Ursula Riniker v Mostapha Al-Turk

With the permission of Martin Spencer J, the appellant appeals from the judgment of Her Honour Judge Baucher, who, by order dated 6 April 2022, struck out her appeal from the order of Deputy District Judge Morley, dated 7 November 2019, by which an interim charging order was made final and permission for which had been granted by order dated 18 September 2020 (‘the Baucher Order’). The nature of the substantive appeal need not be set out in this judgment. As they did at all hearings below, both the appellant and the respondent appeared in person.

The Baucher Order recited the fact that the appellant had not complied with certain paragraphs of an order for directions which had been made, following a hearing, by HHJ Luba KC, dated 4 February 2021 (‘the Luba Order’). By that order, the following requirements had been imposed, amongst others:

The appellant had not appealed from the Luba Order, but, by four-page e-mail dated 15 February 2021, had requested that certain parts of it be set aside, under CPR 3.3(5)(a), on the basis that they had been made after the hearing, of the court’s own motion, and were said to lack substantive justification for reasons which she set out. Within that e-mail, she asked that her application be considered at the full hearing of her appeal. No application had been made, formally, pursuant to Part 23 CPR and, at the time of hearing before HHJ Baucher, no part of the Luba Order had been set aside.

HHJ Baucher considered the appellant to have been in breach of the Luba Order. Having invited an oral application for relief from sanctions, which the appellant declined to make, of her own motion HHJ Baucher considered the principles set out in Denton v TH White Limited [2014] 1 WLR 3296, referring also to Patel v Mussa [2015] EWCA Civ 434, and refused relief from sanction, going on to strike out the appeal. It is against that order that limited permission to appeal has been given. I shall return to the scope of the appeal later in this judgment.

In essence, by the ground of appeal for which permission has been granted, the appellant asserts that her application to set aside the Luba Order had been properly constituted, need not have been made under Part 23 CPR (though had been substantively compliant with that part), and that, pursuant to CPR 3.3(3), where the court proposes to make an order of its own initiative, and to hold a hearing for that purpose, it must give each party likely to be affected by that order at least three days’ notice of that hearing. HHJ Baucher, it is said, did not comply with that requirement.

I have read the official transcript of the hearing before HHJ Baucher and the approved transcript of her judgment. I have also read the two-part transcript of the hearing which had taken place before HHJ Luba KC, on 4 February 2021. That hearing had been listed to consider the substantive appeal from the order of DDJ Morley, but the appellant had been unable to produce, for the court or the respondent, copies of the authorities and statutory materials upon which she intended to rely and the respondent had not complied with an earlier requirement that he produce a skeleton argument. Having heard from the parties on both such matters, Judge Luba KC adjourned the hearing, stating that he would also make an unless order requiring the respondent to provide a skeleton argument. He concluded the hearing by stating that his order would be sent out by post to the parties. That order, dated 5 February 2021, included the directions of which the appellant was found by HHJ Baucher to have been in breach. From the transcripts with which I have been provided, it does not appear that they had been canvassed with the parties in the course of the hearing before Judge Luba, though paragraph 11, in so far as it related to the respondent, had been the subject of submissions and paragraph 14 broadly reflected the basis upon which the hearing of the appeal had been adjourned, at least in so far as it required the appellant to produce a bundle of legal materials upon which she herself wished to rely.

The appellant produced detailed skeleton arguments, supplemented by focused oral submissions. In summary, she contended that, albeit made following a hearing at which both parties had been present, the directions made by Judge Luba KC which she had applied to set aside had been made of his own motion, and without the benefit of the parties’ submissions. In such circumstances, she had been entitled to make, and had made, an application under CPR 3.3(5)(a) to set aside the affected parts of his order, in a form compliant with paragraphs 2.1 and 3.2 of PD 5B. Having done so, Judge Luba’s order ought to have been deemed suspended pending the determination of her application, and she ought not to have attracted criticism for not having complied with it. Furthermore, she submitted, albeit that her application had in fact complied with Part 23 and PD 23A, neither of which obliged a party to use Form N244, CPR 3.3(5)(a) did not require that an application be made in the form for which Part 23 provided (and would, otherwise be redundant). Accordingly, Judge Baucher had improperly (1) refused to consider, or (2) rejected, her application. The fee payable upon issue of an application made on Form N244 was not required in circumstances in which the substantive application related to matters on which the court had not sought prior submissions at a hearing and which, thus, sought to achieve the court’s compliance with the rules in accordance with which it ought to operate and which litigants had the right to expect. By contrast, the fee required for the lodging of Form N244 reflected the need for the court to list a hearing ‘purely’ for the benefit of the applicant. In any event, submitted the appellant, any failure to comply with Part 23 (should compliance have been required) would have constituted no more than an error of procedure which, per CPR 3.10, would not have invalidated any step taken in the proceedings and would have been capable of remedy by the court. In the appellant’s submission, she had been under no obligation to apply for relief from sanction, or to have appealed from the Luba Order. In any event, Judge Baucher had misapplied the principles set out in Denton v TH White [2014] EWCA Civ 906 and had had regard to irrelevant caselaw. She had mechanically addressed limbs one and two of the Denton test and had been unable meaningfully to address limb three having been unaware of the material background to the appeal and of the case papers. Her approach had denied the appellant’s right to a fair hearing under Article 6(1) ECHR and section 6(1) of the Human Rights Act 1998. It followed that her order should be set aside and the substantive appeal from the order of Deputy District Judge Morley reinstated for hearing.

In support of the above submissions, the appellant relied upon a number of earlier decisions, some of which being simply examples of cases in which an application made under CPR 3.3(5)(a) had been considered on its merits, or a direction given that the affected party could apply for the substantive order to be set aside, varied or discharged within seven days, in accordance with CPR 3.3(5)(b). On the points of principle, she pointed to the dicta of Dyson LJ (as he then was), in Collier v Williams [2006] EWCA Civ 20, in particular those at [29] and [36], submitting that his logic applied equally to orders made of the court’s own motion:

In the course of her oral submissions, the appellant took me through those paragraphs of the Luba Order which she had applied to set aside and explained the bases of that application. Her explanation need not be rehearsed in detail, but may be summarised as arising from her belief that, as at the date of the Luba Order, she had already provided all necessary and relevant material, to the court and the respondent, in an appropriate form, and in accordance with earlier orders, and ought not to have been obliged to do so again, at further cost, whether or not in a different format. Furthermore, she had not had access to a photocopier during the pandemic, which had provided a practical obstacle to compliance with certain directions.

The respondent did not demur from the appellant’s position that the paragraphs of the Luba Order which she had applied to set aside had not been the subject of prior discussion or submissions. He acknowledged that he had received a hard copy of the appellant’s skeleton argument in advance of the hearing before Judge Baucher and could not be sure whether he had also received an electronic copy, though he thought not. Whilst formally objecting to the appeal from the Baucher Order, and stating his presumption that Judge Baucher had acted correctly and that he wished to support her reasons, the respondent told me, ‘I want a hearing which will determine the underlying issues; the injury she has caused to my property. I want that to happen. I just want to face her and talk about what transpired in 2007 in the simplest way possible and that’s why I’ve been pressing for a court of record.’ I understood that statement to indicate that he desired a hearing of the appellant’s substantive appeal from the order of DDJ Morley.

As I have noted above, from the transcripts which I have seen and the parties’ submissions, it would appear that the directions within the Luba Order to which Ms Riniker takes objection were made without prior representations being invited from the parties, at least in significant part. The matter had had a protracted history and it would seem likely that, given the judge’s view of the need for an adjournment, he considered it sensible to make directions designed to ensure that the substantive appeal would be effective when re-listed and that all relevant documentation and submissions would be collated in a form readily accessible and comprehensible by the court and both parties.

The appellant’s e-mail to the court, dated 15 February 2021, copied to the respondent, had, as its subject, the County Court claim number; the title of proceedings; and the words ‘Application under CPR 3.3(5)(a)’. In upper case letters, it was marked, ‘FOR THE ATTN. OF JUDGE SAUNDERS WHO RESERVED THIS CASE TO HIMSELF BY ORDER OF 18.9.20.’ It opened with the following text, in bold typeface:

CPR 3.3 provides:

Thus, under rule 3.3(4), Judge Luba KC had power to make an order of his own initiative, without having given the parties an opportunity to make representations, but, having done so, rule 3.3(5)(a) was engaged. That rule is silent on the form which an application thereunder must take, but contains no express derogation from the general rule set out in CPR 23.3(1), nor permission of the nature contemplated by 23.3(2)(a), recited below:

For the purposes of Part 23, rule 23.1 defines ‘application notice’ to mean ‘a document in which the applicant states his intention to seek a court order’ and ‘respondent’ to mean ‘(a) the person against whom the order is sought; and (b) such other person as the court may direct’. Thus, it does not direct service on an individual simply by virtue of his or her status as a party to proceedings. Rule 23.3 sets out the general rule that an applicant must file an application notice, which, per rule 23.4(1), must be served on each respondent, as defined.

Rule 23.6 sets out that which an application notice must include:

Paragraphs 2.1 and 2.3 of PD 5B provide:

By paragraph 2.4 of PD 5B, the following provision is made:

Having regard to the above provisions, it is clear that:

Thus, the only omissions from the mandatory requirements for an application notice had been the appellant’s signature and, this having been an application made by e-mail, the information required by paragraph 2.3(a) of PD 5B.

I reject the appellant’s submission that an application made under CPR 3.3(5)(a) need not comply with Part 23, both as a matter of principle and having regard to the wording of the rules and practice directions considered above. The distinction for which she contends between an application to set aside an order made of the court’s own motion and an application on the applicant’s initiative is misconceived. First, the court is not acting in breach of the CPR by making an order without hearing from the parties; it is acting in accordance with the power expressly conferred by rule 3.5(4). Secondly, there is good reason for the requirement that an application have the content prescribed by Part 23 and PD 23A, in the absence of which it is likely to be difficult for the court and other parties to proceedings to understand the nature and bases of the application being made. Thirdly, there is no reason why a fee should not be payable where an applicant applies to set aside orders which, properly considered, might well have substantive merit. None of the authorities on which the appellant relied was concerned with the way in which an application under CPR 3.5 is to be made, as distinct from the substantive right to bring it. The fact that an application is required to comply with Part 23 does not render the rule which confers the entitlement to make it redundant.

CPR 3.10 provides:

Under that rule, the court has power to waive an error and to declare the irregular document to be valid, notwithstanding its irregularity. As the editorial notes to Part 3 observe, such an order is likely to be made in cases in which the defect is neither serious nor significant and has had no prejudicial effect on the other party.

At paragraph 8 of the transcript of her judgment, Judge Baucher said this:

So far as apparent from the transcript of the hearing before her and from her judgment, Judge Baucher did not analyse the requirements for a validly constituted application to set aside the Luba Order. She did not direct her mind to the nature and/or effect of any procedural irregularity in the application notice, or, hence, to whether an order to remedy it could and should be made. That was an error of law; on any reasonable view, the absence of a signature in the particular circumstances, and the appellant’s failure to have set out whether her preferred method of payment was by credit or debit card, were minor and had caused no prejudice to the respondent, who had made no submission to the contrary. The court itself had not refused to accept the application on the basis of the latter defect, as it could have done, and the first occasion on which the application had arisen for substantive consideration had been before Judge Baucher, almost 15 months after it had been filed. In accordance with the overriding objective, such defects could and should have been waived, enabling the substantive application to be heard, if appropriate with a requirement that the appellant pay the requisite application fee.

That error was compounded by Judge Baucher’s conclusions that: (1) the appellant required relief from sanctions for her non-compliance with the Luba Order; (2) relief should not be granted; and (3) in consequence, her appeal should be struck out, each of which constituting a further error of law. Those conclusions were set out at paragraphs 9 to 14 of the approved transcript of her judgment:

As to those conclusions, in circumstances in which an application (albeit one containing minor procedural errors) had been made to set aside the relevant parts of the Luba Order under CPR 3.3(5)(a), but had yet to be determined, the appellant’s non-compliance with that order, without more, could not be said to require an application for relief from sanction, or the court’s consideration of CPR 3.9 of its own motion. At the very least, and following the waiver of the minor procedural errors which I consider to have been appropriate, it was incumbent upon Judge Baucher to consider the substantive merit in the application to set aside the Luba Order before proceeding to address the issue of relief from sanctions. That she did not do.

Further, in my judgement, her approach to the application which she deemed to have been necessary was itself flawed. The court has discretion to grant relief from sanctions of its own initiative, where no application has been made, though such discretion will be exercised sparingly: Hadi v Park [2022] EWCA Civ 581. I bear in mind that decisions as to whether or not to grant relief from sanctions are discretionary and highly case-sensitive. Appeal courts will not interfere with a lower court’s decision on such matters unless satisfied that the lower court erred in law, erred in fact, or reached a conclusion which fell outside the generous ambit within which reasonable disagreement is possible. (See, for example, Abdulle v Commissioner of Police of the Metropolis [2015] EWCA Civ 1260.) On an application for relief from sanction, the well-known guidance set out in Denton requires a three-stage assessment: first, the identification and assessment of the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages r.3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages; secondly, consideration of why the default occurred; and, thirdly, evaluation of all the circumstances of the case, so as to enable the court to deal justly with the application, including the needs identified by CPR 3.9(1)(a) and (b), namely that litigation be conducted efficiently and at proportionate cost; and to enforce compliance with rules, practice directions and orders.

In this case, stage one required the judge to have regard to the seriousness and significance of the relevant non-compliance with the Luba Order, which, in turn, essentially, required consideration of the bases for the appellant’s application to set the relevant parts aside; if the material in question had already been provided by the appellant in suitable form and/or could not be provided in an alternative format for practical reasons, those were matters material to the gravity and significance of the non-compliance, which were likely to have rendered it unnecessary to spend much time addressing stages two and three. Judge Baucher proceeded on the basis that it was ‘essential’ that the directions imposed by Judge Luba be complied with, without considering whether the material already filed would enable her to consider the appeal, or how practicable compliance with any of his directions was. Without having undertaken that exercise, she could not properly have concluded that the appellant’s non-compliance had been serious.

In any event, for the purposes of stage two, non-compliance had occurred because the appellant had made an application to set aside the Luba Order, the determination of which, at a hearing (as required by CPR 3.3(7)), she awaited and which necessarily entailed a challenge to the need for compliance — a good reason. Judge Baucher concluded that no appeal or application to set aside had been made. Of course (see above), it had not been necessary to appeal, and the judge’s conclusion was informed by her erroneous characterisation of the appellant’s e-mail dated 15 February 2021. Similarly, she had not been in a position to ‘have no doubt’ that a similar view would be taken on an application to set aside because she had not considered (a) that application in detail, or (b) any alternative means by which the aims of the Luba Order could be satisfied.

With the exception of the matters to which the judge expressly alluded at paragraph 12 of the transcript, no further circumstances were identified as having been material to her assessment at stage three. When considering all the circumstances of the case for that purpose, it is difficult fairly to conclude that it was the appellant’s non-compliance which had prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost. In my judgement, Judge Baucher’s approach to each limb of the Denton test and the conclusion which she reached at each stage fell outside the generous ambit within which reasonable disagreement was possible. For the sake of completeness, whilst, in all the circumstances, both points are moot, I do not consider that the judge erred in:

Furthermore, under CPR 3.8(1), ‘Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.’ The only direction within the Luba Order which carried a sanction in the event of non-compliance was paragraph 8. The sanction imposed was set out in the unless order made by paragraph 11 (with emphasis added):

It follows that the appeal is allowed and I turn to consider the appropriate disposal, itself engaging consideration of a further ground of appeal for which the appellant contended that, on a proper construction of his order, Martin Spencer J had not refused permission. In broad summary, and recognising that the way in which it was articulated was more nuanced, that ground was that, Judge Saunders having reserved the matter to himself, the appeal from the order of DDJ Morley and related applications ought to have been listed before him, such that Judges Luba and Baucher had each lacked jurisdiction to determine the appeal, and to make the orders which each of them made. The simple answer to this point is that it is clear that Martin Spencer J did not permit that ground of appeal to proceed, at paragraph (iii) of his observations understandably describing the challenge to the jurisdiction of either judge as being ‘misconceived’.

In my judgement, the appropriate order is that the substantive appeal from the order of DDJ Morley be reinstated. The appellant’s application to set aside the relevant provisions of the Luba Order be listed for substantive consideration by a Circuit Judge, at the earliest practicable opportunity, at an inter partes hearing at which any necessary and appropriate further or alternative directions should also be considered. Given the time which has elapsed since the making of the appellant’s application and the fact that, at no point prior to the hearing before Judge Baucher did the court refuse to accept that application under paragraph 2.4 PD 5B, I do not make that listing contingent upon payment by the appellant of the fee which would usually be payable.

The appellant is to file a copy of this judgment and of the order which reflects it at the Central London Civil Justice Centre, as soon as reasonably practicable and no later than seven days from the date on which that order is sealed.

At the end of the hearing, each party made contingent submissions as to costs. On the hypothesis that she would succeed in her appeal from the Baucher Order, the appellant submitted that costs should follow the event, and would be lower than those which would have been charged and recoverable by a lawyer. She invited me to consider the fact that she did not have an office and needed to travel to a library in order to undertake certain research and to photocopy documents. She stated that she had made a ‘tremendous commitment to it all and [had] put in a tremendous amount of work’. Nevertheless, she had discounted the sum claimed to exclude time engaged in reading irrelevant judgments or born of the need to make additional photocopies, when the copier had malfunctioned.

The total sum claimed in costs and expenses is £4,645.07, of which £579.07 represents disbursements. The balance represents a total of 214 hours variously engaged in research; preparation; drafting documents and attending the hearing of her appeal, charged at the hourly rate of £19.00 for which paragraph 3.4 of PD 46 provides.

The respondent told me that all he wanted was recompense for injury to property. The appellant had submitted enormous expenses, so whatever she wanted from him, he wanted from her. Whilst stating that he could not establish dishonesty on the appellant’s part, he considered that half of the time for which she had claimed had been fabricated. Acknowledging that she had spent a lot of time dealing with the appeal, so had he. Even if she were to succeed in her appeal, she should not recover any expenses, he submitted.

I consider it appropriate that costs should follow the event; the respondent maintained his formal resistance of the appeal throughout and the assertion recorded at paragraph 10 above, was not made until the end of his submissions.

I bear in mind the provisions of CPR 46.5, concerning the costs of litigants in person, including rules 46.5(4)(a) and (b), which require me to have regard to the time ‘reasonably spent’ on doing the work in question. I do not doubt the appellant’s commitment to her appeal, or the fact that she has undertaken a great deal of work in relation to it, both of which evident from the papers and her submissions, but I do not accept that all such time has been reasonably spent, or that the sum to which it gives rise is proportionate to the issues engaged on appeal. Doing the best that I can on summary assessment, I consider it appropriate to award the applicant her disbursements in full, in addition to a sum representing 30 hours’ work, namely £570.00. I order that the respondent pay the total sum (being £1,149.07) to the appellant, in cleared funds, within 28 days of the date of this judgment, that is by 4:00pm on 15 December 2023.