Shepherd v the Official Receiver

This is a renewed oral application for permission to appeal by Mr Shepherd against two orders made in the Chancery Division. The first order was made by Mr Timothy Kerr QC, as he then was, sitting as a deputy High Court judge on 6 November 2014. By that order an application issued by Mr Shepherd on 18 March 2014 was dismissed as being totally without merit. The second order was made by Morgan J on 9 February 2015. It was an extended civil restraint order forbidding Mr Shepherd for a period of two years from the date of the order from issuing proceedings in the High Court or the county court or issuing any application, appeal or other process in any such court concerning (1) the Official Receiver’s decisions not to pursue a claim against the Legal Services Commission, and not to assign any such claim to Mr Shepherd; or (2) any other matter arising out of the Official Receiver’s involvement in the bankruptcy of Mr Shepherd, whether before or after his discharge from bankruptcy, without in either case first obtaining permission in accordance with the terms of the order.

There is a long history, although the proper principal focus in these matters has been on events since Mr Shepherd was made bankrupt in 2002. A brief reference to earlier events is, however, necessary. Mr Shepherd practised as a solicitor practised but was struck off the roll of solicitors following his conviction in December 1993 on 15 specimen counts of fraud in relation to claims made to the legal aid board and its predecessor, the Law Society, for payment under the provisions of the Legal Advice and Assistance Scheme, the so-called Green Form Scheme.

Subsequently Mr Shepherd issued a total of four sets of proceedings against the Legal Aid Board in respect of a significant number of Green Forms where Mr Shepherd said that he was entitled to payment. All of those proceedings were wholly, or, as Mr Shepherd has suggested to me today, in part struck out or summarily dismissed. In respect of one set of proceedings, there was an application to the Court of Appeal for permission to appeal which was refused by Laws LJ in June 2000.

Following the making of a bankruptcy order against Mr Shepherd in 2000, such claims or rights as he might have had against the Legal Aid Board were vested in the Official Receiver as his trustee in bankruptcy. Mr Shepherd made representations to the Official Receiver with a view to persuading him to pursue claims against the Legal Aid Board.

In a letter dated 16 January 2003 the Treasury Solicitor on behalf of the Official Receiver set out in some detail the reasons for the Official Receiver’s decision not to pursue those claims. The Official Receiver had concluded that such claims did not have any reasonable prospect of success.

It is important to emphasise at this stage that following Mr Shepherd’s bankruptcy the claims that he might have against the Legal Aid Board vested in the Official Receiver. They were no longer claims which Mr Shepherd was entitled to pursue. It was a matter for the Official Receiver to decide in accordance with his statutory duties whether any such claims should be pursued.

Since the decision of the Official Receiver not to pursue those claims Mr Shepherd has sought to challenge that decision on a number of occasions. The steps that have been taken by Mr Shepherd are summarised by Morgan J in paragraphs 9 to 14 of his judgment dated 9 February 2015. He said in those paragraphs:

“9.

The first step that was taken by Mr Shepherd to challenge the Official Receiver’s decision not to pursue a claim against the Legal Services Commission was an application for judicial review. Mr Shepherd was refused permission to apply for a judicial review. In 2006 Mr Shepherd brought an application under section 303 of the Insolvency Act 1986. The purpose of the application was to bring the Official Receiver’s decision not to pursue the litigation to the attention of the court with a view to the court giving directions to the Official Receiver which, Mr Shepherd hoped, would have led to a claim being brought for the benefit of the bankrupt’s estate.

10.

Mr Moss QC dealt with the application in 2006 and dismissed it. Mr Shepherd sought permission to appeal. Permission to appeal was refused by Chadwick LJ, who said that an appeal would be hopeless. In 2007 Mr Shepherd tried again with a further application under section 303 of the Insolvency Act 1986. That was dismissed by Mr Registrar Simmonds on 17 June 2008. Mr Shepherd sought permission to appeal, which was refused on the papers, and again following an oral hearing. Mr Shepherd made a third application under the Insolvency Act 1986 in relation to the Official Receiver, this time on 29 May 2009. That application was dismissed by Mr Registrar Simmonds on 9 June 2000. Mr Shepherd obtained permission to appeal against that dismissal but the appeal was dismissed by Mr Strauss QC sitting as a judge of the High Court on 23 March 2010. Mr Strauss was also asked to make an extended civil restraint order against Mr Shepherd and he did so. The order he made on that day lasted for two years until 22 or possibly 23 March 2012. During that two-year period Mr Shepherd did not make an application of the kind which he had made before, though I do not know whether he applied for permission to do so.

11.

When the two years of the extended civil restraint order expired Mr Shepherd started again. On 11 February 2013 he made a further application against the Official Receiver relating to the decision not to pursue the Legal Services Commission. That application was dismissed by Deputy Registrar Nicholas Briggs, who certified that the application was totally without merit. Mr Shepherd applied for permission to appeal this decision and permission was refused by Birss J on 25 November 2013. I have been provided with a copy of Birss’ J order. He refused permission to appeal. He certified that the appeal was totally without merit. He directed consistently with that certificate that Mr Shepherd could not request the decision to be reconsidered at an oral hearing and Birss J gave detailed reasons for his conclusions. Those reason set out the nature of the points which Mr Shepherd wished to raise and why Birss J had concluded that there was no substance in them and they were totally without merit.

12.

Birss J was asked to make a civil restraint order but in his reasons he indicated why he would not do so. He appears to have asked himself whether there were two applications which were totally without merit. He regarded the application to Deputy Registrar Nicholas Briggs and the appeal to Birss J as in substance one matter, so that one matter was totally without merit rather than two. He held it would not be fair to make a civil restraint order on that occasion. He added however the following: “However, if Mr Shepherd persists in making applications which are totally without merit then he is running a grave risk that the court may make another civil restraint order against him.” That was 25 November 2013.

13.

On 18 March 2014 Mr Shepherd did apply again against the Official Receiver, again under section 303 of the Insolvency Act 1986. Mr Registrar Barber directed that the application should be heard by a judge rather than a Registrar. It appears that her purpose in doing so included the reason that the Official Receiver could seek an extended civil restraint order against Mr Shepherd from the judge. The application was heard and determined by Mr Kerr QC sitting as a judge of the High Court on 5 November 2014.”

Then he recites the passage from the judgment of Mr Kerr, and that really brings up to date the procedural history.

Looking first at the decision of Mr Kerr QC, he dismissed Mr Shepherd’s application under section 303 on the grounds essentially that it was an attempt to re-litigate the same challenge which Mr Shepherd had previously made in the earlier applications under that section, all of which had been dismissed.