Hall & Anor v Elia & Anor

The first applicant to this application is Mrs Elia and the second applicant is Mr Elia, who are mother and son. Mr Elia was bankrupted on 27 April 2011 (based on a statutory demand of some £8.9 million) although he has been discharged, and his trustee in bankruptcy is now, by succession, the first applicant in the bankruptcy proceedings Mrs Michaela Hall, (whom with her predecessors I will call “the Trustee”). The proceedings have a long and procedurally complex history; there have been two claims and there have been many applications. They all arise out of the purchase in 2009 by Mr Elia of a long leasehold interest in 29 Rutland Court, Knightsbridge, SW7 (“the Property”) for just under £4m with the help of a mortgage in the region of £2.8m from Coutts Bank PLC. Mr Elia remains the legal owner and the Property is now (say Mrs Elia and Mr Elia) worth about £7.5m. Mr Elia (but not Mrs Elia, who lives in Cyprus) continued to occupy the Property until a warrant of execution was enforced on 26 April 2016.

Mr Elia remained the registered proprietor of the long leasehold interest in the Property but he and Mrs Elia claimed that, prior to being made bankrupt, he had assigned his interest in the Property for £25,000 to Mrs Elia pursuant to a purported Deed of Assignment dated 30 July 2010, or alternatively a purported Deed of Assignment dated 28 February 2010, to which I shall refer compendiously as “the Deed of Assignment”. The Registrar, correctly in my view, concentrated on the 30 July Deed of Assignment for the reasons he gave in [123]-[126] of his judgment. Mrs Elia was also a beneficiary of a prior charge over the Property (“the Charge”), which Mrs Elia and Mr Elia claimed secured a sum “well in excess of” £950k, in fact about £1.3m.

The Trustee brought what has been called “the Office Holder Claim”, claiming that the Deed of Assignment was a sham or alternatively should be set aside pursuant to s. 339, s. 340 and/or s. 423 of the Insolvency Act 1986. She claimed that as the Trustee she was entitled to the entirety of the beneficial interest in the Property, subject to the company applicant’s entitlement to 35.5% of the Property. The company was a joint applicant because of the s.423 application, in circumstances where the company claimed, as the Trustee accepted (by settlement of any such adverse claim upon the Property made by the company), that some of the moneys used by Mr Elia to purchase the Property emanated from the company.

Mr Elia was an additional defendant in circumstances where he claimed to occupy the Property under an arrangement with his mother. His personal role in the proceedings was, so Mr Registrar Jones found, limited to the issues of possession and sale, if the Trustee succeeded in her claim against Mrs Elia.

On 9 November 2015, having on 24 June 2015 found that Mrs Elia was debarred from defending the claim as she had failed to comply with various conditions, the Registrar refused the final one of her many applications for relief from sanction and found that the Deed of Assignment was a sham so that the beneficial interest was vested in the Trustee, subject to the company’s interest. He also held that he would otherwise have set aside the Deed of Assignment even apart from sham as it constituted a transaction at an undervalue and was a preference. He further decided that on the balance of probabilities the £25,000 purported consideration was not paid for the reasons given in [66] and [133]-[141] of his judgment. He held that the Charge was valid, but that it only secured a loan of €50,000 plus interest.

His Order of 9 November 2015 was as follows,

I dismissed Mr Elia’s applications for a stay on 10 March 2016 although I granted Mrs Elia and Mr Elia a short extension of time (until 5 April 2016) staying the warrant of execution of possession to allow them to remove their belongings from the Property. I am told that Hamblen LJ refused permission to appeal my order at an orally renewed application on 18 April 2016 but extended (by an order made on paper dated 5 April 2016) the time for Mr Elia to leave the Property until 26 April 2016.

The order dated 18 December 2015 of Mr Casement QC (sitting as a deputy judge of this Division) refusing a stay has also been the subject of an application for permission to appeal. It was erroneously filed in the High Court. I understand that Hamblen LJ granted permission to appeal out of time but refused an application to suspend the execution of the writ of possession until hearing of this application. He also, again I believe on 18 April 2016, refused permission to appeal the order of Mr Casement QC.

Mr Elia made certain applications directed at suspension of the execution of the writ of possession but they were unsuccessful and the writ has now been executed and Mr Elia has had to leave the Property. I should observe that Warren J dismissed such an application by Mr Elia on 25 April 2016 recording that it was “totally without merit” and on 26 April 2016 Hamblen LJ also dismissed Mr Elia’s latest appellant’s notice, seeking to appeal an order of Barling J dated 4 April 2016 (which I am told was also seeking a stay) recording that it was “totally without merit”.

I also in March 2016 (I believe on or about 23 March 2016) refused to grant permission to appeal the Registrar’s debarring orders, debarring Mrs Elia from defending the Office-Holder Claim. I also orally refused to grant her permission to re-open appeals under CPR 52.17 of Registrar Jones’s Orders of 14 May 2015 and 29 July 2015.

At the time of the purported Deed of Assignment the Property was subject to a mortgage in favour of Coutts Bank, at that stage in the sum of around £3.1m, and an interim charging order in favour of the landlord for unpaid service charges. A possession order was made at Coutts’s suit in the County Court in 2012 and this meant that the whole of the amount outstanding under the mortgage on the Property became due. By agreement the County Court required Mrs Elia to pay instalments towards this of £21,400. The Registrar however by an order of 3 February 2015 required Mrs Elia to pay only the contractual amount that would have been due under the mortgage, ignoring the larger instalments under the possession order. He did this in order to ensure that the mortgage was kept up to date according to its contractual terms.

The test for granting permission to appeal is set out in CPR 52.3(6), namely that the court considers either that the appellant has a real prospect of success or there is some other compelling reason why the appeal should be heard. The criterion for the first part of this is not one of probability (or otherwise the appeal would effectively be determined on the grant of permission to appeal) but of eliminating proposed appeals which have an absence of reality of sucess.

The applications before me today are the applications lodged (I believe- see below) on 30 November 2015 and 18 December 2015 respectively of each of the respondents for permission to appeal Registrar Jones’s decisions,

It is accepted that if I were to accede to the applications for permission to appeal there would have to be a retrial.

Mr Russen QC submitted that the consequence of Mrs Elia being debarred from defending was that she was unable to make any submissions upon either the evidence or the law. He relies on the Court of Appeal’s two decisions in Thevarajah v. Riordan [2015] EWCA Civ 14 and Civ 41.

Andrew Sutcliffe QC was one of the judges at first instance appealed against in Thevarajah. He held that relief from the sanctions and debarring order imposed by Henderson J and Hildyard J respectively should be granted to the defendants, but the Court of Appeal overturned that judgment. Mr Sutcliffe QC said,

“I consider that, notwithstanding the fact that they are currently debarred from defending the claim and subject to the court’s inherent jurisdiction to regulate its own process, the Defendants are entitled at trial to require the Claimant to prove his claim, to cross-examine and to make submissions.”

But the Court of Appeal (Richards, Aikens and Davis LJJ) said (at [38]),

“…we are troubled by the deputy judge’s observation that even if the respondents remained debarred from defending the claim they would be ‘entitled at trial to require the Claimant to prove his claim and make submissions’…The cases to which he referred in that connection, namely Culla Park v. Richards [2007] EWHC 1687 and JSC BTA Bank v. Ablyazov (No 8) [2013] 1 WLR 1331, do not appear to us necessarily to support so sweeping a proposition. This issue, however, will be a matter for decision by the judge who hears the trial; and having put down a marker in relation to it, we think it better to say no more on the subject at this stage.”

Then the matter came on before Sales J for directions before trial. He ordered that there should be a difference between liability and quantum (the barred parties being allowed to dispute quantum), although Mr Bailey for the appellant said that the respondents (see [25] of the Court of Appeal judgment),

“…cannot do anything. They are not in a position to contest anything that we say; they are not entitled to participate. However, that does not mean, of course, I can have any order I want, I am going to have to demonstrate to the court on my pleadings and on my evidence that I am entitled to the relief that I seek….”

Tomlinson LJ, with whom Newey J and, significantly (as he was in the Court of Appeal in the appeal against the judgment of Mr Sutcliffe QC) Richards LJ, agreed, said at [26], “Mr Bailey’s first instincts were in my view correct… ”.

The second Court of Appeal judgment was an appeal from David Donaldson QC, sitting as a deputy judge of this Division. It is important that there was no appeal from the decision of Sales J, (see [30] of the Court of Appeal judgment), although it is plain that the Court of Appeal did not agree with it. Tomlinson LJ set out the position, reversing the decision of Mr Donaldson QC,

“[33]…the Deputy Judge also referred to the Defence and Counterclaim as having been “erased” and said that “any statement dependent for its vitality on the continued existence of the now erased Defence and Counterclaim cannot be invoked to supply, cure or support any claim not, or inadequately advanced in the Particulars of Claim.” I do not entirely understand the ambit of this approach but I do not agree with the notion that the Defence had for all purposes ceased to exist. What had happened is that the Respondents had been debarred from defending. To that extent the Defence could not be relied upon by the Respondents, but it would be absurd if the document could not be relied upon by the Claimant as indicating the ambit of the dispute. Were that not the case, matters which were never in issue because of admissions in the pleadings would suddenly become contentious, with the extraordinary and perverse effect that the burden on the claimant at trial would be increased. The obverse would equally be true- a defendant may by virtue of being debarred from defending avoid the consequences of his admissions, thereby casting upon the claimant a burden which may, in reliance upon the admission, have become more difficult or even impossible to discharge. I agree with Mr Smith [of counsel]’s happy observation that “a defence will have left a lasting legacy on the statements of case as a whole. By virtue of what is said in a defence, the content of any reply, or the decision not to rely upon one, will have been affected. Further if the defence indicates to a claimant that the parties are in agreement as to what they disagree about, it will impact upon any consideration of whether to amend the particulars of claim to clarify anything that might be said to have been unclear.” It might also for example have been necessary to look at the Claimant’s Reply and Defence to Counterclaim which would most likely be difficult to follow without resort to the pleading to which it was responsive.

[34] It follows that I do not consider that the Deputy Judge was precluded from having regard to the Defence and Counterclaim if that document helped him to understand the ambit of the dispute between the parties. However I consider that the Particulars of Claim were in any event sufficiently clear.”

The Registrar found (see [15] of his judgment) that whilst Mrs Elia could not contest the claim, the Trustee still had to prove her case on the balance of probability; in doing so, Mrs Elia’s Defences were not erased and did not have to be ignored. They were potentially relevant when considering whether there were any admissions and in identifying areas of disagreement. The position was different with regard to evidence. The Trustee’s case had to be advanced upon the evidence filed in support of the claim.

The Supreme Court’s decision on the first appeal in Thevarajah ([2015] UKSC 78; [2016] 1 WLR 76) was given on 16 December 2015 by Lord Neuberger, with whom Lord Mance, Lord Clarke, Lord Sumption and Lord Hodge agreed. Lord Neuberger said (at [11]) that but for a feeling of grievance for the appellants he would have simply said that the appeal should be dismissed for the reasons given by the Court of Appeal at [23]-[32]. The decision of the Supreme Court was that relief from sanctions should not be given without a change of circumstances.

Mr O’Mahony submitted that the remarks of the Court of Appeal in Thevarajah (first decision) were obiter and the extent of the operation of the debarral was a matter for the trial judge.

Mr O’Mahony points out that the comments were not addressed when the Court of Appeal’s decision was unsuccessfully appealed to the Supreme Court at [2016] 1 WLR 76. However, the Supreme Court did not need to address them. In any event, if the Supreme Court had disagreed I would have expected them to say so. Moreover, although the remarks were obiter in the sense that they did not form part of the decision on the appeal from Mr Sutcliffe QC (see [29]), the Court of Appeal did “put down a marker” in relation to them and I would be foolish to ignore what they said. Indeed it would be a brave puisne judge who would ignore such a marker. I would always start from the proposition that the Court of Appeal is more likely to be right than I am.

And it is instructive to note that Mr Collings QC (without demur from Mr Fenwick QC) (and indeed Mr Hill on behalf of Mrs Elia in the present case) declined to make submissions after orders debarring his clients had been made in Apex Global Management Limited and another v. FI Call Limited and Others [2015] EWHC 3269 (Ch); [2015] WL 6757849, heard by Hildyard J: see [3], [67], [68] and [70] of his judgment. See also Mr Fenwick’s stance in an earlier version of the case that went to the Court of Appeal, HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v. Apex Global Management Limited and Another [2014] EWCA Civ 1106; [2014] WL 3671752, and see [85] of Arden LJ’s judgment, with which the rest of the Court of Appeal agreed.

Mrs Elia was therefore debarred from disputing any of the respondents’ claims in the proceedings. Mr O’Mahony rightly said that would not prevent Mrs Elia from pointing out a manifest error in the judgment. However, he did not point to any such error, despite having time between the last hearing on 23 March 2016 and this one (on 3 May 2016) to find one. Instead, he dipped into the bundles attempting to show that things might have come out differently on the evidence. However Mrs Elia was debarred from adducing or relying on any evidence.

Most of Mr O’Mahony’s submissions related to the Charge, which was in any event problematical for Mrs Elia. The contemporaneous documentation shows that the Charge constituted a case of further lending because if the Charge had purported to cover past advances there would have been a preference. Thus the Registrar was correct in his judgment at [40]-[45], leaving aside the lack of definition of the expression “the Instalments” and leaving aside the debarring order. There is nothing to show that the Registrar was wrong in his finding that the Lending Schedules relied on by Mrs Elia and Mr Elia were loaded to achieve a higher quantum than would otherwise be justified. Accordingly the Registrar’s conclusion that the Charge was valid but secured only a loan of €50,000 together with interest cannot be impeached.

Again, in any event and leaving aside the debarring order, there is nothing in [65]-[82], [111] or [122]-[150] of the Registrar’s judgment which can be overturned. The construction of the Deed of Assignment constituting an estoppel by deed is obvious. Mr Hill tried to effect rectification of the recitals but, correctly, to no avail. Again in any event, I find that the Registrar’s reasons for finding that the £25,000 was not paid (see [66] of his judgment) cannot be appealed.

Mr Elia (but not Mrs Elia) needs permission (if I am right about the dates when the notices of appeal were lodged- I am confused by the very many appeals in this case) to lodge his notice of appeal out of time. As it does not seem that there was a roundly expressed objection, I am prepared to give such permission, although it does seem to me that Mr Elia was riding on Mrs Elia’s coat-tails in appealing at all. The issue is therefore whether he should get permission to appeal.

I agree with the Registrar that Mr Elia has no standing to address the court on the issue of sham and related issues but only on the issues of possession and sale. The Trustee received claims from Mrs Elia asserting a beneficial interest in the Property and the application asked for the Deed of Assignment to be declared void and/or set aside on the grounds of sham. If the Trustee succeeded in obtaining such relief, the question of an order for possession and sale became live and Mr Elia became an active party to the application. He did so in reliance on his asserted contractual and statutory rights of occupation. He has abandoned his claim to oppose the Trustee’s reliance on s.14 of the Trusts of Land and Appointment of Trustees Act 1996.

The application made by the applicants was against both respondents, a matter which Mr Elia says leads to it being “his territory”. He pointed to the fact that the Particulars of Claim do not differentiate between them. However, I find that Mr Elia is not permitted, as the Registrar found, to address the court other than on the issues of possession and sale. I say this for two reasons.

First, because by the Order of 14 May 2015 (at [15]) the Registrar struck out Mr Elia’s defence except in so far as it related to possession and sale. That part of the Order of 14 May is not under appeal; at least, I have heard no argument in relation to it. Secondly, because Mr Elia is theoretically obliged, on behalf of the creditors of his estate, to say (in so far as he is obliged to say anything) that the transaction should be set aside. The only person with a voice in the matter to the contrary is Mrs Elia, because Mr Elia’s interest vested in his trustee in bankruptcy, including the chose in action to say that the transaction was or was not a sham. Mrs Elia, and not Mr Elia, made the claim in the bankruptcy.

The Registrar found that, as the Deed of Assignment was a sham, Mr Elia remained the beneficial owner of the Property. Mrs Elia could not have conferred any relevant rights upon Mr Elia so that his interest in the Property vested in the Trustee under s.306. Mr Elia raised various matters before me to the effect that Mrs Elia was estopped from denying that she was his landlord, but as he did not raise any such matters in his pleadings I need not consider them.

Mr Elia asserts,

The hearing of all Mrs Elia’s and Mr Elia’s applications (including the stay, relief from sanction and the claim to reopen appeals under CPR 52.17) were listed for one day, which I found was a ludicrous under-estimate, bearing in mind the complexity of the case. It took me longer than that to understand, let alone evaluate, the claims. However, in fact all the applications by Mrs Elia and Mr Elia lasted some eight days, which was by contrast far too long. Although I wanted to allow Mr Elia, whether giving instructions to counsel on behalf of Mrs Elia or addressing the court on his own behalf, sufficient time, I plainly had to guillotine the parties in order to ensure that the present appeal was disposed of within a day. Mr Elia may not therefore have been able fully to address (ii), (iii) and (iv) above other than in his skeleton argument.

However I note that (ii) is in practical terms a re-run of issues litigated in the recusal application which Mr Elia, through his counsel, apologised for making and did not appeal. Mr Elia attacked everyone who took any position against him. He accused Mr Russen QC of deliberately misrepresenting the facts, (see [182]-[187] of the Registrar’s judgment), so too Miss Addy, the Trustee and Fieldfisher. He also attacked the Registrar. Doubtless he will criticise me too, although I make it clear that I make no finding adverse to him on that ground. I well understand that he wanted, however wrongly, to protect his home. But I do not find that the Registrar was biased or pre-judged the case. On the contrary, he listened to Mr Elia punctiliously and with courtesy. I find that the matters raised by Mr Elia in his Amended Grounds of Appeal (date-stamped as received by HMCTS on 1 March 2016) in this regard are taken out of context.

As to (iii), I do not think that, save as dealt with in this judgment, it is sufficiently set out, even in Mr Elia’s Amended Grounds of Appeal. In any event, I find that the Registrar was right.

There is the question of costs at (iv). I note that although the Registrar ordered that Mr Elia pay £43,200 in costs by 4 pm on 7 December 2015, he has not paid anything at all, not even what he alleges is a reasonable amount. Mr Elia says that there was “no adequate or satisfactory evidence” before the Registrar to justify the sum, but he did not make this good. I have read Mr Elia’s Amended Grounds of Appeal and skeleton argument for this hearing carefully but I find there is no real prospect of success in arguing that the Registrar strayed outside the generous discretion given to a judge when deciding costs. On the contrary, he was well within the permissible range.

Mr Elia relies on the fact that (as he said on that day at p. 30 of the transcript) the applicants,

“turn up with an army of people and sometimes we think they have presidential elections, the people they bring to the court.”

The Registrar said that it was for Mr Elia to decide whether or not he wished to apply to amend his case, but Mr Elia replied,

“I have a defence…I can add on it, I can submit a witness statement. You can give me time to submit a witness statement, but definitely I do not have to apply and these gentlemen they turn up and [incur] all sorts of costs.”

However, it seems to me that because of the complexity of the matter, the volume of the applications brought by Mrs and Mr Elia and Mr Elia’s attitude to the bankruptcy it was entirely reasonable for the applicants to have a QC and a junior attend court so that there is no real prospect of success on ground (iv), even if ground (iv) goes to anything other than the issue of costs.

In any event, Mr Elia relied principally on (i), that the Registrar should not have tried the case against Mr Elia before judgment was given against Mrs Elia. Mr Elia says that there was a “scheme to get me out of the flat” and he seeks to make (i) good on a number of grounds.

First, he relies on an Order of Registrar Jones dated 18 June 2014 which required him to file a defence. He said he had no choice but to defend himself because of the way the Points of Claim were formulated (that is to say, against both appellants) but then his defence was struck out for no apparent reason. The reality of the matter is that the reason his defence was struck out was explained to him but he just did not accept it.

Secondly, he said he had no time to prepare, that this was not fair or just and he was cross-examined in an area which he could not answer. There was no Case Management Conference. I deal with this by implication later on in this judgment.

Thirdly he relied on the transcript of the hearing on 13 May 2015 where Registrar Jones said (in response to an allegation against him by Mr Elia),

“I of course mention it in the context where you actually have no part to play in these proceedings unless and until I should make a possession order…”

Fourthly he relies on the Order of Registrar Jones of 14 May 2015 at [16],

“By no later than 4pm on Thursday 25 June 2015 Mr Elia shall file and serve any witness statement…upon which he wishes to rely in opposition to any future Order for possession and sale of the Property should such Order otherwise be made in the Office Holder Claim… ”

and also on the transcript of that day’s proceedings (at p.27),

“MR REGISTRAR JONES: …Mr Elia, you are relevant and having regard to this, it is plain that your mother, subject to any decision that I make with regard to its contents, can put in such defence as she thinks appropriate. In regards to you, however, your position is, as we have established and has been established for a long time since the previous judge’s judgment in the High Court [he is referring I assume to the judgment of Andrews J in the company applicant’s claim] and the judges in the Court of Appeal [also in the company applicant’s claim], your position is that you cannot defend this claim unless and until a possession order is going to be made. Plainly, if no possession order is going to be made, you do not have to defend the claim. As and when it is made, the only reason why you can “defend” the order for possession is because you might have some ground due to the fact that you are living in the property to object to a possession order.”

Fifthly, he relies on the recitals in the Order of 18 September 2015,

“AND UPON the Second Respondent appearing in person and not being permitted to act for the First Respondent

AND UPON the Second Respondent confirming for the purposes of his defence to the Office Holder Claim that he is available to attend Court on Thursday 24^th September and Friday 25^th September 2015”

I do not think that Mr Elia’s appeal has any real prospect of success (let alone that there is some other compelling reason why the appeal should be heard) for the following reasons, which are independent of each other,

Mr Elia’s claim to have a rolling two year tenancy agreement (a claim incidentally raised at the last minute: see [177]-[181] of the Registrar’s judgment) could not be accepted in the light of his contradictory statements. The Registrar concluded that, even if the Deed of Assignment was not a sham, Mr Elia had no tenancy or licence other than a family arrangement with Mrs Elia to occupy which would not attract security of tenure.

I therefore refuse permission to appeal both to Mrs Elia and Mr Elia.