Ketley v Brent & Anor

The background to this appeal goes back a long way. Forrester Ketley are a firm of patent agents who provided services for Mr Brent. When in 1993 they sued for their fees and expenses they were met by a defence and counterclaim. The resulting proceedings have lasted for over 18 years.

In the spring of 2005 this court made an extended civil restraint order against Mr Brent in the underlying proceedings. Various orders were made against Mr Brent requiring him to pay money. When he did not comply with those orders Forrester Ketley applied for a charging order over a residential property at 20 Chantry Close, Sunbury-on-Thames, Middlesex, TW16 7TH. This is a residential property in which Mr Brent was living together with a Ms Leonie Palette. Following the grant of an interim charging order a final charging order was made against Mr Brent on 8 January 2004. A second charging order was made on 6 June 2005.

On 12 July 2007 Forrester Ketley began proceedings under Part 8 of the CPR seeking an order for sale of the property under the charging order. Mr Brent defended those proceedings but Vos J gave judgment against him on 17 November 2009 when he made an order for sale. His order required Mr Brent to give possession of the property by 21 March 2010. Mr Brent did not give possession by that date or by the later date to which the deadline was extended. In November 2010 Mr Brent had still not vacated the property so Forrester Ketley came back to court. Vos J heard their application on 6 December 2010. Among the orders that he made on that occasion was a mandatory injunction requiring Mr Brent to vacate the property by 10.30 am on 20 January 2011. Mr Brent asked for permission to appeal against that order. His application for permission was not dealt with until 1 February 2011, by which time the deadline for vacating the property had passed but Mr Brent had still not complied with the order.

On 1 February 2011 Lloyd LJ considered Mr Brent's application for permission to appeal and dismissed it, adding that it was an application made totally without merit so there was no chance for Mr Brent to renew his application orally. As Morgan J said in the court below, that meant that the order of Vos J was now incapable of challenge.

In the meantime on 5 September 2007 Waller LJ sitting in the Court of Appeal made a further extended civil restraint order in the following terms :

On 31 July 2009 Morgan J of his own motion extended the civil restraint order until 5 September 2011. Although Waller LJ's order covered steps taken in any court, Morgan J's extension of that order was limited to steps taken in the High Court or any county court. The civil restraint order does not therefore impact on Mr Brent's appeal to this court.

Since Mr Brent had failed to comply with the order of Vos J requiring him to vacate the property, on 25 January 2011 Forrester Ketley applied for a committal order. Mr Brent was granted emergency legal aid for representation in connection with that application on 23 February 2011. The legal aid was to expire on 22 March 2011.

The solicitors instructed on Mr Brent's behalf were Duncan Lewis. The first scheduled hearing of the application for committal was adjourned by consent. Duncan Lewis corresponded by email with Shakespeare Putsman, Forrester Ketley's solicitors, over the days leading up to the adjourned hearing which had been fixed for 10 March. On 9 March 2011 Mr Brent sent, I think by email to the court, his tenth witness statement. In that witness statement he said he was too ill to attend the hearing because he was suffering from the symptoms associated with his stress-related heart condition. He also said that Duncan Lewis had informed him that they might not be able to represent him at the oral hearing, but that that would be confirmed by 10am on 10 March itself.

The adjourned hearing came before Morgan J on 10 March. On the morning of the hearing neither Mr Brent nor Duncan Lewis were present, although the emergency legal aid funding was still in force. Mr Brent faxed a sick note from his GP to the court and that was passed to Morgan J during the course of the hearing itself. Morgan J also considered a medical report on Mr Brent prepared by Dr Dymond following an examination of Mr Brent on 7 March. Dr Dymond had taken Mr Brent's full history, had examined a large quantity of medical data about him and had carried out his own examination. Dr Dymond's conclusion was that Mr Brent was medically and cardiologically fit to attend a hearing on 10 March and to give evidence. However, he qualified that by asking the courts to be sympathetic to the symptoms that Mr Brent experienced under stress. He said that they were not life-threatening but might be disabling and inhibit his ability to perform as required. Dr Dymond said that Mr Brent might require prolonged periods of rest, should be allowed to do breathing exercises and should be allowed to take his medication and to have frequent drinks of water. He also expressed the view that committal to prison would exacerbate Mr Brent's symptoms.

Morgan J first considered Mr Brent's application that he should recuse himself, which he refused. He went on to consider Mr Brent's application to adjourn, which he also refused. Following those two refusals he went on to find the contempt proved to the criminal standard of proof and proceeded to sentence. The only order under appeal in this appeal is the order of Morgan J dated 10 March 2011. By his order of that date Morgan J found that Mr Brent was in breach of the order requiring him to give possession of the property and also in breach of an injunction to the same effect. He was therefore in contempt of court. He made an order committing Mr Brent to prison for eight weeks but suspended the order so that it would not come into effect if Mr Brent vacated the property by 28 March 2011.

The period of suspension was subsequently extended to the 4 April 2011. Mr Brent did not vacate the property by the deadline set by the order although he has now done so. However, even though the period of suspension expired without Mr Brent having left the property, I understand that he did not in fact serve any part of the prison sentence imposed upon him.

Mr Brent now appeals against the committal order made by Morgan J on 10 March 2011.

A theme that runs throughout Mr Brent's lengthy written submissions in support of his appeal is that decisions had been made in the underlying proceedings that infringe his human rights. He wishes to bring proceedings to vindicate those rights. His chosen vehicle for the proceedings is section 7 of the Human Rights Act 1998. That says:

“(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2)In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding...”

Section 6 (3) says that the court is a public authority for this purpose. So far so good. However, the obstacle in Mr Brent's way is Section 9 of the Human Rights Act, which says :

“(1)Proceedings under section 7(1)(a) in respect of a judicial act may be brought only—

(a)

by exercising a right of appeal;

(b)on an application (in Scotland a petition) for judicial review; or

(c)in such other forum as may be prescribed by rules.

(2)That does not affect any rule of law which prevents a court from being the subject of judicial review.

(3)In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

(4)An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.”

It follows therefore that the principal way in which Mr Brent can complain about breaches by the courts of his human rights is by exercising a right of appeal, but the right of appeal is not an unfettered right. It is limited by CPR 52.3, which says that an appellant needs permission to appeal against a decision of a judge in a County Court or the High Court except in limited cases. These limited exceptions include committal orders but otherwise have no bearing on this case. However, Mr Brent points to CPR 7.11, which says :

Mr Brent argues that this gives him a freestanding right to bring proceedings against judges for breaches of his human rights. The first problem with this contention is that while the extended civil restraint order was in force he needed permission to bring the claim. He does not have that permission. The claim was in fact made by claim form dated 16 February 2009 during the currency of the extended civil restraint order made by Waller LJ, so the claim is liable to be struck out for that reason alone. I might also add that, under section 7 (5) of the Human Rights Act, proceedings should normally be brought no later than one year after the act complained of. Many of Mr Brent's complaints are on the face of it well out of time. Some of them also seem to relate to events that took place before the Human Rights Act came into force, and the Act does not have retrospective effect.

The second and in my judgment insuperable problem is that High Court judges are immune from suit when acting judicially. In Sirros v Moore [1975] QB 118 Lord Denning put it as follows :

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentence which he imposes, cannot be made the subject of civil proceedings against him. No matter that he was under some gross error or ignorance or was activated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus or a writ of error or certiorari, or take some such step to reverse his ruling."

In the same case Buckley LJ said, omitting references to the case=law:

I do not consider that the Human Rights Act or CPR 7.11 alters that fundamental principle, which is in part preserved by section 9(2). In my judgment, therefore, the only way in which Mr Brent can complain about alleged violation of his human rights in the course of proceedings in the High Court is by way of appeal and that, for the reasons I have given, is not a route open to him. But, even if I am wrong about that, the third problem is that success in an action under section 7 of the Human Rights Act will not result in the setting aside of the order under appeal, because one High Court judge does not have the power to set aside an order of another High Court judge. So, once again, the only way of achieving the result that Mr Brent desires is by way of appeal.

The fourth and final problem is that unless and until the orders about which Mr Brent complains are actually set aside he is required to obey them. The position was made crystal clear by Lord Diplock in Isaacs v Robertson  [1985] AC 97. He approved the following passage from the judgment of Romer LJ in Hadkinson v Hadkinson [1952] P 285:

Mr Brent has attempted to appeal against many orders. Some of these appeals were made during the currency of one or other of the civil restraint orders, some were not, but on no occasion has Mr Brent been given permission to appeal. He himself says in his lengthy written argument that, at every stage, his applications for both permission to appeal and to re-open final decisions have been refused. Accordingly, for the reasons I have given, the orders leading up to the committal were orders that Mr Brent was required to obey and, if he did not, he was liable to be committed for contempt.

So far as the appeal against the committal order itself is concerned, Mr Brent does not need permission to appeal. However, it is illegitimate for him to attempt to use an appeal against the committal order as a means of sidestepping the refusal of permission to appeal in relation to all the other orders of the court with which he is dissatisfied. The first 39 pages of Mr Brent's written submissions are largely devoted to orders other than the committal order, which as I have said is the only order under appeal.

The first ground of appeal directed to the committal order is the argument that an application for committal is a criminal case for the purposes of the Human Rights Act 1998 and, in particular, for the purpose of Article 6 of the European Convention on Human Rights. The first step in this argument is correct (see for example the decision of this court in Daltel Europe Ltd. & Ors v Makki & Ors [2006] 1 WLR 2704). The fact that committal for contempt is classified as a criminal case for the purposes of Article 6 brings into play Article 6(2)(c), which gives everyone charged with a criminal offence the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. This right to legal aid is dependent on two conditions. First, it must be shown that the person charged does not have sufficient means to pay for legal assistance. There was no evidence of Mr Brent's means before the judge. Second, the interests of justice must require the provision of free legal representation. In a case in which a person faces the possibility of imprisonment, legal aid will generally be granted. No doubt that is why Duncan Lewis were acting on Mr Brent's behalf. There was no material before Morgan J to explain why Duncan Lewis did not appear at the hearing on 10 March. Reading between the lines of Mr Brent's tenth witness statement, it seems likely that they disagreed with Mr Brent's views about the impact of the Human Rights Act 1998. But the right to legal representation does not entitle a person charged with an offence to change his legal representation at the last minute and thus compel an adjournment.

The next step in Mr Brent's argument is that, because an application for committal is classified as a criminal case for the purposes of Article 6, he was entitled to the protection of the Criminal Procedure Rules 2010 and that the application should have been conducted under those rules rather than under the CPR. That step in the argument is incorrect. The fact that the particular kind of case is classified under the European Convention on Human Rights as criminal does not mean that it has the same classification in domestic law. Thus the point of the case in Daltel itself was whether the reception of hearsay evidence on an application to commit was governed by the domestic legislation applicable to criminal cases or that applicable to civil cases. This court held that the rules applicable to civil cases applied. Mr Brent argues that Morgan J did not allow him to exercise his rights to a fair trial under Article 6 at the hearing on 10 March when he made the committal order. His first objection appears to be that a hearing should have been conducted in accordance with the Criminal Procedure Rules rather than the CPR. As I have said, this point is wrong.

His second objection is that Morgan J should have adjourned the hearing on 10 March because Mr Brent was unwell and unable to attend. Whether to adjourn a hearing is a matter of discretion for the first-instance judge. This court will only interfere with a judge's exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.

In Levi v Ellis-Carr [2012] EWHC 63 (Ch), Norris J set out his approach to medical evidence, in terms with which I agree. He said of the evidence in that case:

In the present case Morgan J considered all the medical evidence that Mr Brent had placed before the court. He considered the report from Dr Dymond and the letter from Mr Brent's GP, Dr Johnson. On the basis of that evidence he concluded that Mr Brent was not, as he put it, organically or chemically ill but was suffering from stress associated with the litigation. The stress was genuine. He was physically fit to attend the hearing but emotionally vulnerable to stress. These conclusions were amply supported by the medical evidence. Morgan J took the view that Mr Brent was absent from the hearing voluntarily and that he himself was aware of Mr Brent taking or attempting to take advantage of his non-participation in hearings. He thus refused to adjourn the hearing. In my judgment that was an impeccable exercise of the judge's discretion.

Mr Brent's next complaint is that the judge should have adjourned the hearing to allow him to obtain legal representation under legal aid. It seems from Mr Brent's written arguments that his solicitors would not take instructions from him on the morning of the hearing, but, as I have said, he had solicitors acting for him in the run-up to the hearing because it was those solicitors who obtained the medical report from Dr Dymond. Mr Brent's stated reason for wanting to be represented by solicitors was to challenge the previous orders mad by other judges on which the application to commit was based. However, that would have been an impossible challenge before Morgan J, who could not have adjudicated on the correctness of earlier orders made in the proceedings. As I have explained, Mr Brent had applied for permission to appeal against earlier orders and had been refused. Moreover it does not appear that the application to adjourn the hearing that Mr Brent in fact made to the judge was based on his desire to obtain legal representation. In those circumstances it is impossible to criticise the judge's exercise of discretion on the basis that was not put before him.

Importantly, nowhere in all Mr Brent's lengthy material does he deny that he failed to comply with the order of Vos J requiring him to give up possession of the property and had still failed to comply by the time that the application to commit came before Morgan J. Indeed in his tenth witness statement, which was before the judge, he accepted that he had not complied with Vos J's order. In other words, apart from the impermissible challenge to the underlying order itself, the contempt was undisputed. Nor did Mr Brent apologise for his flouting of the court's order. In those circumstances it was inevitable that Morgan J would find the contempt proved.

The appeal against the finding of contempt must therefore fail. There is no separate appeal against the sentence imposed by Morgan J. Accordingly, I would dismiss the appeal.

This is a sad case, but 18 years of litigation has to be enough. It is particularly sad since Forrester Ketley never sought to have the suspended sentence activated even though Mr Brent had not moved out by the end of the suspensive period of that sentence. Any appeal from the order of Morgan J of 10 March 2011 therefore serves no real purpose.

This morning Mr Brent sought to have his appeal adjourned for an enormous number of reasons all associated with his dissatisfaction with the judicial process. We decided that there should be no further adjournment of an appeal which has now been extant for 11 months. He unfortunately then felt so unwell that he could not continue and asked for an ambulance to be called. We adjourned for an hour but have continued to be of the view that the appeal must continue. We have carefully considered the appeal, many of the arguments in support of which were deployed by Mr Brent in support of his application for an adjournment (see his skeleton argument of 20 February 2012 the whole of which he read out in the course of his application to adjourn).

I agree with the reasons of Lewison LJ for dismissing this appeal. We will assume that Mr Brent would wish to apply to appeal our order to the Supreme Court. That application is also refused.

I must add that Mr Brent has caused the spending of an enormous amount of time and energy on the part of the court service and the very loyal court staff we are privileged to have. That employment of time and energy must now cease and no oral hearing of any of Mr Brent's applications will hereafter be listed.