Sheikh & Anor v Dogan & Ors

At 5.00p.m. on 10^th November 2009 I concluded an extempore judgment upon the application of the first four defendants in action 2325 (and the same defendants in action 2326) to strike out Ms Sheikh’s claims against them. Ms Sheik and her friend Mr Sampat (to whom I granted a right of audience to represent Ms Sheik’s mother at that hearing) had addressed me for over 3½ hours.

At 11 a.m. on 11 November I received a 30 page fax from Ms Sheikh containing “ Submissions prior to sealing of order” in purported reliance on “CPR 42.1” and the jurisdiction recognised in Re Barrell Enterprises [1973] 1 WLR 19. At 10:50 a.m. on 12 November I received two further faxes totalling eight pages by way of supplementary submission by Ms Sheikh with the assistance of Mr Sampat. The purpose of this judgment is to deal with these submissions.

“CPR 42.1” is not relevant. I think what Ms Sheikh intended to refer to is CPR 40.2 (1). Even so that rule itself does not confer jurisdiction to do anything.

As was recognised in Re Barrell Enterprises a judge does have power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed. But it is clear that the judge should only exercise this power if there are strong reasons for doing so. As was pointed out in Re Barrell itself, when oral judgments have been given the successful party ought, save in the most exceptional circumstances, to be able to assume that the judgment is a valid and effective one. As has been reiterated time and again in the Court of Appeal (see most recently Paulin v Paulin [2009] EWCA Civ 221) the jurisdiction does not exist so as to enable a party to re-argue points already argued orally or to advance points which were not argued before judgment was given. That is why in Egan v Motor Services [2007] EWCA Civ 1002 Lady Justice Smith deprecated the growing practice of writing to the judge to ask him to reconsider his decision. It is precisely that practice which Ms Sheikh (assisted by Mr Sampat) has adopted.

There are no strong reasons why I should reconsider my decision.

Ms Sheikh says first that I misunderstood “the status of the proceedings”. Action 2325 is a freestanding claim (as is action 2326). Ms Sheikh is a party to another action (action 2257) commenced by two of the Defendants to action 2325 (who are applicants for the strikeout order before me). In the course of argument I enquired of Counsel for the applicants whether Ms Sheikh had a counterclaim in action 2257: he replied that he believed that she did not. Ms Sheikh did not then say otherwise: nor did she submit otherwise or draw one to my attention in the course of argument. In my judgment, in the course of describing the context within which the applications before me fell to be decided, I referred to Ms Sheikh’s Defence in action 2257 and noted that she advanced no Counterclaim. In so doing I sought to make clear that I appreciated that the actions which I was being asked to strike out were the one positive case that Ms Sheikh was advancing against there Defendants.

After I had concluded judgment Ms Sheikh asserted that she did have a Counterclaim in action 2257. She produced from a file short document headed “Defence and Counterclaim” and settled by Counsel. In doing so she misled me (whether innocently or deliberately is irrelevant). As I thought at the time when she produced this document (and have since confirmed by referring to the court file) Ms Sheikh has amended her statement of case in action 2257 to strike through the entirety of the document settled by Counsel and to substitute her own pleading, which consists of a Defence (but no Counterclaim), and which refers in paragraph 82 to her intention to issue a counterclaim (which she has not done).

I have therefore not misunderstood the status of action 2325. If in action 2257 Ms Sheikh’s Defence is being treated as if it were a counterclaim (despite the absence of formal statement of case setting out the relief claimed and against whom) that would in fact provide an additional reason for the order I made striking out as against the First to Fourth Defendants the paragraphs concerning them in action 2325 and 2326: there is no reason why Ms Sheikh should allege the same things against the same people but in different actions. If she has a subsisting counterclaim she does not need action 2325.

Then Ms Sheikh asks me to order that the statement of case in action 2325 as against the First to Fourth Defendants should stand as a counterclaim in action 2257. This is not something sought at the hearing itself. It is in any event wholly inappropriate. The issues in action 2257 should be found within the statements of case in action 2257. Neither the judge nor the Claimants in action 2257 should be required to trawl through part of the statement of case in another action to see what issues will be decided in action 2257.

Then Ms Sheikh seeks to re-argue (with extra authority) the submission that she had particularised her case sufficiently. That is an abuse of the right of an applicant to ask the court to exercise the Re Barrell jurisdiction. Even so I have considered the point made (it was in fact made at the hearing and the judgment delivered takes account of it) and I still judge it to be bad: and I have read the new authority and do not consider that the passage in it which cites McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 792 in any way justifies the form of pleading adopted by Ms Sheikh in action 2325 or action 2326.

Then Ms Sheikh seeks to amend her statement of case. This she cannot do without the permission of one of the judges supervising the civil restraint order: accordingly she applies for a stay to enable her to take that step. This application was not made at the hearing itself. The jurisdiction in Re Barrell does not exist to enable a party to avoid the consequence of a delivered judgment by making a new application. In any event the provision of additional particulars would not address the alternative ground for my decision viz. that the causes of action which Miss Sheikh seeks to set up were all compromised in a settlement agreement upon which Ms Sheikh herself relies and which she seeks to enforce.

Then Ms Sheik seeks permission to appeal. If Ms Sheikh considers my decision wrong in law then an appeal (not a faxed application for me to change my mind) is the correct route. But I have already refused permission to appeal.

Then Ms Sheikh seeks a general “stay of execution”. I decline to grant one. The First to Fourth Defendants are entitled to know whether or not they are parties to an action. I have held that they should not be: I see no reason to place them in limbo.

I regret that Ms Sheikh has seen fit to make these applications within hours of my warning her that she should concentrate her fire and that a plethora of applications was doing her case no good (as well as absorbing a disproportionate share of the Court’s finite resources).

I will formally hand down this judgment at 10.00 a.m. on the 17^th November 2009. No attendance is required.

Even as administrative arrangements were being made for the handing down of this judgment Ms Sheikh sent me a further 19 page fax. In these further submissions she says that no order should be drawn up consequent upon my judgment of 10^th November 2009 for the following reasons:-

Not one of these is a proper submission to make in the context of a submission that I should exercise the Re Barrell jurisdiction. Together they demonstrate a profound misunderstanding of the jurisdiction. Each is designed to ensure that the hearing upon which I have given judgment is never brought to a formal conclusion. Such a result would not be just. There is a public interest (and the Dogan parties have an individual private interest) in having orders drawn up at the conclusion of an application upon which judgment has been delivered. Finality is achieved. Everyone knows where they stand in relation to the litigation. If the decision is wrong the order can be appealed. I reject all of these additional submissions.

On the basis of my having heard and determined one application in the cases for which I am nominated judge Ms Sheikh speculates that I intend to strike out all her fraud cases and then report her to the Attorney-General in order to secure a general Civil Restraint Order with a penal notice attached. She refers me to HM Attorney General v Ranbir Kumar. Since I approach each application on its merits (and have only heard one) this was not a possibility that occurred to me (and I do not intend to consider it now). But I am obliged to her for drawing it to my attention. However, Miss Sheikh should be under no misapprehension. The fact that she speculates that I have already some fully formed strategy will not inhibit me from making such an order if at some stage and in some circumstances in the future it appears to me that I have such a jurisdiction and that it is the right order to make in the interests of justice. Nor will it colour my approach to any other “strike-out” application.

Shortly after I had prepared paragraphs [16] to [18] of this judgment and within about an hour of my notifying her that I intended to hand down judgment dealing with her application to delay sealing of the order, Ms Sheikh sent another fax, setting out five grounds why I must recuse myself (and requiring me to state whether I regarded such an application as formally made) and (without prejudice to the requirement that I recuse myself) asking me to agree to the making of five further groups of directions as to the conduct of various cases. This is an abuse of the process of the Court.

Ms Sheikh is subject to a general CRO and has not sought permission from me (or from the other supervising judges) to make these applications: nor can she in the circumstances fairly ask me to make orders without notice to the other parties affected. In the course of the hearing before me I indicated to Ms Sheikh that I expected the cases in relation to which I am the nominated judge to be conducted in accordance with the CPR. I reiterate that. Persistent failure to abide by the CPR will indeed invite a sanction: but it may not be that anticipated by Ms Sheikh.