Bhamjee v Forsdick & Ors

LORD JUSTICE BROOKE: This is an application for permission to appeal for an extension of time within which to appeal an order made by Mr Justice Park on 27 January 2003 in relation to three current actions being brought by Mr Bhamjee. The history of Mr Bhamjee's litigation is connected with the subject matter of the proposed appeal to Mr Justice Park. I will summarise it as quickly as I can. We have the benefit of a big bundle of documents which included previous judgments in a number of earlier matters.

It all started with a decision by a planning inspector in December 1999 when he refused Mr Bhamjee's appeal against a decision of the local authority refusing to allow him to use his rear yard in Upton Road, Forest Gate for car washing, valeting and servicing, carpet upholstery, cleaning and the pumping out of flood water. The inspector took the view that there was clearly no room within the site for vehicles waiting to be worked on or waiting to be collected, and that even a relatively minor increase in the number of vehicles parked in the adjoining streets could produce an unacceptable increase in congestion and an associated threat to highway safety.

On 21 March 2000 Mr Justice Carnwath (as he then was) refused to suspend the inspector's decision and refused various forms of ancillary relief in the context of Mr Bhamjee's appeal against that decision. Mr David Forsdick appeared for the Secretary of State and Mr Reuben Taylor for Newham on that application. On 5 July 2000 Lord Justice Waller refused permission to appeal. He said that there was no basis on which it could be suggested that Mr Bhamjee had any prospect of succeeding on an appeal from the order of Mr Justice Carnwath. That was his first visit to this court.

On 25 October 2000 Mr Justice Scott Baker allowed Mr Bhamjee permission to amend his claim form on the substantive appeal and reserved costs. Mr David Elvin QC appeared for the Crown on that occasion. On 23 January 2001 Mr Justice Sullivan dismissed Mr Bhamjee's appeal against the inspector's decision and ordered him to pay the Secretary of State's costs, which amounted to nearly £10,000. Mr Maurici (of counsel) appeared for the Secretary of State on that occasion. On 29 June 2001 Lord Justice Dyson refused permission to appeal. He said, applying the test whether Mr Bhamjee had any real prospects of succeeding in the matter, that he would unhesitatingly say that that test was not satisfied. That was Mr Bhamjee's second visit to this court.

On 17 March 2000 Newham served an enforcement notice relating to Mr Bhamjee's continued use of the yard, and on 9 August it refused a certificate of lawfulness of use. On 18 May 2001 another planning inspector dismissed his appeal against the enforcement notice and upheld Newham's refusal to grant a certificate. On 9 November 2001 Mr Justice Gibbs refused Mr Bhamjee permission to apply for judicial review of a number of proposed applications, struck out an appeal under Section 195 of the Town and Country Planning Act, refused permission to appeal against the enforcement notice decision and refused Mr Bhamjee permission to take contempt proceedings against barristers involved in that case. On that occasion he ordered Mr Bhamjee to pay costs of £5,000 to the Secretary of State and £1,000 to Newham. Mr Forsdick appeared for the Secretary of State and Mr Walton appeared for Newham. Mr Justice Gibbs made a special order with the purpose of avoiding the attendance of defendants on future applications made by Mr Bhamjee unless the court requested their attendance.

Mr Bhamjee sought permission to appeal against that order on 28 February 2002. Lord Justice Dyson described Mr Bhamjee's appeal against the enforcement notice as hopeless. He found some of his complaints unintelligible. Insofar as he understood the others, he said they were plainly misconceived. He considered that Mr Bhamjee was plainly attempting to re-open issues that were determined in the proceedings which culminated in the decision of Mr Justice Sullivan. He referred to a number of allegations of fraud which he was making against officers of the local council and the allegations made against counsel which were being taken up by the General Council of the Bar. He said that all those complaints had no prospect of success, but they were not before this court at that time. That was Mr Bhamjee's third visit to this court.

In a quite separate matter - where he was making a claim against the Norwich Union Insurance Company - Mr Bhamjee sought permission to appeal against an order made by Mr Justice Turner in the Administrative Court. Mr Justice Turner apparently dismissed his claim in short order. On 22 April 2002 Lord Justice Buxton refused permission to appeal after Mr Bhamjee failed to attend the hearing. Mr Bhamjee then made an application to reinstate his application. Lord Justice Buxton refused that application, Mr Bhamjee again having failed to attend. Lord Justice Buxton said he could see no argument that Mr Bhamjee could address, in any event, were he to attend. That was his fourth visit to this court.

The fifth visit to the court related to an application by Mr Bhamjee for an extension of time to appeal against the order made by Mr Justice Scott Baker reserving the costs. I have already referred to that order. This application was made 17 months out of time. Lord Justice Dyson said that none of Mr Bhamjee's points could possibly amount to a justification for his failure to challenge the order. He was quite satisfied that he had no real prospect of succeeding in challenging the order that costs be reserved.

The sixth visit to this court arose out of a complaint by Mr Bhamjee about one of the local councillors which, on 30 March 2000, Newham's Standards Council rejected. It also failed to provide documents which Mr Bhamjee said would have established the council's perjury in the course of dealing with his application for planning permission. On 3 September 2002 Mr Justice Maurice Kay refused him permission to apply for judicial review on the basis that his application was made out of time. On 18 December 2002 in this court Lord Justice Ward agreed that Mr Bhamjee's application had not been made promptly. He went on to note that Mr Bhamjee had brought private criminal proceedings against the council which were due to be heard on 19 December 2002. He also wished to join the Lord Chancellor as a defendant to the proceedings, complaining about the conduct of Mr Justice Sullivan and Lord Justice Dyson. Lord Justice Ward described his claim for damages for judicial acts as utterly hopeless. At the end of the judgment he said:

I now come to the matters before Mr Justice Park. On 8 October 2002 Mr Bhamjee instituted High Court proceedings in the Chancery Division against the five named barristers who appeared from time to time in the litigation against him and also against the Treasury Solicitor. He made various claims against them for breach of statutory duty, professional negligence and malicious prosecution. He accused one of them of libel, slander and defamation. He accused them of attempting obstruction of justice. He sought an injunction restraining them from opposing and objecting to any development or proposed development which did not exceed 235 sq. metres. He sought an order that there be disclosed for how long a period government departments were obliged to keep public records. He claimed damages for breach of a number of Articles of the European Convention on Human Rights. On 22 October he issued what appeared to be very similar proceedings against the same defendants. This was by way of a Part 8 claim in the Chancery Division. He also threw in, as part of the relief he was claiming, a claim that the Treasury Solicitor be ordered to pay compensation for breaches of the Zambia Independence Order 1964 for making malicious false statements.

The various defendants made applications for an order that these claims be struck out. They pointed out, among other things, that Mr Bhamjee was claiming that the five barrister defendants owed a duty of care to him and that they had breached that duty of care. They relied on the decision of this court in Connolly-Martin v Davis [1999] PNLR 826 as authority for the proposition that barristers did not owe a duty of care to the litigant on the other side. Master Bowman - apparently I think by agreement with Mr Bhamjee - released the strike out applications to Mr Justice Park and they came, in due course, before Mr Justice Park.

There was a further set of litigation, which I will call claim 2183, being a claim against the Secretary of State arising out of the planning dispute. In that case Mr Bhamjee was claiming to set aside a statutory demand that had been issued under the Insolvency Act for the amount claimed in two of the costs orders, damages for negligence for breach of statutory duty. He asserted that the inspector who had dismissed the Section 78 appeal in December 1999 was wrong, and he accused the Treasury Solicitor, with counsel instructed by him, of obtaining orders by fraud and deliberate concealment, mistake or omission.

Master Bowman struck out the claim of his own motion on written representations by Mr Bhamjee. Mr Bhamjee asked the Master to reconsider the matter. At a hearing on 13 January 2003 he refused to vary his order, but he granted Mr Bhamjee permission to appeal. That appeal also came before Mr Justice Park also on 27 January 2003.

In a short judgment Mr Justice Park referred to the claims against the five named barristers and the Treasury Solicitor. He said that essentially the grounds of the applications that the claims should be struck out were that the claims were incomprehensible and that it would be an affront to justice for them to be allowed to continue. Mr Justice Park said:

Mr Bhamjee now seeks permission to appeal quite a long way out of time. Mr Justice Park's order was on 27 January 2003, and Mr Bhamjee did not apply for permission to appeal by filing a notice of appeal until 18 March 2003. In his notice of appeal Mr Bhamjee makes a number of different requests for orders to be made by this court. For instance, he is asking for an order that somebody be found guilty of contempt of court; he is requesting that warrants be issued for the arrest of the defendants to the first action; he is asking for a hearing to be listed at which an injunction can be made against the defendants in relation to his proposition concerning a development not exceeding 235 sq. metres; he is seeking an award of damages against each of the defendants under what he calls the "Contributory Negligence Act 1988"; and, in general, he seeks to establish that there is a reasonable prospect of successfully appealing against Mr Justice Park's order.

Mr Bhamjee has also issued an application notice on 29 April 2003 in which he is seeking to join three representatives of Barlow Lyde & Gilbert and the Legal Services Ombudsman to the proceedings because the solicitors had been in breach of a statutory duty to the court, and because the Legal Services Ombudsman had failed to carry out investigations under Section 22 (7) of the Courts and Legal Services Act.

This court has listened to Mr Bhamjee for about an hour today while he was explaining the nature of his case and the grievances he had about the way the case had been handled in the past. He appeared to me to ignore the basis on which the planning inspectors and the High Court judges had held against him. He returned again and again to points which he had argued unsuccessfully on previous occasions. He was an example of a litigant who will not take no for an answer, will not consider the reasons which have been given in clear language as to why his claims have not been successful, and is willing, not only to seek to re-litigate them again and again and again, but also, to bring what, in my judgment, are completely misconceived claims for damages for negligence and other relief against the lawyers who have been instructed on the other side to resist his various appeals and applications. He argued that somehow or other the decision of the House of Lords in Hall v Simons [2002] 1 AC 615 and the enactment of the Access to Justice Act 1999 had altered the basis on which the case of Connolly Martin v Davis had been decided.

I, for my part, cannot see that those new developments have made any difference at all to the general proposition in Connolly Martin v Davis, that a member of the Bar or a solicitor conducting litigation owes no duty of care to the litigant on the other side, for the good reasons of public policy set out in that judgment.

I, for my part, would regard all of Mr Bhamjee's proposed appeals against Mr Justice Park's order as quite hopeless.

What is a prospective second appeal, where Mr Justice Park rejected an appeal against Master Bowman's order, does not get within a hundred miles of identifying an important point of principle or practice or any other compelling reason why this court should entertain his application.

Although I cannot see why it took so long for Mr Bhamjee to mount this application, I would grant the extension of time and dismiss the applications.

I cannot leave these applications without making some further comments about what has been happening. I have set out the history of the various applications made by Mr Bhamjee and the response of this court to them on each occasion. It appears that of nine applications he has now made to this court since 1 January 2000, seven of them were with the benefit of fees exemption although he maintains that he paid fees wrongly on two occasions which he has been unable to recover.

Mr Bhamjee is not alone in making persistent applications to this court with the benefit of fees exemption. The court has been handed a report by the Civil Appeals Office which identifies the litigants in person by a letter. A litigant I will call "A" has made 23 applications in the period since 1 January 2000. All of them have been unsuccessful, all of them have been with the benefit of fees exemption. Litigant "B" has made 28 applications, 25 unsuccessful, 3 undetermined, all with the benefit of fees exemption. Litigant "C" has made 12 applications, 11 of them unsuccessful, 1 undetermined and all 12 with the benefit of fees exemption. Litigant "D" has made 31 applications, 31 unsuccessful, 30 with the benefit of fees exemption. Litigant "E" has made 15 applications, one of them successful, 13 unsuccessful, one undetermined, all with the benefit of fees exemption. Litigant "F" has made 47 applications, one of them successful, 28 unsuccessful, 18 undetermined, with fee exemption 40 times. Litigant "G" has made 22 applications, 19 unsuccessful, three undetermined, with a fee exemption on each occasion.

I am mentioning these matters in the course of this judgment because they bring to light a very serious contemporary problem facing the dispatch of business in this court. Following the report of the Review of the Court of Appeal (Civil Division) ("the Bowman Review") in September 1997, Parliament altered the law in the Access to Justice Act 1999 with the express purpose, as explained in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, 1319-1320, paras 41-45, of preserving the resources of the court - and resources represented by the skilled judges and lawyers who staff the court - for cases which warrant the attention of a court of this seniority in the judicial system.

The effect of these applications, when they are as devoid of merit as the applications with which we are concerned in the present case, is not only a serious financial one (the fee for the notice of appeal which is remitted in all these cases is now £100 whereas I am advised that the true economic cost of handling each of these hopeless applications, when one takes into consideration the accommodation and staffing costs, salaries of the judges, the government lawyers, judicial assistants and the court's administrative staff, must be well over £1,000) but also that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all.

We have also been advised that the two Deputy Masters of the court have to spend two hours each day on Registry work determining and dealing with appellant's notices which the office does not have jurisdiction to entertain, dealing with applications under Taylor v Lawrence [2002] EWCA.Civ 90, [2002] 3 WLR 640 which, as I said recently in Matlaszek v Bloom Camillin [2003] EWCA.Civ 154 at [30], totalled over 200 in a single year, and dealing with correspondence relating to applications which cannot be issued immediately when they are filed. This is work which is diverting the skills of senior members of the court's staff and the staff who work for them. Currently the relevant section in the Civil Appeals Office is now manned by four officers dealing with this work who are handling cases which are taking up an inordinate amount of the court's time for very little advantage.

I referred to Taylor v Lawrence. Mr Bhamjee tells us, or so we understand from the court records, that he wishes to challenge and re-open two of the decisions to which I have referred under the wholly exceptional jurisdiction of the court in Taylor v Lawrence. Last year he sought to re-open three other applications on the same grounds although he has not persisted with those applications. There are still further applications which Mr Bhamjee is now seeking to persuade the court to issue in relation to an appeal in proceedings against the General Council of the Bar and an appeal from Judge Bradbury in the County Court, and he is still pursuing correspondence in the Civil Appeals Office in relation to matters in which the Deputy Master, supported by a Lord Justice of Appeal, has firmly ruled that the court simply has no jurisdiction to entertain an appeal against a refusal of permission to appeal to a lower appeal court.

I must make it clear that I also refuse Mr Bhamjee's application to join the representatives of Barlow Lyde & Gilbert to these proceedings for exactly the same reasons as relate to the proposed claims against other proposed lawyers. His contention that the Legal Services Ombudsman owes some kind of duty to Mr Bhamjee which has been breached and gives rise to a claim in private law appears to me to be equally unsustainable. In any event, those cases stand struck out.

This is the sad story of just one litigant in this court who is taking up an inordinate amount of the court's resources to little real advantage. I have set these matters out because I consider that they need to be publicly known and understood.

I direct that a copy of this judgment should be sent to the Deputy Head of Civil Justice who will be able to consider its effect with the Civil Justice Council. I also direct that a copy of it should be sent to those within government who are currently considering the financial resourcing of civil courts, and particularly the Royal Courts of Justice. I know that the problem identified in this judgment is also a serious problem for those resourcing appeals at both High Court and County Court level. It is also a serious problem facing district judges and High Court Masters whose time and staff resources are being wastefully consumed by having to handle a significant number of cases which have no merit at all, brought by litigants who have no fees disincentive at all because they automatically qualify for fees exemption. I have described the typical imbalance between the remitted fee and the economic cost of handling each of these applications earlier in this judgment.

The third matter, which is more particular to the applications we heard today, is that, in my judgment, some effective means must be found of controlling the flow of litigation with which Mr Bhamjee is now bombarding the courts, without any fees disincentive whatsoever.

I direct that in the context of the current applications, a three-judge court should be convened in due course to consider whether it would be appropriate for the court to make any - and, if so, what - form of injunction to control his future litigious activities. In order to avoid a waste of scarce resources in the meantime, I would order a stay on all his current applications to this court and any applications he may lodge in the future with this court until that further hearing takes place. I would request that the Civil Appeals Office invite the Attorney General to consider how best the court might be assisted at that further hearing.

Because of the issues of public interest it has raised this judgment is freed from the restrictions on citation of judgments on permission applications.

LORD JUSTICE CARNWATH: I entirely agree with the order proposed and comments made.

I would add only one short point in relation to the planning context. As Mr Justice Sullivan observed in early 2001, this started from what one might describe as one of the most simple and straightforward cases of planning judgment. Unfortunately for Mr Bhamjee the planning inspector, whose job it was to decide these matters, reached a judgment against him. The planning Acts give ample opportunities for any relevant planning or legal issues to be raised, and Mr Bhamjee properly took them more than two years ago. In the course of that he raised points about the Use Classes Order and its relationship to the condition on the planning permission in his case. Again, unfortunately, he lost; those decisions have become conclusive and the enforcement notice has come into effect.

In planning cases it is particularly important that there should be finality, because these uses affect many people other than those directly connected. A breach of a confirmed enforcement notice is a criminal offence. Even if there were any merit in any of the points Mr Bhamjee has raised, which I am quite satisfied there is not, it is far too late to raise them now.