Forrester Ketley & Co v Brent

LORD JUSTICE AULD: Lord Justice Neuberger will give the first judgment.

LORD JUSTICE NEUBERGER: This is an appeal brought by Mr David Brent, a counterclaiming defendant in proceedings brought by Forrester Ketley & Co, against a decision of Jacob J and another decision of Laddie J. It is also the hearing of an application by Forrester Ketley for a civil restraint order against Mr Brent.

Mr Brent does not appear, but he has made fairly voluminous submissions in writing. He has applied for an adjournment of the hearing of this appeal on the grounds of his ill health. Normally this court is sympathetic to an application for an adjournment on grounds of ill health. However, in this case it appears to me that it would be quite inappropriate to accede to the application.

The most recent medical report provided by and in respect of Mr Brent suggests that he is suffering from a degree of stress. But it seems to me that if this court was to agree an adjournment simply because a litigant was suffering stress, most appeals would be adjourned. It may be said that at least part of the stress in many cases is caused by the existence of the appeal, and one would therefore be doing a favour to the applicant by hearing the appeal rather than by adjourning and thereby prolonging the stress.

Furthermore, this case has a history of Mr Brent applying for adjournments on the grounds of his health, in most cases with medical certificates which do not justify an adjournment. Of course one must be sympathetic to any litigant, particularly a litigant in person, who says he is unable to attend, but equally one has to bear in mind the position of the other party. These proceedings have a long and complicated history with many applications having been made. Rather than go thorough them, it is right to refer to a judgment of mine given on 2nd December 2004 which deals with some (and I emphasise only some) of the applications and hearings that there have been in this case. For my part, I would unhesitatingly dismiss the application for an adjournment of today's hearing.

I turn now to the appeal of Mr Brent. Very briefly, the relevant events occurred as long ago as 1993. The claimant patent agents began proceedings in 1994 for professional fees in respect of work they said they carried out for Mr Brent in relation to the registration of certain patents, the sum involved being £4,400. The defendant defended on the basis that he had paid everything that was owing, and he counterclaimed for (a) £5,000 which he said was owing to him in respect of overpayments to the claimant and (b) damages for the claimant's alleged negligence. These counterclaims were also raised by way of defence in the form of a set-off.

The proceedings took what I described in my earlier judgment as a long and complex course, and came before Jacob J on 25th July 2003. He said that there had been 22 previous applications by the defendant by that time and he made an order, the only relevant part of which was in paragraph 2, which ordered that the defence and counterclaim be struck out unless the defendant by a specified time:

The defendant failed to comply with either limb of that paragraph of the order of Jacob J. Accordingly on 25th September 2003, pursuant to an application made by the claimant, Laddie J ordered that the defence and counterclaim be struck out and made appropriate orders for costs.

Mr Brent, the defendant, applied for permission to appeal and his application was dismissed in writing by Jonathan Parker LJ.

After a couple of applications for an adjournment of his application for an oral hearing, Arden LJ proceeded in his absence to deal with the claimant's application for permission to appeal. She decided on 19th July 2004 that it was arguable that Jacob J should not have made an order in the form that he did in paragraph 2(a) of his order of 25th July 2003, at least so far as the re-amended defence was concerned.

The appeal comes on for hearing today. As I have already explained, Mr Brent is not present and nor is anyone on his behalf, but we have had communications from him in writing. Mr Andrew Norris appears on behalf of the claimant, Forrester Ketley, to resist the appeal.

In my judgment, Jacob J was entitled to make the order that he did in paragraph 2(a) that I have read out. Accordingly, this appeal should be dismissed. It follows that Laddie J was entitled to strike out the claim. Quite apart from that, it is my view that the appeal would in any event be pointless because Mr Brent has failed to comply with paragraph 2(b) of Jacob J's order, against which there is no appeal.

So far as the first reason is concerned, while it was plainly right to require Mr Brent to provide particulars of his defence in an appropriate form, another judge might not have thought it necessary to provide that, failing that, his claim would be struck out. But to my mind Jacob J was acting well within the margin of his discretion when he made the order that he did. While it might have appeared differently to Arden LJ when the matter was ex parte before her, it seems to me that it would have been unrealistic for Jacob J not to have regarded the defence and counterclaim as inextricably linked, given that Mr Brent was relying on the counterclaims, not merely as counterclaims but also as a defence in the form of set-offs. Therefore the requirement that he provide particulars, failing which his defence as well his counterclaim should be struck out, was entirely defensible, and indeed logical. The notion that over 100 pages spread over eight documents should be put into a single document and clearly expressed seems to me to be one with which nobody could quarrel. The idea that the defence and counterclaim should be struck out if that was not done was intended by Jacob J to give his order teeth. In light of the history of the matter as described by him, it is scarcely surprising that he took that view. It is a case management decision with which this court should be in principle very slow to interfere.

It is not as if an order that a defence be struck out if a step is not taken is final for all purposes. Even after the defence and counterclaim had been struck out by Laddie J, it would have been open to Mr Brent to apply for the defence and counterclaim to be reinstated on the grounds that he had complied, or would very shortly comply, with paragraph 2(a) of Jacob J's order, albeit out of time. Indeed, that would have been the appropriate course for him to take, rather than appealing the decisions of Jacob J and/or Laddie J to this court. We were told today by Mr Norris that is indeed the course which the claimant's solicitor proposed to Mr Brent.

Quite apart from that, as Mr Norris points out, paragraph 2(b) of Jacob J's order (against which Arden LJ did not give permission to appeal) has still not been complied with. This means that this appeal would be completely hypothetical, unless at this very late stage Mr Brent was to pay the £1,250 referred to in paragraph 2(b), albeit out of time.

In those circumstances, in my view this appeal should be dismissed.

That then brings me to the extended civil restraint order which the defendant seeks. In light of the history of this matter, and subject to one point, it is my view that this is a clear case for making such an order. Even now, Mr Brent is writing letters indicating that he is, to put it bluntly, out of control. On 15th January he wrote to the claimant's solicitors with a copy to this court:

Three days later in a letter to the same addressee, similarly copied, he wrote this:

On the same day, in a letter written direct to this court, he stated that he had claims in the European Court of Human Rights against the "United Kingdom", the claimant's instructing solicitor, and PAMIA, the body responsible for Patent Agents' insurance.

Mr Brent has also at various times tried to join the Crown, the DCA, the Lord Chancellor, various judges, and the entire partnership of the claimant's solicitors in these proceedings and he has embarked on satellite litigation seeking criminal sanctions against the High Court, the Court of Appeal, various members of the Court of Appeal, and "the Health and Safety Executive".

When one judges that against the history of applications and appeals set out for instance in Jacob J's judgment leading to the order he made and in my judgment of 2nd December 2004, and adds to it the fact that he has suggested that Chadwick LJ, myself and Master Moncaster have committed criminal offences, it seems to me that there is no alternative but to protect the claimant by the means of such an order.

In though circumstances, it seems to me that, as I say, subject to one point, it would be appropriate to make an order as sought by the claimant. It is necessary to identify a judge to whom applications would be made (if he wishes to make them) by Mr Brent. As this is a patent action and as Laddie J has made one order, to which I have referred, I would think it right to adopt the proposal made by Mr Norris that Pumfrey J be nominated as the judge to whom applications are made.

However, given that Mr Brent is absent from court, it seems to me that it would be right to give him an opportunity to make written submissions as to why an extended civil restraint order should not be made. Therefore, I would suggest giving him two weeks to make submissions in writing as to why such an order should not be made.

A copy of this judgment should be prepared as soon as possible and sent to him. If he makes submissions they will be considered. I would suggest that if they persuade this court that he should not be subject to a civil restraint order, then the order will be rescinded. If he says nothing which persuades us to the contrary, then the civil restraint order will stand.

Accordingly, I would (a) dismiss this appeal and (b) make an extended civil restraint order, with Pumfrey J nominated as the judge to whom applications must be made, with liberty to Mr Brent to make written submissions as to why the civil restraint order should be discharged.

LORD JUSTICE AULD: For the reasons given by my Lord, I agree that the application of Mr Brent for an adjournment of this hearing today should be dismissed; that his appeal pursuant to the permission of Arden LJ should also be dismissed; that the respondent's application for an extended civil restraint order should be granted in the terms sought, with liberty to apply in writing within two weeks of receipt by Mr Brent of the court's judgment; and that there should be an order for costs in favour of the respondent.