Future Publishing Ltd v Edge Interactive Media Inc & Ors

On 26 March 2019, the late Henry Carr J considered, on the papers, an application by Dr Langdell (but not, it appears, the other Defendants) for certain relief in this action. Dr Langdell’s application notice had stated that he wanted the court to deal with the application without a hearing. The judge dismissed the application. In addition, the judge certified that the application was totally without merit. The judge then directed:

“There shall be a hearing to determine whether the court should make a civil restraint order against Dr Langdell with a time estimate of one and a half hours to be heard before a High Court Judge … on a date to be fixed.

The Respondent shall be entitled to appear at that hearing, or to file further written submissions if so advised.”

The reference in the order of 26 March 2019 to “the Respondent” was a reference to the Claimant, who had been the Respondent to the application which was dealt with by the judge. It is to be inferred that the purpose of the oral hearing directed on 26 March 2019 was to enable Dr Langdell to deal with the suggestion that the court might make a civil restraint order against him. In accordance with the order of 26 March 2019, the matter was listed for hearing on 14 October 2019.

In advance of the hearing, Dr Langdell provided the court with a bundle of documents which contained a 52-page written submission in opposition to the suggestion that a civil restraint order be made against him. The written submission was accompanied by some 80 pages of documents.

In advance of the hearing, the Claimant’s solicitor provided the court with a threepage written submission. This submission stated that the Claimant would not attend the hearing “on costs grounds”. The submission invited the court to make an extended civil restraint order against Dr Langdell. The submission stated that the Claimant did not propose to set out in detail the full procedural history of the dispute with Dr Langdell which was said to go back 25 years and during that time, the Claimant had incurred legal fees approaching £2 million. The submission then referred to certain Annexes. These were not provided to the court in paper form but were filed electronically with the court.

On Friday 11 October 2019, I was selected as the judge to hear this matter on the following Monday, 14 October 2019. No doubt, it had originally been envisaged that the hearing would be before Henry Carr J but in view of his untimely death that was of course not possible. On the Friday, I was provided with Dr Langdell’s written submission and accompanying documents and the three-page submission from the Claimant’s solicitors but no paper copy of the Annexes to that submission.

On the Friday, my clerk emailed Dr Langdell and the Claimant’s solicitors to indicate that, as I had no previous involvement in the case, I was concerned at the suggestion

In response to the email from my clerk, the Claimant’s solicitor stated that the Claimant was not in a position to be represented at the hearing and indeed the Claimant did not appear and was not represented at the hearing.

It is usually said that the possible beneficiaries from a civil restraint order are the persons who would otherwise be the subject of applications by the party restrained and also the court and other potential court users: see Attorney-General v Jones [1990] 1 WLR 859 at 865C-D and Bhamjee v Forsdick [2004] 1 WLR 88 at [8]-[10]. In the present case, a civil restraint order has the potential to be of real benefit to the Claimant. The benefit to the court and other court users is reduced by the fact that a civil restraint order provides for the possibility that the person restrained can apply to the court for permission to make an intended application and considerable time can be taken up by a judge considering whether to give such permission.

In view of the potential benefit to the Claimant of a civil restraint order and in view of the long and complicated procedural history in this case, I regret that the Claimant did not seek to assist the court, particularly when requested to do so.

Nonetheless, in order to prepare for the hearing of this matter, I carried out considerable pre-reading in order to become properly informed as to the full procedural history.

On 14 October 2019, I conducted the oral hearing directed by the earlier order. At that hearing, Dr Langdell appeared in person. He provided me with some further documents. Following the hearing, he sent me a further written submission dealing with the written submission from the Claimant, to which I have referred. Later, he provided me with a copy of a 17-page speaking note which he had used at the hearing.

Before turning to the procedural history, I will make some brief comments as to the nature of the jurisdiction which I am exercising. For present purposes, the relevant provisions as to civil restraint orders are contained in CPR PD 3C.

A High Court judge may make a limited civil restraint order where a party has made 2 or more applications which are totally without merit. Where the court makes a limited civil restraint order, the party against whom the order is made will be restrained from making any further applications in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order.

A High Court judge may make an extended civil restraint order where a party has persistently issued claims or make applications which are totally without merit. The reference to “persistently” means that there must have been at least three earlier claims or applications which were totally without merit: see Sartipy v Tigris Industries Inc [2019] EWCA Civ 225 at [28], approving earlier authority at first instance. Where an extended civil restraint order is made by a High Court judge, the party against whom the order is made will be restrained from issuing claims or making applications in the High Court or the County Court concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made, without first obtaining the permission of a judge identified in the order. An extended civil restraint order will be made for a specified period not exceeding 2 years but this period may be extended.

CPR PD3C also makes provision for a general civil restraint order but it is not necessary to refer to that provision.

The provisions dealing with limited and extended civil restraint orders refer to earlier applications or claims which were totally without merit. Various provisions of the CPR refer to a court certifying that a claim or an application was totally without merit. Where a court has so certified and, later, another court is asked to make a civil restraint order, the later court does not carry out a review of the earlier certificate in order to satisfy itself that it would have certified in the same way. The later court does not act as a court of appeal from the earlier certificate. These propositions are established by R (Kumar) v Secretary of State of Constitutional Affairs [2007] 1 WLR 536 at [79], Supperstone v Hurst [2009] 1 WLR 2306 at [35] and Courtman v Ludlam [2010] BPIR 98 at [11].

Thus, in connection with four such certificates in this case, I will not carry out a review in order to satisfy myself that I would have certified in the same way if the earlier applications had been before me. I will take a different approach to a fifth certificate (the certificate of Henry Carr J on 26 March 2019) for reasons that I will later explain.

Most of the written and oral submissions made by Dr Langdell were an attempt to persuade me that I should hold that the previous applications were not without merit. Dr Langdell even suggested that the applications which he had been made to Henry Carr J had been made on the positive recommendation of Master Rowley. As I have explained, in relation to four of the five certificates, it is not appropriate for me to reopen the question whether those certificates were appropriate. As regards the certificate of Henry Carr J on 26 March 2019, which was the principal focus of Dr Langdell’s submissions, I will explain later the course I will adopt in relation to that certificate.

The procedural history is lengthy and complicated. Although I believe that I have considered it thoroughly, I will summarise matters in a way which will suffice for the purposes of giving my reasons for making the order which I will make.

Although there were earlier proceedings between Future Publishing Ltd (“Future”) and Dr Langdell, I can begin this history with the present proceedings which were

On 7 July 2011, Proudman J made an order to give effect to her earlier judgment. She declared that the CTA had been terminated on 20 August 2010. She ordered all three Defendants to pay Future’s costs of the action on the indemnity basis, such costs to be the subject of a detailed assessment if not agreed. She further ordered the Defendants to pay £340,000 on account of costs within 28 days of her order.

On 7 February 2012, Lewison LJ refused the Defendants permission to appeal against the order made by Proudman J. He ordered the Defendants to pay Future’s costs assessed at £36,500.

In 2012, there were proceedings before the Intellectual Property Office (“the IPO”) between Future and EIM. The proceedings were dealt with by a Hearing Officer, Mr Landau, who gave a written decision dated 25 July 2012. The Hearing Officer described Dr Langdell as the controlling mind of EIM. Without going into any detail (as some of the detail may be the subject of judicial review proceedings to which I refer below) there was an issue as to an alleged assignment of a trade mark which had been the subject of the CTA. The case for EIM put forward by Dr Langdell raised an issue about an alleged obligation on Future to assign that trade mark to EIM pursuant to clause 2.8 of the CTA and in particular an issue about an alleged power of attorney which clause 2.8 conferred on EIM (or a director or duly authorised officer of EIM to whom the power was delegated) to effect such an assignment.

The Hearing Officer decided that the dispute before the IPO should be resolved in favour of Future and against EIM. In his written decision, he considered three points. The third point concerned the power of attorney and whether the power could still be exercised notwithstanding the termination of the CTA. He held that the power could no longer be exercised in view of the termination of the CTA.

Thereafter, Future applied to Proudman J for an order varying her order of 7 July 2011 so as to substitute the date of 2 July 2010 for the date of 20 August 2010 as the effective date of termination of the CTA. By this stage, Future plainly took the view that it would be better to have the earlier date as the date of termination to assist Future to counter arguments being put forward by EIM, through Dr Langdell, as to the continuing effect of the power of attorney. On 15 January 2013, Proudman J dismissed the application, holding that she had no power to change the date either under CPR 3.1(7) or under the slip rule: see [2013] EWHC 339 (Ch). She ordered Future to pay the Defendant’s costs of the application to assessed on the standard

EIM appealed against the decision of the Hearing Officer. Its appeal was to the Appointed Person under section 76 of the Trade Marks Act 1994. EIM contended that the Hearing Officer had been wrong on all three of the points he had decided. The appeal came before Geoffrey Hobbs QC as the Appointed Person. He gave a written decision on 28 May 2014. He recorded that EIM had dropped its challenge to the second point decided by the Hearing Officer but continued to challenge the first and third points he had decided. The Appointed Person dismissed the challenge to the first such point. He then held that because EIM had failed on the first point, the appeal failed and it was not necessary for him to deal with the third point which he said was “not clear-cut from a legal and factual point of view”.

After the Appointed Person gave his ruling, Dr Langdell on behalf of EIM applied for the matter to be re-opened and, on 4 June 2014, the Appointed Person provided a written addendum to his earlier decision. In the addendum he gave his reasons why it was not appropriate to re-open his earlier decision.

Reverting to the present proceedings (which were brought by Future in 2009 and in which Proudman J gave judgment on 13 June 2011), there appear to have been a number of hearings before Master Rowley, a Costs Judge. I was shown an order made by Master Rowley on 26 April 2016 which refers to a reserved judgment of the Master of 18 April 2016, but I have not seen that reserved judgment. In his order of 26 April 2016, the Master dismissed two applications which had been made by the Defendants. He ordered the Defendants to pay Future’s costs of those applications, assessed in the sum of £4,250. He directed the Defendants to pay the sum of £376,500 previously ordered by Proudman J and by Lewison LJ by paying £276,500 directly to Future and by paying £100,000 to the Court Funds Office. He also directed the parties to serve Notice of Commencement of assessment of those costs.

On 10 November 2016, EIM and Games brought new proceedings against Future. The claims in those proceedings were described in detail in a judgment given by Master Clark on 9 May 2017: see [2017] EWHC 912 (Ch). She referred to four separate parts to the claims put forward. One of the four parts sought a declaration as to the continued availability of the power of attorney referred to above. The Master referred to the decisions of the Hearing Officer and of the Appointed Person. She held that the decision of the Hearing Officer gave rise to a cause of action estoppel which prevented EIM and Games contending that the power of attorney could be relied upon in the various ways in which they sought to rely upon it. She struck out their claim for declaratory relief in that respect. She made no order for costs and she gave EIM and Games permission to appeal in relation to her ruling as to her decision in relation to the power of attorney.

I have seen a transcript of a hearing on 6 November 2017 before Master Rowley, attended by Dr Langdell acting for all three Defendants in those proceedings. I was not shown any order made by Master Rowley following that hearing and it may be that no order was made.

EIM and Games appealed the decision of Master Clark in relation to the power of attorney point and the appeal was heard by Barling J who gave judgment on 15 November 2017: [2017] EWHC 3122 (Ch). He dismissed the appeal, agreeing with the Master that there was a cause of action estoppel resulting from the decision of the Hearing Officer, which was left undisturbed by the Appointed Person, who declined to rule on the point. Barling J ordered EIM and Games to pay Future’s costs summarily assessed at £22,816.

On 26 April 2018, David Richards LJ refused EIM and Games permission to appeal from the order of Barling J; such an appeal would have been a second appeal. EIM and Games then applied to David Richards LJ asking him to reconsider his decision. On 10 August 2018, the court wrote to Dr Langdell on behalf of EIM and Games stating that David Richards LJ had considered the matter and had determined that there was no reason for him to reconsider his decision. I note that this letter from the court stated that Dr Langdell had made a similar application to Barling J after he had given his judgment and that Barling J had rejected the application and certified that it was totally without merit. I have not seen Barling J’s order which contained that certificate.

On 13 September 2018, EIM and Games brought proceedings in the Chancery

On 2 November 2018, the three defendants in the 2018 proceedings applied to strike out the proceedings. The court informed the defendants in those proceedings that the strike out application would be heard on 14 October 2019.

On 16 November 2018, Dr Langdell appeared before Henry Carr J seeking an order vacating the orders for costs made by Proudman J on 7 July 2011 and making a new order as to costs specifying what sums the Defendants were to pay before commencement of detailed costs assessment. An alternative form of order was also sought by Dr Langdell. The application was dismissed. Henry Carr J’s order of 16 November 2018 stated that the judge had given an unreserved oral judgment but the order set out short written reasons for his decision. The judge said that he had no jurisdiction to make the order sought and even if he had jurisdiction he would not make that order. The judge certified that the application was totally without merit.

On 19 March 2019, Master Rowley dismissed a further application by the Defendants in the present proceedings. The application appeared to be somewhat similar to the application that was dismissed by Henry Carr J on 16 November 2018. The application to Master Rowley had been made on 14 June 2017 and then adjourned pending the application to Henry Carr J and then restored by the Defendants after the order of 16 November 2018. Master Rowley dismissed the application on jurisdictional grounds and because of what he said was the dubious nature of the order sought. He certified that the application was totally without merit.

On 15 February 2019, Dr Langdell applied for a further order in relation to the judgment of Proudman J and in respect of the argument, which was still being pursued by the Defendants, that EIM continued to have the benefit of the power of attorney pursuant to clause 2.8 of the CTA. On 26 March 2019, Henry Carr J dismissed the application on the papers and gave short reasons for his decision. He referred to the earlier hearing (on 16 November 2018) when Dr Langdell had appeared before him and he stated that he had dismissed that earlier application and certified that it had been totally without merit. The judge added that Dr Langdell had spent nearly 8 years trying to appeal, overturn and avoid the ruling of Proudman J. In his reasons, Henry Carr J referred to nine procedural steps in particular in support of his comment that Dr Langdell had spent nearly 8 years seeking to avoid etc the ruling of Proudman J. Henry Carr J added that the application which he dismissed on 26 March 2019 was a collateral attack on a decision of the IPO made in 2012 and was one of several abuses of the process of the court and other vexatious conduct of Dr Langdell. Finally, Henry Carr J said that Dr Langdell had not paid any of the numerous costs awards made against him since 2011. The judge then certified that the application was totally without merit. It was in his order of 26 March 2019 that the present hearing was directed to take place.

Following Master Rowley’s order of 19 March 2019, the Defendants asked the Master to reconsider that order. The Master considered that request on 25 July 2019 and dismissed the request for reconsideration. He gave written reasons for his decision explaining in some detail his conclusions as to what was to happen in relation to the orders for costs in these proceedings. He certified that the request for reconsideration was totally without merit.

On 26 July 2019, EIM and Games acting through Dr Langdell issued a judicial review claim form in the Administrative Court. The claim form appears to have named three defendants, the IPO, Mr Hobbs QC and the Government Legal Department and stated that Future was an interested party. The claim concerned the effect of the decision of the Hearing Officer and the Appointed Person and sought to contend that EIM continued to enjoy the benefit of a power of attorney pursuant to clause 2.8 of the CTA.

On 3 September 2019, Dr Langdell acting on behalf of EIM and Games served a notice of discontinuance in relation to the 2018 proceedings. The notice did not state that it discontinued all of the claim in those proceedings but only part of the claim. The notice stated that the 2018 proceedings had always been intended to be by way of an application for judicial review and sought to blame the court for the form in which the 2018 proceedings had been issued.

On 14 October 2019, the defendants in the 2018 proceedings appeared by counsel before me. Dr Langdell was also present to deal with the question as to whether the court should make a civil restraint order against him. The parties disagreed as to whether the 2018 proceedings had been discontinued and whether the defendants’ application to strike out the 2018 proceedings had been listed for hearing. I had not understood before coming into court on 14 October 2019 that I would be asked to deal with the 2018 proceedings. After considerable discussion of the position, Dr Langdell on behalf of EIM and Games consented to an order which made it clear that the 2018 proceedings were discontinued. I made an order accordingly. It was not possible to

The papers before me also contain information about trade mark proceedings between these parties in the United States. For present purposes, it is not necessary for me to refer to those proceedings.

Master Rowley has certified that applications by Dr Langdell were totally without merit on two occasions – 19 March 2019 and 25 July 2019. As I explained earlier, it is not appropriate for me to consider whether those certificates were justified but I make it clear I cannot see how it can be said that the certificates were other than fully justified. In addition, Henry Carr J certified that applications were totally without merit on two occasions – 16 November 2018 and 26 March 2019. As regards the certificate of 16 November 2018, it is not appropriate for me to question that certificate.

The certificate of 26 March 2019 might conceivably be in a different position. Dr Langdell told me that as the order of 26 March 2019 was on the papers he had requested that he be allowed to renew his application at an oral hearing but he had been denied an oral hearing. No application to renew the application of 15 February 2019 was listed for hearing by me on 14 October 2019. At the hearing on that date, I did not consider that it would be a good use of court time to go into the question as to whether Dr Langdell had been entitled to renew his application at an oral hearing, when he had asked for the application to be dealt with without a hearing, and whether Dr Langdell had in fact subsequently asked for an oral hearing. In any case, I did not think that Dr Langdell had any real prospect of showing that he should obtain the relief sought by the application of 15 February 2019.

It might be appropriate to take a different view as to the reasons given by Henry Carr J, after considering the matter on the papers, which led him to certify that the application of 15 February 2019 was totally without merit. I was provided by Dr Langdell with lengthy written submissions and further oral submissions to the effect that the judge was wrong to say what he had. Having considered everything that Dr Langdell has written and said to me, I formed the impression that it might be possible to quarrel with some of the ways in which Henry Carr J had expressed the matter, although I think it likely that I would have reached the same overall conclusion that that application was indeed totally without merit.

Nonetheless, in view of the possibility that Dr Langdell might have been entitled to an oral hearing in respect of the certificate that the application of 15 February 2019, dismissed on 26 March 2019, was totally without merit and in view of the fact that if I were to give a fully reasoned judicial decision on that question, the matter would take a disproportionate amount of time, I will put the certificate of 26 March 2019 on one side and not count it against Dr Langdell.

Although the certificate of Barling J to which I have referred was not referred to at the hearing on 14 October 2019, I have become aware of it when carrying out a further trawl through the papers following the hearing.

Accordingly, the position is that I can now take into account four certificates that applications made by Dr Langdell were totally without merit.

The result of the above is that I have jurisdiction to make a limited civil restraint order as Dr Langdell has made two or more applications which were totally without merit. I

It is clear from the above history that Dr Langdell has not been prepared to “take no for an answer” in relation to his contention that EIM continues to enjoy a power of attorney pursuant to clause 2.8 of the CTA. EIM and Games have a pending application for judicial review and an extended civil restraint order made by me at this stage will not prevent Dr Langdell pursuing that pending application. However, if that application were to fail, what is the risk of Dr Langdell making a further claim or application in relation to his case about the power of attorney? At the hearing, Dr Langdell sought to re-assure me that if the judicial review was not decided in favour of EIM and Games then that would be the end of the matter. However, I am not reassured. Although I have not previously in this judgment emphasised this point, the various judgments to which I have referred make many references to the fact that Dr Langdell has been found to have been dishonest and unreliable in relation to his actions and the conduct of proceedings. If the application by EIM and Games for judicial review were to be dismissed, then that might reduce the risk that Dr Langdell would cause a further claim or application to be made. Nonetheless, I consider that, in the light of the number of unsuccessful applications which have been made in support of the contention that EIM continues to have the benefit of a power of attorney, there is a real risk that Dr Langdell will make further inappropriate applications in support of the same contention, in the absence of a civil restraint order. This conclusion provides sufficient reason for me to make an extended civil restraint order.

In addition, there is an appreciable risk, absent a civil restraint order, that Dr Langdell will continue to make inappropriate claims and applications in relation to the costs orders which have been made against the Defendants in these proceedings. On its own, that risk would have persuaded me to make, at least, a limited civil restraint order against Dr Langdell but that risk will be covered by the extended civil restraint order to which I have referred.

Accordingly, I will make an extended civil restraint order against Dr Langdell. It may take a matter of days for that order to be drawn up as it will be necessary for the Chancellor of the High Court to nominate a judge to be named in the order. In the interval before the order is drawn up and perfected, I hereby make an interim order in the terms set out in paragraph 3 of CPR PD3C which will have immediate effect and where the nominated judge will be myself.

There is one further point to mention. The hearing before me was directed on 26 March 2019 for the court to consider whether to make a civil restraint order “against Dr Langdell”. This direction did not refer to EIM and Games. However, the applications which have been made by Dr Langdell have sometimes been on behalf of

Newey J’s comments about “the real party” were cited with approval in Sartipy v Tigris Industries Inc [2019] EWCA Civ 225 at [32].

My conclusion is that I should make an extended civil restraint order in the usual terms against Dr Langdell. That order will continue in force for two years from the date of this judgment.