Rayne, R (on the application of) v West London County Court

MR JUSTICE HICKINBOTTOM: The background to this claim is complex and extremely lengthy, but the point at issue before me is fortunately discrete and narrow. I can therefore deal with the background facts shortly.

Lady Rayne, who is the second claimant in this action, held a common law tenancy of 25 William Mews by virtue of a tenancy agreement entered into with a predecessor of Sir Anthony Havelock-Allan and others, who, in due time, inherited the freehold. The freeholder landlords issued possession proceedings against Lady Rayne on the basis of rent arrears, which claim was protracted and involved several applications both to this court and to the Court of Appeal.

The proceedings were effectively brought to an end on 25 April 2008 – in favour of the claimant landlords - when Saunders J refused permission to judicially review an earlier decision of the County Court: and, because this was not done voluntarily, the landlords then requested the bailiff to clear the house of Lady Rayne's saleable possessions. On 10 May, the bailiff duly cleared the house.

However, on 16 May, the first claimant, Mr Rayne (Lady Rayne's son) served notice of an interpleader claim on the basis that some of the items seized belonged, not to Lady Rayne, but to him. The landlords immediately accepted that that was the case. They notified Mr Rayne and the court, on 17 and 19 May respectively, that the ownership of the items identified by Mr Rayne was not in issue: or, in other words, that they did not contest the interpleader.

On 11 June 2008, District Judge Ryan ordered the bailiff to withdraw from possession forthwith and he made various directions with regard to determination of costs, which he put over for the court to deal with at a later hearing. The claimants now challenge that order on the basis, as I understand it, that the District Judge had no jurisdiction to make such an order because a District Judge cannot determine an interpleader claim relating to execution in the County Court because of his position as "high bailiff". As such, he is effectively a party to the interpleader and therefore, it is submitted, he cannot sit in judgment on it because of an inevitable conflict of interest.

That ground is misconceived. With regard to the withdrawal from possession, as accepted by Mr Rayne today, Order 33 Rule 2(1) of the County Court Rules, which has been retained by a Schedule 2 of the Civil Procedure Rules, requires execution creditors in interpleader proceedings to give notice to the court informing the court whether they admit or dispute the interpleader claim, or request the court (the district judge) to withdraw from possession of the goods. In this case, as I have indicated, the creditors (the landlords) indicated to the court that they did not contest the interpleader claim, and as a result the District Judge quite properly withdrew from possession in his order of 11 June. The other orders made that day were purely case management orders and did not consider, yet alone decide, any issue between the interpleading parties.

With regard to costs of the interpleader, that issue was dealt with on 21 July 2008 by the District Judge. However, because of the submission made by Mr Rayne (that that judge ought not to have dealt with that matter because there was a conflict of interest because he was high bailiff), HHJ Knowles by an order of 21 November set the District Judge’s order for costs aside, and considered and dealt with costs at a new hearing. That hearing resulted in an order dated 21 November 2008 although, for some reason not apparent from the papers I have seen, the judgment is dated 1 December 2008. It is clear from that judgment that Judge Knowles dealt with the merits of the costs of the distraint. She refused permission to appeal; and, if Mr Rayne wished to challenge that order, then the appropriate route would have been to the Court of Appeal. Certainly no challenge to that order can properly be entertained in this court.

For those reasons, I consider that the order of the District Judge is not arguably unlawful. As indicated in the earlier orders of Sir Thayne Forbes and Lord Carlisle in relation to the claim, this claim is totally without merit, and the order should be marked as such.

This is not the claimants’ first claim to have been found to have been totally without merit. The order of Saunders J, to which I have referred, is so marked, and the possession proceedings also have a number of orders similarly marked. Although I do not consider that a civil restraint order should be made against the claimants today, they should be aware that it is in the court's power to make an order under CPR Rule 3.11 and Practice Direction C that they be restrained from making claims, or applications, without the leave of the court to prevent wastage of time and effort of both the court and other parties, if those claims be meritless.

However, in relation to this claim I will simply dismiss the claim as totally without merit. The defendant has not appeared during the course of the claim and there will be no order for costs.

MR JUSTICE HICKINBOTTOM: Mr Rayne, to explain, CPR Rule 3.11 enables the court to make a civil restraint order on a party who persistently makes claims or applications that are totally without merit. You now have had two orders marked thus, and that is one of the requirements for an order to be made. If you persist in making such applications then the court will consider making an appropriate order.

Is there anything else?

THE APPLICANT: Just to clarify, that would prevent one continuing with the litigation?

MR JUSTICE HICKINBOTTOM: No, it prevents you taking any steps in the identified litigation without obtaining the leave of a judge. You cannot simply go to the court counter and issue a claim or an application without obtaining leave. It puts in place a preliminary hurdle before you can take a step in a claim, or make a fresh claim.

THE APPLICANT: No more or no less? If you were given permission--

MR JUSTICE HICKINBOTTOM: It does not prevent you from making legitimate claims. It prevents you from making those claims that are without merit.

THE APPLICANT: Frivolous and vexatious is the legal jargon sometimes--

MR JUSTICE HICKINBOTTOM: That is what the court used to call them.

THE APPLICANT: I am disappointed, but thank you very much, my Lord.