Aron Zelman v Darren Lefcoe & Ors

This is the judgment of the court.

In this case, the applicant is Aron Zelman, who is not in front of the court today. The applicant is not represented. However, two people have attended the court today concerned to promote his interests. The first is his son, Daniel Zelman. Daniel Zelman has provided the court with a statement that I will come to. There is also Mr Moshay Levy, who has addressed the court on issues of historical importance, but not directly connected to the application before the court today. Mr Daniel Zelman was asked whether he made an application to address the court on behalf of his father; he indicated he did not wish to do so.

The respondents in the case are threefold: first, Darren Lefcoe; second, Derrick Lefcoe; and third, Karen Fisher. They are represented by Mr Skjøtt of counsel. The court is grateful to him both for his oral submissions and for the skeleton argument he sent to the court yesterday. I must set out the background in some detail, before turning to the court’s discussion of the merits of the application.

The applicant was born on 18 April 1954 and so is aged 71. He is the defendant in the main action. The action is a dispute about a commercial lease. The case is fundamentally about his occupation of two shops in Brick Lane in London, number 153 and 155. The respondents were the freeholders of one of those shops, number 155. As Ritchie J noted, the applicant seems to have fallen into arrears with his rent. This was during Covid. He settled the dispute with the freeholder of 153 after going to arbitration. However, the respondents brought proceedings, as is their right. The proceedings were dated 3 December 2021.

I note immediately that the order disposing of the claim was made by Recorder Lambert KC on 29 June 2022. On 16 June 2023, HHJ Saunders sitting at the Central London County Court granted a civil restraint order against the applicant on the application of the respondents. At the same time, the judge dismissed two applications made by the applicant and marked them as totally without merit.

HHJ Saunders ordered that:

The respondents were successful in forfeiting the lease on 9 October 2023, and therefore the premises were taken over by somebody else.

On 30 June 2023, the applicant appealed the whole of the Saunders order. This court communicated to the parties on 3 April 2025 that in accordance with the previous court order of Ritchie J dated 7 March 2025, the appeal has been struck out.

This therefore is an application to restore the appeal. It has been claimed by the applicant as an application to vary the Ritchie order. However, in substance these amount to the same thing: should the appeal remain struck out or should this appeal continue either by variation of the original order or by restoration of the struck out appeal?

There is a long and byzantine procedural history. For the purposes of an ex tempore judgment it is unnecessary and disproportionate to do so in court 37 today. The vital order that is the subject of appeal is the order of Ritchie J of 11 March 2025. It has been called by the applicant -- and this has caused confusion -- the 11 April order. However, there is no such order dated 11 April. It is the order of Ritchie J on 11 March 2025 that is sought to be challenged.

That order contained in its material respects the following:

“1.

The appellant must file and serve by 4 pm on 28 March 2025 of the date of this order a permission to appeal bundle. It must include a transcript of the judgment, if it has been received, and it must be paginated, indexed and must contain only those documents which are relevant to the appeal.

2.

If the respondent has not received the transcript of the hearing before HHJ Saunders on 16 June 2023, the bundle must be served and filed without that and on time.”

It says “respondent”. That I think is a typographical error and it should be “appellant”.

Paragraphs 4-5 state:

“4.

If the appellant defaults in relation to paragraphs 1, 2 or 3 above, the appeal is hereby struck out.

5.If the appellant wishes a further extension of time, he may apply at 4 o'clock on 21 March 2025, but any such application must have attached to it a request for a transcript and all the correspondence from the Central London County Court and the transcribers relating to the request for a transcript. In addition, the appellant must provide copies of all correspondence with the Official Solicitor.”

The next procedural step took place on 21 March 2025. This was an application notice that was an application for what was called a further extension. It was notice that the appellant wishes to apply for further extension time in accordance with paragraph 5 of the order of 11 March 2025 of Ritchie J. The appellant, it is said, had applied for transcripts at the Central London County Court of the transcript of the hearing before HHJ Saunders, dated 16 June 2023. It is said in the application notice, “If Judge Saunders had before him the previous judge's decision, he would have come to a different decision.”

Next, the transcript of the hearing before HHJ Grant dated 11 July 2022. It is said in the application notice, "He [that is Judge Grant] criticised the previous order made by Recorder Lambert.” Whether or not that is true is not a matter for this court. Mr Skjøt tells the court, because he appeared at the fact hearing, that HHJ Grant made the same orders as HHJ Saunders, and that must be as a matter of logic the case.

Next, the transcript of the hearing before Recorder Lambert dated 29 May 2022, and it is said in the application notice, “Recorder Lambert did not see the defence, as it was removed from her file.” Vitally, the application notice states, “The appellant has received the transcript as per item 1, that is the transcript of HHJ Saunders dated 16 June 2023 and is awaiting the other two transcripts.”

On 28 March 2025, Sir Stephen Stewart, sitting as a judge of the High Court, made a further order. He stated that:

“The provisions of the unless order made by Ritchie J will take place absent full compliance with the order of 7 March sealed on 11 March 2025, such that the appeal will be struck out at 4 pm on 28 March 2025. If the appeal is struck out for failure to comply with the order of Ritchie J, then any application under paragraph 1 above to restore this appeal must be made on notice to the respondents and be dealt with at a hearing.”

This order was overtaken by Ritchie J's order in that the appeal bundle was ordered to be served by 4 pm on 28 March 2025 (paragraph 1). In the alternative, paragraph 2 of the order stated, “If the respondent has not received the transcript of the hearing before HHJ Saunders on 16 June 2023, then the bundle must be served and filed without that and on time.”

The application notice sealed on 21 March 2025 seeks an extension pursuant to paragraph 5 of the Ritchie order. The only basis of the extension sought is that two transcripts were waiting, these being the transcripts of the hearing before Judge Grant on 11 July 2022 and of a hearing before Recorder Lambert on 29 May 2022. It is said that the transcript of the hearing before Judge Saunders on 16 June 2023 has not been received. Sir Stephen Stewart therefore concluded that the application must be refused, since the Ritchie order does not require any further transcript save the transcript of the order being appealed, that of 16 June 2023. Therefore, there appears to be no reason for non-compliance with paragraph 1 of the Ritchie order. It is not for the appellant to fail to comply with the order because he wishes to include transcripts of other hearings.

Sir Stephen Stewart said at paragraph 5, “If the appeal is struck out as a result of the order of 7 March that is sealed on 11 March 2025 in the refusal of the application for an extension of time, then the appellant may make an application under paragraph 2 of this order for relief from sanctions.” Sir Stephen Stewart then provided what he calls “a very brief summary of the principles which apply to an application for relief from sanctions”. In due course, I will return to these.

On 3 April 2025, the King's Bench listing office sent an email to the parties. It said, “Dear Sirs, I write in reference to the attached order. As per paragraph 3 of the order, the application is now struck out”, and it was signed by the team leader of the King's Bench judges' listing office.

I have set out the background in some detail for the sake of clarity and to provide the necessary context. I now turn to the court's discussion of the application before it. As things stand, the appeal stands struck out in accordance with the order of Ritchie J sealed on 11 March 2025. Today is two years and two weeks after the order of HHJ Saunders that the appeal is based on. There is still no bundle from the applicant. The transcript which the applicant has in his possession of the judgment of HHJ Saunders from 16 June 2023 has still not been filed with the court, even though by the applicant's own admission in the application notice he has received the document.

I approach the applicant's submissions as amounting to an application for relief from sanctions and also to restore the struck-out appeal, which, as I have indicated in court today, in substance is the same thing. In terms of relief from sanctions, a three-stage test is set out in the King's Bench Guide 2025 at paragraph 10.82. I also divide my analysis into the well-known three-stage test from Denton v TH White Limited [2014] EWCA Civ 906.

The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order”, which engages Rule 3.91 of the Civil Procedure Rules.

I find the failure to comply with the order of Ritchie J to be both serious and significant. There has been ample time to file a bundle. The applicant has failed to do so on multiple occasions. The application has in his possession a judgment of HHJ Saunders dated 16 June 2023. He has refused to file it.

The second stage to consider why the default occurred. It is insufficient to say that the applicant is unwell. He has been able to write and fill a strident and trenchant statement dated 28 April 2025. In the hospital records, it is noted that Mr Zelman ticked the box marked "No" in relation to whether he or anyone else is a vulnerable party. Ritchie J stated that there should be medical evidence led if the basis of further extension or basis of seeking to interfere with the appeal is medically related. No such medical evidence has been filed.

Instead, the applicant makes a serious complaint about the court service's administration of proceedings. He has stated in terms that he intends to report the court service to the Minister of Justice. That is his right. He has previously alleged that Recorder Lambert KC may have improperly “collaborated” with the respondents. Serious and baseless allegations were also made against the respondent's solicitors. At this point I need say no more about them, only that they appear to be similarly unevidenced in substance.

What Mr Zelman could have done is simply to have filed an appeal bundle. He has chosen not to do that. Instead, he has filed an application notice, he has made a statement, and he has also filed a statement from his son, Daniel Zelman, which is dated 30 June 2025. I have read that separate statement. There has serious flaws. There is no statement of truth. It appears to engage in argument and it is by someone who is not a lawyer, nor who has been granted permission to advocate on behalf of the applicant. It is not compliant with the relevant Civil Procedure Rules. It repeats some of the far-fetched allegations, and given its procedural defects it adds little to the sum of knowledge in this case.

The claim that Mr Zelman is awaiting the Official Solicitor's involvement cannot justify his actions. By his statement of 28 April 2025, he is plainly capable of making his case in forceful and tendentious terms. As Ritchie J noted at paragraph 22 in his reasons:

“The Official Solicitor has been asked to act as the litigation friend, but the rules state that he/she will only act if he/she will be paid or can find a lawyer to act for payment or on a conditional fee agreement. There is no suggesting that the appellant intends to pay for legal assistance. He has not hired a lawyer to do so at any stage of the claim or the appeal.”

Therefore, I judge that there is no good reason for the applicant's failure to comply with Ritchie J's order. It is a wilful refusal.

The third stage is to evaluate the circumstances of the case to enable the court to deal justly with the application, including under Rule 3.5(1)(a) and (b). Therefore, I now examine all the circumstances to deal with the case justly. I must consider the interests of both parties and also the interests of the public.

I have to consider, and indeed have considered, factors listed in the overriding objective at Civil Procedure Rules 1.1(2). This is objectively not a complex matter. It has been made procedurally tortuous by the applicant's refusal to comply with court orders. What he was required to do could not have been spelled out for him with greater clarity. The case has used up a great deal of court resources unnecessarily. As Ritchie J poignantly and succinctly put it at paragraph 20, “This cannot continue.” Ritchie J stated in the next paragraph, “I have made a further extension of time for the service of a bundle with or without a transcript. If that is not complied with, the appeal will stand struck out.”

As is made clear by the King's Bench Guide 2025, there is a particular need for litigation to be conducted efficiently and at proportionate cost, and there must be enforcement of compliance with the rules, Practice Directions and court orders. In my judgment, it would be disproportionate to restore the struck-out appeal or to vary the order of Ritchie J. That would run contrary to the objectives of dealing with the case expeditiously and saving expense. It would inevitably incur unnecessary and disproportionate further cost and use up a greater and therefore inappropriate share of the court's resources. It would unnecessarily prolong these chequered and unsatisfactory proceedings. Compliance with the orders of this court must be enforced in these circumstances. Therefore, to deal with the case justly, as is my duty, and at proportionate cost, as is my duty equally, the appeal remains struck out.

I have carefully considered the King's Bench Guide 2025 at paragraph 16.3. It provides that an application can be marked as totally without merit if:

“… it is dismissed and is totally without merit (CPR 23.1(2) or where an appeal court refuses an application for permission to appeal strikes out an appellant's notice or dismisses an appeal (CPR 52.20(6)).”

The King's Bench Guide continues at paragraph 16.4:

“A claim is totally without merit if it is bound to fail. See R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 and R (Hossain) v Secretary of State for the Home Department [2016] EWCA Civ 82.”

I judge that this application was bound to fail. I find that it is totally without merit. Therefore, it should be marked as the same. The order I am going to invite Mr Skjøtt to draft in due course must record that fact. There is already a limited civil restraint order against the applicant.

As to costs, the respondents make an application for costs on the indemnity basis. I have indicated to Mr Skjøtt that in due course the court will receive costs submissions. I judge it important that Mr Zelman has an opportunity to respond in writing to the application for an order for costs on the indemnity basis and also for any response he wishes to make about quantum. The respondents will have an opportunity to reply after that. The court will decide the matter on the papers. I judge it disproportionate to convene a further court hearing in order to deal with this confined consequential matter.