mahajan for permission to appeal against an order made by Rimer J on 4th September 2003 (which I will call "the Rimer order"). The matter in the wings is a substantive application for permission to appeal against the Patten order.

2. These matters all arise out of the same action in the Chancery Division. It is necessary, first, to say a little bit about the background history to this litigation and to set out matters of fact, though I know that Mr Mahajan is concerned that injustice has been done to him at different stages of the history.

3. Mr Mahajan was employed as an accountant and book-keeper by Pearlion Associates GB Ltd in January 1996. In November 1997 that company was taken over by a company called Pearlion (Overseas) Trading Ltd. On 7th January 1998 he was dismissed. The Waldman family owned both Pearlion companies and also a company called Sibell Associates Ltd (which I will call "Sibell"), which also features in the history. Mrs Waldman, the first defendant in the present proceedings, was a director of these companies.

4. Mr Mahajan made an application to an Employment Tribunal complaining of unfair dismissal and racial discrimination. His application was dismissed after a four-day hearing. He then appealed to the Employment Appeal Tribunal and his appeal was dismissed on 19th June 2000.

5. He also issued proceedings in the Willesden County Court against Mrs Waldman and Sibell claiming unpaid wages or fees. His action was dismissed by Judge Ryland sitting in the Central London County Court on 8th December 1999 following a two-day trial. On 25th July 2000 Tuckey and Jonathan-Parker LJJ refused to order a transcript of the evidence and of the judgment at public expense. They also refused permission to appeal. Tuckey LJ said that the judge had made findings of fact based on his view of the credibility of the witnesses and there were very few contemporaneous documents. Mr Mahajan had complained to the Court of Appeal about the conduct of Mrs Waldman's lawyers, the court staff and the judge himself in the county court proceedings. Tuckey LJ said he could see nothing in the mass of material before the court which justified these complaints or undermined in any way the judge's conclusions on the merits of the applicant's case. He said that the time had come for Mr Mahajan, for his own sake and the sake of his family, to put this dispute with Mrs Waldman and her companies behind him.

6. The final costs certificate issued in favour of the defendants in these proceedings was for a sum in excess of £51,000. On 4th December 2000 their solicitors served a statutory demand for this sum. On 13th January 2001 Mr Registrar Baister refused to set this demand aside.

7. A bankruptcy petition was presented on 23rd January 2001, and on 12th April 2001 Mr Mahajan was adjudged bankrupt at a hearing which he did not attend. Mr Mahajan is still adamant that what happened to him was fraudulent, and he has shown us an application that he has issued today in relation to his complaints about that bankruptcy order.

8. On 12th July 2002 Mr Mahajan applied for directions that the bankruptcy order be set aside. He also sought permission to issue proceedings against Mrs Waldman and other defendants alleging fraud and conspiracy. On 23rd July 2002 Neuberger J, in a 15-page reasoned judgment, refused both these applications. As to the latter he said that Mr Mahajan's proceedings disclosed no evidence to support his allegations of dishonesty.

9. On 29th November 2002 Aldous and Scott Baker LJJ dismissed an application by Mr Mahajan for a transcript of the proceedings before Neuberger J to be supplied at public expense. They were willing to consider fresh evidence, but they then went on to dismiss his application for permission to appeal Neuberger J's judgment. In his judgment, Aldous LJ recited a number of the complaints which Mr Mahajan had made about his treatment by the courts. He had alleged that Judge Ryland's judgment had been secretly influenced by Rabbis; he alleged that in July 2002 the Court of Appeal had been too ready to accept the judgment of other courts; he alleged a conspiracy to pervert the course of justice perpetrated by bankruptcy registrars; and he alleged that Neuberger J's order had been made fraudulently and in breach of his human rights. In summary he complained that there was clear evidence of corruption inherent in the judiciary and the legal system. Rejecting these complaints, Aldous LJ, in a judgment with which Scott Baker LJ agreed, said that Neuberger J's judgment was clear and reasoned, and it could not be faulted. Permission to appeal was refused.

10. Mr Mahajan, who by now, of course, was an undischarged bankrupt, next issued proceedings alleging fraud and conspiracy against Mrs Waldman and seven other parties. On 7th April 2003 Deputy Master Lloyd struck the action out. He said that the relief claimed in this action was identical to the relief claimed by Mr Mahajan in the proceedings which Neuberger J, later supported by the Court of Appeal, had refused to permit.

11. Mr Mahajan then sought permission to appeal the Deputy Master's order. On 15th May Patten J refused Mr Mahajan's application for the hearing of his application for permission to appeal to be conducted by the Master of the Rolls with a full bench of the Court of Appeal. He also refused Mr Mahajan's applications for access to the court tapes and the complete notes of the hearing on 7th April 2003.

12. Mr Mahajan then applied for orders for a copy of the transcript of the hearing on 7th April to be supplied to him at public expense and for the court manager to reply to certain queries made by Mr Mahajan, particularly, but not exclusively, relating to the circumstances in which the Deputy Master heard the proceedings in April. On 9th June 2003 Patten J dismissed this application. Mr Mahajan sought permission to appeal Patten J's order.

13. It was against this background that Deputy Master Joseph made the first order which is under appeal today. Mr Mahajan failed to file the required bundle within the time allowed by the Deputy Master. Therefore, subject to the outcome of this appeal, his appeal against the Patten order stands struck out.

14. I will refer to the Rimer order before I turn to that appeal. I have referred to it as an appeal; in form it is a review of the decision of Deputy Master Joseph pursuant to CPR 52.16(5).

15. Mr Mahajan's application for permission to appeal Deputy Master Lloyd's order was listed to be heard in the second week of September with a time marking of 30 minutes. Rimer J directed that this oral hearing be adjourned to be heard on a date to be fixed not before 1st October with a time estimate of one day. He refused to make an order directing the Court Service to pay Mr Mahajan's costs on the grounds that he had no jurisdiction to make such an order and that there was no reason why it should be made. He directed that Mr Mahajan need not serve any of his 20 volumes of documents on any of the defendants for the purposes of the application for permission to appeal. He also ordered that a transcript of his judgment, but not of the proceeding before him, be provided at public expense. Mr Mahajan now seeks permission to appeal against that order.

16. When Mr Mahajan filed his Appellant's Notice in June he filed with it a statement to which he exhibited two documents containing a certain amount of correspondence and copies of orders together with a copy of Patten J's order which he sought to challenge. He expressed a wish for his appeal to be heard urgently, if possible on 27th June when he was attending the Court of Appeal for another hearing. The problem he ran up against was the contention by the Civil Appeals Office that he had not complied with paragraph 5.6 of the Practice Direction to CPR Part 52, which lists the documents which must be filed in an Appellant's Notice in every case. On 19th June he was sent a standard form letter from the Civil Appeals Office together with a leaflet explaining what he had to do. In response, he maintained that the documents on which he wished to rely were appended to his Appellant's Notice, that he had filed other relevant documents and he had no other relevant documents to file.

17. On 23rd June he was told by the Office that the matter would not be listed because neither the skeleton argument nor the bundle had been submitted.

18. There followed an unhappy exchange of correspondence, first with the case manager and then with the court manager, in which Mr Mahajan indulged in a tirade of abuse, contending that he had done all that could be reasonably expected of him, while the Office continued to require him to comply with the provisions of the Practice Direction before the matter could proceed. On 25th June, for instance, he was told he should file an indexed and paginated bundle containing, as a minimum, the Appellant's Notice, the sealed order of the court below, a transcript of Patten J's judgment, the originating claim form, particulars of claim, the sealed order and judgment of the Master and the Appellant's Notice appealing the Master's order to Patten J. Mr Mahajan's very rude letter in response was to the effect that he had filed everything he needed to file and that a number of the requested documents were not relevant at that stage.

19. Eventually, because Mr Mahajan still declined to comply with the Office's requests, the matter was placed in Deputy Master Joseph's dismissal list. Although given notice of the hearing, Mr Mahajan did not attend. On 16th July 2003 Deputy Master Joseph made the order to which I have referred in paragraph 1 of this judgment. He also said that he wished to draw to the attention of the judges of the court certain racially offensive material which Mr Mahajan had included in his correspondence with the staff of the court. This, as I have said, is the review requested by Mr Mahajan of that order.

20. There are four grounds of appeal:

(1) the order was wholly unreasonable because it was a favour by the Deputy Master to the Case Manager and was designed to obstruct justice and to hide the culpable behaviour of certain judges;

(2) he was being denied a fair trial, contrary to articles of the European Convention on Human Rights;

(3) the demands and behaviour of court staff were wholly unreasonable and were designed to protect the Jewish respondents; and

(4) the order was an example of institutionalised racism and corruption.

21. In my judgment Mr Mahajan does not assist the conduct of the litigation in which he is involved by descending to abuse of members of the court staff who are carrying out their duties. The court staff in the Civil Appeals Office have a difficult job to do, particularly in correspondence with litigants in person who may not be familiar with the requirements of the Practice Direction or the purpose behind the requirements of the Practice Direction. In my judgment the case manager in question was wholly justified in the minimum demands that he made. It was clearly of relevance that any court handling this matter should have access to the statement of case (which meant, because no defence had been filed, the particulars of claim) which were before Deputy Master Lloyd and which contained the subject matter of the action. Mr Mahajan accepts that he did not file it. He says that in his opinion it was not relevant. It is not for a litigant to determine what is relevant and what is not relevant if a request is made by the court. If he does not comply and the matter is then listed in a dismissal list, then he will have an opportunity to make submissions, either to the Master of the Civil Appeals Office or one of the Deputy Masters who are conducting the list, explaining why he considers that he is not in default.

22. Mr Mahajan did not attend before Deputy Master Joseph. He has explained that he was not well at the time, that he had many other things to do and that he had limited means. However that may be, the practice of the court provides a litigant with the opportunity of making the kind of points Mr Mahajan sought to make. In my judgment the Deputy Master was wholly justified in making the order that he did make on 16th July. It is a great pity that instead of complying with that order, which would not have been very difficult for Mr Mahajan to do, the Civil Appeals Office was then subjected to a further torrent of abuse directed to Deputy Master Joseph personally.

23. However that may be, I am quite satisfied that Mr Mahajan's complaints about the way that the matter was handled in the Civil Appeals Office are unfounded and it is regrettable that they were ever made. It is very sad that members of the court staff should have been subjected to abuse of the kind which all three members of the court have read in the correspondence. Mr Mahajan suspected there was some kind of conspiracy afoot by which he was transferred from one sub-group to another sub-group. Sadly Mr Mahajan sees conspiracies at every turn. I, for my part, can see no justification in the complaints that he has made. Accordingly, I can see no reason for holding that the order was wholly unreasonable. It was the right order to make given that the appropriate documents had not been filed. The Strasbourg court has always said that a court of justice can regulate its procedures. I have already dealt with the other matters of which Mr Mahajan complains in his grounds of appeal.

24. Although I would uphold the Deputy Master's order, in theory it would always be open to this court to extend time for compliance with it. As Mr Tolley (who has assisted this court in his capacity as Advocate to the Court) has observed, we now have the documents in a convenient bundle which Mr Mahajan had declined to file. Accordingly, it is important that the court should consider the merits of that appeal to see whether, given that the documents have now been filed, there is any reason why we should not extend the order for compliance with Deputy Master Joseph's order by a further five months.

25. What was being sought before Patten J? There were seven types of relief sought. Mr Mahajan, in a document that he has put before us today, has conveniently identified them all, and he accepts that three of them can now be treated as water under the bridge: with the passage of time they have been overtaken by events.

26. The first of the remaining items is a copy of the transcript of the tape of the hearing on 7th April 2003 be provided to him at public expense. This, as I observed to Mr Mahajan during the course of the hearing, is a request that litigants in person often make without appreciating that the matter that the appeal court has to consider is the rightness or wrongness of the decision in the lower court. In effect the issue which would have to be determined on appeal from Deputy Master Lloyd was, first, whether the Deputy Master was correct in holding that the proceedings were a mirror image of the proceedings already not allowed to proceed by Neuberger J for which permission to appeal to this court had been refused last year and/or, secondly, that Mr Mahajan, although an undischarged bankrupt, should be at liberty to bring these proceeding as they were not vested in the trustee in bankruptcy. Those are issues of law which the High Court judge hearing the appeal can consider on the material already before the court. He will not need a transcript of the proceedings before Deputy Master Lloyd to assist him.

27. Mr Mahajan in his written submissions makes a number of general allegations, which I will not go into, in which he is contending that it would be important for the High Court judge to read the proceedings which took place before the Deputy Master. He contends that there was some kind of conspiracy between the Deputy Master and counsel who appeared in front of him, and he asserted (despite it being a far-fetched contention) that because they practise from different chambers in New Square, Lincoln's Inn this was some kind of conspiracy. Mr Tolley has helpfully observed that if the judge hearing the application for permission to appeal thought that there was a substantive complaint which should be gone into, namely that there had been a serious procedural or other irregularity in the proceedings in the lower court rendering the hearing unjust, then he might want to have a transcript of the proceedings.

28. In my judgment Patten J was wholly entitled to refuse to order a transcript at the stage at which it was sought and to disregard the complaints of the type that Mr Mahajan was making to him. This was essentially a matter for his discretion, and it is well known that this court will not interfere with the discretion of a lower court judge unless it goes well outside the wide ambit of the discretion that he is given.

29. Secondly, Mr Mahajan seeks permission to appeal to this court from Patten J's refusal to require the court manager to answer queries posed by Mr Mahajan relating to the circumstances in which the Deputy Master had sat as a Deputy Master. In my judgment that had nothing to do with the issue to be determined on the application for permission to appeal, which went to the merits of the order. It was inappropriate for the court manager to be interrogated; indeed there is no procedure for such interrogation set out in the CPR.

30. The final substantive matter of which he makes complaint is as a matter of form out of time, because it relates to the order of Patten J made on 15th May. It is not referred to as such in the Appellant's Notice, which refers only to the order of 9th June. However that may be, it seems to me that the contention that this court should entertain an appeal against Patten J's refusal to direct this application for permission to appeal to be sent to the Court of Appeal for decision is a hopeless one. Mr Tolley observed to us that whereas an appeal may be transferred to this court, thereby leap-frogging a lower appeal court, there is no jurisdiction at all to transfer an application for permission to appeal to this court. Accordingly, Patten J had no jurisdiction, and was correct in saying he had no jurisdiction, to make such an order.

31. Mr Mahajan during the course of argument today has said that what he was seeking, first from Patten J and then by way of an appeal against Patten J's order, was a direction from the Master of the Rolls himself under section 57 of the Access to Justice Act. That suggestion runs into the same difficulty that the Master of the Rolls was given no power by Parliament by which to transfer an application for permission to appeal to this court. Only a matter for which permission to appeal has been granted may be transferred.

32. The final complaint against Patten J's order related to costs. Mr Mahajan, I think, accepts that costs would follow the event, and there is no substantive issue as to costs if he fails on all the other matters.

33. For these reasons, I see no substance in the complaints Mr Mahajan makes against Patten J's order. I therefore see no reason to extend time for complying with Master Joseph's order.

34. I turn then to the application for permission to appeal Rimer J's order. There were seven proposed grounds of appeal. The first was that Rimer J's order did not comply with Mr Mahajan's request. He had asked for the hearing not to be listed until the Court of Appeal had determined his application in relation to the Patten order. Instead Rimer J adjourned the hearing until any time after 1st October 2003. Secondly, Rimer J had failed to consider that his pending application to the Court of Appeal had been sabotaged by a case manager in the Civil Appeals Office. Thirdly, Rimer J failed to consider that as a result of his order Mr Mahajan continued to be harassed by court staff and this would have a detrimental effect on the success of his pending appeal. Fourth, it would have been proper for Rimer J to express opinions on Mr Mahajan's other applications, and this conduct, prompted by a desire to mask the unlawful behaviour of the respondents and judiciary, has resulted in a bias against Mr Mahajan for future hearings. Fifthly, Rimer J failed to consider the extreme hostility and bias of court staff and members of the judiciary towards Mr Mahajan. If he had duly considered these issues he would have ordered the listing of the matter before the Master of the Rolls. Sixth, Rimer J's findings were inconsistent with Mr Mahajan's witness statement. Seventh, Rimer J failed to order the costs of the application to be paid by the Court Service, thereby demonstrating bias towards the court staff, and disregarding evidence in breach of certain provisions of the European Convention on Human Rights.

35. To some extent Mr Mahajan made no complaint about Rimer J's order. He was pleased that the case had been adjourned, he was pleased that the case now had a time estimate for a day, and he was pleased that he did not have to serve any of his 20 volumes of documents on any of the defendants for the time being. And he has not pursued an application for a transcript of the proceedings before Rimer J, so far as I am aware. To a great extent his complaint about the way Rimer J exercised his discretion to direct that the hearing take place on a date to be fixed not before 1st October has been overtaken by events, because this court is now dealing with Mr Mahajan's applications to this court and the Chancery proceedings have not yet been listed. So the substantive complaints that Mr Mahajan makes, so far as Rimer J's order is concerned, are that Rimer J did not direct that special arrangements should be made for the hearing of this application for permission to appeal, which would not entail a judge being identified for the first time the day before the trial. He was also concerned that Rimer J failed to make an order directing either costs or for damages against the court staff.

36. So far as the first matter is concerned, there can be no prospect of success whatsoever of Mr Mahajan successfully appealing against an order which directed that this matter should be handled, like all other matters in the Chancery Division, in the usual way. Mr Mahajan has made a number of allegations against court staff and judges at every stage of this saga; but I see no reason at all, given the type of allegation he makes, why the handling of his matter should not be treated in the usual way in the Chancery Division. No doubt the fact that it is a substantial matter will be taken into account by those who are dealing with the listing. I see no prospect of success of an appeal against that.

37. So far as the proposed appeal in relation to the costs order is concerned, Rimer J said that he did not consider that he had any jurisdiction to make such an order and even if he had he would not have made it. In paragraph 16 of his judgment he refused to make an order for damages against the clerk to the court on the ground of unlawful harassment. He said there was no possible basis for making such an order on this application, quite apart from the fact that Mr Mahajan did not make good his allegations of being subjected to such harassment. Similarly, he refused to make an order against the costs to be borne by the Court Service. He said, quite rightly, that he had no jurisdiction to make such an order. In any event, he said that there was nothing in the papers before him which suggested that the Court Service had acted in such a way as to merit the order requiring it to bear the costs of Mr Mahajan's application.

38. Mr Mahajan is concerned that there is a conspiracy between the clerks in the Chancery Division and Bar clerks to arrange hearings in relation to these proceedings to his detriment. Unhappily he sees conspiracy at every turn. But in my judgment there is no real prospect of success in appealing Rimer J's order. Mr Mahajan was good enough to say that Rimer J had handled the matter in a fair way. It was very much a matter within his discretion, even if he had jurisdiction to make the orders which Mr Mahajan sought for damages and costs, which he clearly did not.

39. For all these reasons, I would dismiss these applications.

40. LORD JUSTICE SEDLEY: I agree.

41. LORD JUSTICE LATHAM: I also agree.

Order: Applications dismissed. Order as per minute of order.