Becontree Heath Islamic Society (DCM) Ltd & Anor v Shafik & Ors

It was apparent from the papers as I read into the case yesterday, having had no prior involvement or exposure to this litigation at all myself, that the claimants are unrepresented limited companies and that Mr Simms, a director of the companies, is in effect conducting the litigation and would be seeking to speak as advocate on their behalf though he has no rights of audience before the court.

The importance of the potential application that would need to be made, although there was nothing in the papers to indicate to me that Mr Simms appreciated the need to make an application, was heightened by the reference in a witness statement of Sarah Hussain of Mono Law, solicitors to one group of defendants and respondents before me, to Mr Simms’s history as a former solicitor struck off the roll now almost exactly 20 years ago for conduct unbefitting of a solicitor.

That caused me, as my clerk informed the parties, to locate as a publicly available pair of judgments, the judgments of the Divisional Court and the Court of Appeal in the matter of Simms v The Law Society. The references are [2005] EWHC 408 (Admin) and [2005] EWCA Civ 749.

The resulting position, in summary because I do not want to take up too much more of this hearing dealing with this threshold question, is that – in my view highly regrettably – at all stages in the County Court, and it may possibly be in some related applications to the High Court concerning actions of the Charity Commission (although there is now in my mind an unresolved question as to whether that led to any hearings before a judge of this court), it seems to have been treated as something of a formality that given Mr Simms’s office as a director of the companies actively assisting them with the dispute and the litigation, he should be granted that which is supposed to be exceptional, namely a right to appear and act as advocate in a range of interlocutory and final hearings, including the trial of the first set of County Court actions indirectly out of which the proceedings arose that now give rise to these appeal proceedings.

I make clear that, other things being equal, I would have been minded to say that the claimants have not begun to demonstrate to my satisfaction either that there is a good reason for them not to be represented by duly qualified legal representatives, for the purposes of this High Court appeal at the very least, or that if there were good reason for them not to be so represented, then Mr Simms ought to be granted exceptional permission to act as advocate on their behalf. That is not only because of the relationship between the basis upon which, albeit now some 20 years ago, Mr Simms ceased to be a qualified solicitor and the important public interest in the proper administration of justice that underpin the need generally for parties to be represented by duly qualified professionals, but also because, as Mr Simms has been kind enough to acknowledge, he is not a director of these companies for reasons independent of the companies’ desire to have somebody in effect act for them as legal advisor and conductor of this litigation, the very thing from which Mr Simms was struck off as having any lawfully authorised permission to be.

However, and having not found it an easy judgment to make, on balance, in the very particular circumstances of this case, including in that regard the degree to which I am clear from what Mr Simms has said that he has been caused, not unreasonably, to misunderstand that it was likely he would be granted a special right of audience somewhat on the nod or as a formality, that the greater injustice in this case would be the injustice done to all the claimant companies, Mr Simms as an individual and a director, and all of the defendants to the action and respondents to the appeal, if the matter were not resolved today one way or the other on the substantive merits of this application for permission to appeal and appeal if permission is granted.

My concerns notwithstanding, as to the view I might otherwise have taken, so far as I can see Mr Simms’s actual conduct of this litigation has not given rise to any specific concerns as to the honesty and propriety of his approach to the matter or the way he has dealt with the court. In the circumstances, by a relatively fine margin, I am persuaded that the appropriate course is to grant Mr Simms permission to appear today, to act for and advocate on behalf of the claimant and appellant companies, although he does not otherwise have any rights of audience in the court. But to be clear, as will have been evident from what I have just said, that is a decision very much made for the purposes of dealing with and providing the parties with a determination one way or the other of this particular set of appeal proceedings. It should not be taken as any decision as to, or guidance in respect of, the representation of the claimants hereafter in the continuation of these proceedings which, whatever the outcome of this appeal hearing, on the face of things will need to continue to a trial because, as we shall be moving on to now, the subject matter is the extent to which the proceedings as they stand were struck out as against most of the defendants. The proceedings on any view were not struck out as against at least the three most significant individuals (as alleged on the facts), namely the first, third and fifth defendants. So come what may, there will be further life to these proceedings even if this appeal is not successful today.

So with those observations made, Mr Simms, this is your application in the first instance for permission to appeal. On a hearing of this kind, I apprehend that it will be awkward and unnecessary to try and deal separately with what you would say in support of permission and what you would say on the appeal. Unless you suggest that you would like me to take a different course, I would prefer simply to hear you as to how you would put the appeal. I will then hear from counsel for the respondents and you can reply. I will then make my decision with my options open as to whether I am granting permission and allowing the appeal, granting permission but dismissing the appeal, or not granting permission in the first place, rather than separating them out into separate decisions and judgments.

This now is my substantive judgment upon the hearing last Friday, which was the hearing of the claimants’ application for permission to appeal and their appeal, if permission be granted, against orders of Mr Recorder Hill-Smith dated 9 August 2023 in the Central London County Court, as listed under a direction of Martin Spencer J in an order dated 28 October 2024.

Having dealt with the question of the claimants’ representation for the hearing, I invited and heard argument for and against the appeal and in reply, but did not seek to distinguish between the application for permission and the appeal if permission be granted, leaving me with all options open when giving judgment, rather than hearing and deciding the permission application separately.

Having heard the full argument, and confirming my initial view on the papers, I consider there to have been a properly arguable case as to whether Mr Recorder Hill-Smith erred in his analysis. Albeit that might or might not mean that the orders he made were not ultimately correct, in my judgment, in view of the procedural course which the appeal has taken pursuant to Mr Recorder Hill-Smith’s order, the fair outcome is to grant permission to appeal, and I therefore do so and will deal with the substance on the basis that this is now an appeal and not only an application for permission.

I shall refer to the parties by reference to their position in the court below; thus the appellants are the claimants and the respondents are (most of) the defendants.

There are 22 defendants. When I refer to them individually, I shall use D1, D2, and so on, rather than individual names. All 22 defendants are individuals resident in or near Dagenham who are said to have attended Dagenham Central Masjid during a period of some turmoil. In short, it is said that on or about 1 November 2015, there was in effect a hostile takeover of the Mosque, allegedly instigated and led by D1.

The claimants are charitable companies, incorporated to own and manage the Mosque. It has been open for worship and other faith and community activities at premises on Green Lane Dagenham since 2013, following extension and refurbishment work to those premises.

Possession of the premises was eventually restored to the claimants pursuant to a judgment of HHJ Johns KC in the Central London County Court in 2020. In the further claim in that court, giving rise now to this appeal, the claimants alleged that the premises as restored to them had been damaged during a period of unauthorised occupation and that certain chattels had been removed so as to be lost to the claimants.

The Particulars of Claim included at paragraph 6 an itemised schedule listing in 23 numbered items what was said to be:

“... the work required to the premises, to remedy the unauthorised damages or changes at the Mosque.”

Paragraph 6 itself reads as follows:

“The defendants caused the following damage to the Mosque as shown below in the first column, and the remedial works and the cost of such works shown in the third and fourth columns ...”

The estimated basic cost of repair asserted is just over £97,000 before VAT, leaving the claimants to propose a total claim value for damage repairs inclusive of estimated professional fees for a chartered surveyor and VAT of just over £134,000. The value claimed for the allegedly misappropriated items is much lower, just a few thousand pounds, giving a total claim value, as alleged, before interest and costs of about £140,000.

Paragraph 6 of the Particulars of Claim and the schedule of repairs said to be required were not amended at all in the Amended Particulars of Claim which lie at the heart of this appeal.

Although the appeal is, as I have said, against all orders of Mr Recorder Hill-Smith in August 2023, it concerns ultimately, as did the recorder’s orders, a prior order in the proceedings, namely an order of HHJ Gerald dated 17 March 2023. That order dealt with a number of applications, including in particular an application by some of the defendants referred to as the Londonium defendants (and I shall come back to that terminology shortly) to strike out the claim against them, or for summary judgment dismissing the claim against them.

That application was not granted. However, in the light of the argument of that application, which included some realistic concessions by Mr Simms on behalf of the claimants as to the inadequacy of the particularisation of the claim, the order included at paragraphs 3 and 4 (the details of which I shall come back to) an unless order requiring the claimants to file and serve Amended Particulars of Claim specifying certain matters, and to do so by 4 pm on 7 April 2023.

The operative unless order default consequence was the automatic striking out, without further order, as at 4.01 pm on 7 April 2023, of the claim against any given defendant in respect of whom the requirement for a better pleading had been ordered and where that order was not complied with.

Amended Particulars of Claim were served on 3 April 2023. A dispute arose between the claimants and at all events most of the defendants who had the benefit, as it were, of the unless order direction as to whether the Amended Particulars of Claim did comply with the unless order requirements.

That dispute led in due course to the hearing on 9 August 2023 before Mr Recorder Hill-Smith and his orders now under appeal. The operative part of his orders now challenged on appeal are declarations that as against the defendants identified in the declaration, the county court claim was struck out at 4.01 pm on 7 April 2023, and that makes it now convenient to identify the defendants falling as they do into three groups.

There are the Londonium defendants, represented before me as below by Ms Nora Wannagat of counsel, instructed by Londonium solicitors; they are D4, D16, D19, D20 and D22. Then there are the Mono Law defendants, represented before me by Mr Miles Croally of counsel, who was not counsel for the Mono Law defendants in the court below, he being instructed, as was counsel in the court below, by Mono Law solicitors. They are D7 to D11, D14, D15, D17, D18 and D21. The other defendants, as I understand it all litigating in person, are therefore D1 to D3, D5, D6, D12 and D13.

Mr Recorder Hill-Smith’s first order containing two separate declarations covered in aggregate the Londonium defendants, D2 and D13. His second order contained a single declaration covering the Mono Law defendants. Therefore, for each defendant other than D1, D3, D5, D6 and D12, the recorder declared that the proceedings had been struck out. Whatever the outcome of this appeal, as things stand, the proceedings will continue against D1, D3 and D5; the claim as against them was not subject to the unless order in the first place. For completeness only, I note also that D5 later made a separate application to strike out the claim against him, which was dismissed by HHJ Gerald by order dated 31 January 2024.

As I shall explain a little later in this judgment, there is an unresolved question as to the status of the claim as against D6 and D12. The recorder made no declaration in relation to the claim as against them, or either of them, and the terms of his declarations relating to other defendants, as it seems to me, did not say or imply that the claim as against D6 or D12 had not been struck out by the operation of the unless order.

The unless order provided, as I have already indicated, for the automatic striking out at 4.01 pm on 7 April 2023 of the claim against any defendant in respect of whom paragraph 3 of the order had not been complied with, in circumstances where paragraph 3 required Amended Particulars of Claim to be served which specified certain matters; that is to say Amended Particulars of Claim which stated those matters clearly and precisely.

Slightly more fully, paragraph 3 of the unless order said that the stipulated matters were to be specified for all defendants other than D1, D3 and D5, and if that was not done, the claim against all those defendants would be automatically struck out. However, paragraph 4 of the order then provided, for the avoidance of doubt, that if paragraph 3 was not complied with in respect of any given defendant other than D1, D3 or D5, the claim against that defendant would be automatically struck out. The effect of paragraphs 3 and 4 together, therefore, is that for each defendant other than D1, D3 and D5, to whom none of this applied, unless in that defendant’s case the matters stipulated by paragraph 3 were stated clearly and precisely in Amended Particulars of Claim served by 4 pm on 7 April 2023, the claim against him was struck out automatically at 4.01 pm on that day. No further application or order was required to bring about the striking out of the claim.

The unless order further provided under paragraph 5 for a time-limited liberty to defendants, which in context can only be defendants as against whom the proceedings had not been automatically struck out by operation of paragraphs 3 and 4, to apply for the claim against them to be struck out on the grounds that:

“The claim against [them] has not properly been pleaded (as opposed to no particulars relating to that defendant having been pleaded).”

That is to say a defendant against whom the claims did enough per paragraph 3 of the unless order to avoid an automatic strike out was nonetheless entitled to say, by making an appropriate application, that what had been pleaded even after amendment was still sufficiently inadequate as to justify the striking out of the claim.

Applications were made by the Mono Law defendants dated 10 April 2023, and by the Londonium defendants dated 11 April 2023. Those applications were made, and plainly so, within time. Any application under paragraph 5 of the unless order, according to that paragraph, had to be made within seven days of service of the Amended Particulars of Claim. The seventh day after 3 April 2023 was 10 April 2023, but that was Easter Monday, therefore 11 April 2023 was the last day for a timely application to be issued (see if necessary CPR 2.8(5)).

Mr Simms for the claimants from time to time has asserted in writing that those applications were late, but that was straightforwardly a bad point which should never have been taken. Had it mattered to the appeal -- in fact it does not -- Mr Simms fairly did not pursue it before me.

Those applications by the Mono Law defendants and the Londonium defendants were recited by Mr Recorder Hill-Smith as the applications to strike out and, as he also recited, the Londonium defendants’ further application dated 28 April 2023 for relief from sanctions, in case by any chance their strike out application were thought to be late, as Mr Simms had suggested he might argue.

Those main applications were and were thus treated as applications under paragraph 5 of the unless order. On a proper understanding of the unless order, then, and given the declaratory terms and other provisions of the orders of Mr Recorder Hill-Smith, those strike out applications were not granted; rather the recorder made no substantive order on those applications and dealt only with costs in relation to them.

For the Londonium defendants, there were costs orders for no order as to costs of their unnecessary application for relief from sanctions, an order that the claimants pay the costs of the strike out application, and an order that the claimants pay the costs of the proceedings generally, in the case of the Mono Law defendants more simply there was a single costs order for the claimants to pay the costs of the proceedings generally, but that will therefore have included the costs of the strike out application.

Mr Recorder Hill-Smith did not on 9 August 2023 strike any claims out; rather he declared that claims against the defendants he identified in his orders had been struck out automatically at 4.01 pm on 7 April 2023. Moreover, it is clear from his judgment, albeit as I shall mention, he made individual observations about only a limited number of defendants, that the question he addressed and decided was indeed whether there had been compliance with paragraph 3 of the unless order, not whether claims should be struck out even if paragraph 3 had been complied with. His conclusion, although I say again he gave individual reasons in the case of only a few defendants, was that:

“Those defendants to whichthe Order of His Honour Judge Gerald relates are no longer part of the proceedings.” (Judgment at [16])

It is then an oddity for which neither Mr Recorder Hill-Smith’s judgment nor anything else in the appeal papers provides an explanation that: (a) he issued two separate orders containing between them three separate declarations; and (b) he did not in either of them extend the declaratory relief he granted to D6 and D12. It may be he formed the view that D2 and D13 had, but D6 and D12 had not, actively sought relief, although if that is the thinking, it is not self-evidently a good reason not to give full effect to the conclusion he had in fact reached, if it was otherwise fair to do so, if only so the claimants knew with certainty where they stood going forward.

Be that as it may, in my judgment, the position with respect to D6 and D12 is that Mr Recorder Hill-Smith did not grant a declaration that the proceedings against them had been struck out; but equally he did not dismiss any application by them for such a declaration. There is no appeal in respect of the absence of a declaration, and my jurisdiction is only as an appeal court in respect of the claimants’ appeal against the grant of declarations relating to other defendants. Given the automatic nature of the strike out under paragraphs 3 and 4 of the unless order, the position strictly, then, is that the proceedings either do or do not stand struck out by operation of that order as regards D6 and D12, and any question as to which of those it is firstly was not resolved by Mr Recorder Hill-Smith’s order; and secondly will not be resolved at all events directly by any order I make today on this appeal. It will be a matter for the claimants, D6, and D12, respectively, it may be to reflect on matters in light of the judgment I am now giving and the result of the appeal today as to what, if anything, should be done to clarify the status of the proceedings in relation to D6 and D12.

But in all those circumstances, so the position will be clear for all concerned going forward, the appropriate course will be to spell out by recital in the order drawn up today that for the avoidance of doubt, no assumption or decision has been made as to whether the proceedings were struck out on 7 April 2023 as against D6 and D12, or either of them.

Permission to appeal against the unless order itself was sought by the claimants. It was refused on paper by Sir Stephen Stewart on 5 December 2023. The claimants’ application to have that reconsidered at a hearing was heard and dismissed by Mr Justice Soole on 8 July 2024. It may be that under CPR 23.11, the claimants could have sought a re-hearing, since they did not appear before Mr Justice Soole and he proceeded in their absence. However no such application was made. That means there can be no question of challenging or going behind the unless order.

As Sir Stephen Stewart said in refusing permission to appeal the unless order, the question now is simply whether Mr Recorder Hill-Smith was right or wrong to say that there had been automatic strike out under the unless order. That is also the only question in the opposite sense that there is no respondents’ notice seeking to uphold the result on some argument that Mr Recorder Hill-Smith could and should have acceded to the strike out applications under paragraph 5 of the unless order; thus no general question of the adequacy or sufficiency of the particularisation of the claim against any given defendant arises. The only question, and it is ultimately a simple question, is whether, defendant by defendant, the Amended Particulars of Claim specified that which paragraph 3 of the unless order required them to specify.

As I have said already, paragraphs 3-4 of the unless order required the Amended Particulars of Claim to specify certain matters for each defendant other than D1, D3 and D5; that is to say neither more nor less than the matters identified in the order had to be stated, clearly and precisely, for each of those defendants. That did not require supplemental detail or particularisation, so long as that which the order asked for was itself stated clearly and precisely. But it did require that which the order identified to be stated clearly and precisely, not to be left unstated, partly stated, or unclear.

The matters to be specified, then, for each defendant were set out in four numbered subparagraphs.

“(i)

The involvement of the individual defendant in the making of decisions in relation to the Mosque ...”

“(ii)

How the implementation of the individual defendant’s decision in relation to the Mosque occurred.”

“(iii)

Over what period from 1 November 2015 until March 2016 the individual defendant is claimed to have been involved in the making of decisions pertaining to the alteration of the fabric of the Mosque specifying what (if any) group or committee the individual defendant is alleged to have been a member of and on what grounds it is alleged that the individual defendant was a member of that group or committee.”

“(iv)

Which item(s) of damage/defect (by reference to the item numbers in the table headed ‘Schedule of Works/Repairs’ in paragraph 6 of the Particulars of Claim) the individual defendant is alleged to have caused, and why [i.e. why it is said the defendant in question caused the damaged items specified in his case].”

Paragraph 3(iii) did not require the claimants to plead against any defendant that he was a member of any particular group or committee. The point of that part of paragraph 3(iii) of the order was to ensure that if the claimants were alleging such membership, that had to be made clear, the grounds of the allegation given, and certain basic consequential particulars provided.

More generally, it is relevant context to note the paucity and inadequacy of the claim as originally pleaded in respect of which paragraph 3 of the order was judged to be an appropriate order to make. The original paragraph 5 in the Particulars of Claim effectively constituted the entirety of the claimants’ attempt in the pleading to plead any cause or causes of action against any or all of the defendants, and it read as follows:

“When the Trespassers and their supporters took unlawful possession of the Mosque on 5 November 2015, they claimed to be a management committee and proceeded to run the Mosque in that purported capacity. The parties involved in the making of the decisions of the Mosque and their implementation at the Mosque on behalf of the so called Management Committee of decisions are the defendants and each of them is sued on a joint and several basis for making and implementing decisions to alter the fabric of the Mosque and cause considerable damage.

“The principal decision was to alter the fabric of the building were taken in the period November 2015-March 2016 [hence no doubt the focus on that period in paragraph 3(iii) of the unless order]. The judgment of HHJ Johns QC in the Possession Proceedings held that there was management committee so that each individual involved in wrong-doing in relation to the Mosque is liable, hence to the extent that decisions were made by all or some of the defendants in the name of the Management Committee and implemented by some or all of the defendants in the name of the Management Committee, or were approved and actioned by the defendants, the claimants’ claim against each of the defendants for their loss ... it is asserted against the defendants that the defendants acted in concert with one another and implemented the damage as a tort of deliberate and/or accidental damage to the Mosque for which those joint and several responsibility of the defendants and each of them.”

Thus under the Particulars of Claim, it was highly unclear which, if any, of the defendants were said to have been members of (as alleged) the new purported management committee; what, if any, actions any individual defendant took as a member of that committee, if membership was alleged; how it was said decisions or any particular decision of (as alleged) the new purported management committee were or was implemented, including by whom; and critically to what extent involving any steps taken by any individual defendant

This is a case in which in substance there were no particulars worthy of the name against each defendant and it may be said that the general purpose of paragraph 3 of the unless order was to get the claimants as a minimum to specify, given the general way the case appeared to be being put forward, the basic details identified in that paragraph.

Any argument as to whether if the claimants at least did that, nonetheless what the claimants had pleaded against any given defendant fell far enough short of a properly pleaded case that striking out was justified, that would be a matter for an application by that defendant under paragraph 5 of the order.

A final point to note on the language of paragraph 3 of the unless order is that in my judgment, material compliance with paragraph 3(iv) did not require the pleading in terms to recite for each defendant by giving the item number or numbers, which of the numbered paragraphs of the schedule under paragraph 6 of the Particulars of Claim is or are said to plead damage or defects caused by that defendant.

That would have been the obvious way to comply with paragraph 3(iv), and I see no reason why it was not done in that way. Nonetheless, the real question under paragraph 3(iv) is whether the amended pleading specified, i.e. stated clearly and precisely, which of the scheduled items said to require repair were allegedly caused by any given defendant, together with the grounds on which that allegation of causation was made.

That is the real question, in my judgment, because if the amended pleading achieved that but did so without explicitly cross-referencing the numbering in the schedule, the non-compliance would be immaterial, even though paragraph 3(iv) read literally does seem to call for such an explicit enumeration; and even though, as I have said, enumerated cross-referencing would surely have been the obvious competent way to comply with the unless order.

The primary submission advanced by Mr Simms on behalf of the claimants was that the unless order was impossible of compliance. That would have involved necessarily a concession of non-compliance that was fatal to this appeal. It might perhaps have formed part of a ground for appealing against the unless order, but permission for any such appeal was definitively refused in this court as I have explained.

Although I detected some reluctance to move away from that submission, despite its implications, ultimately Mr Simms did not rest the claimants’ case on it. That is to say he did also contend that the order had in fact been complied with, although he had made no attempt in writing to set out item by item from paragraph 3 of the unless order where it was said that the matters required to be specified had been pleaded in the Amended Particulars of Claim, and he made no attempt which I can say I found effective to carry out that exercise in his oral argument.

His essential submission as to compliance instead was that what had been pleaded was sufficient in law, if made good at trial, to fix each of the defendants with a liability. But that, in my judgment, suffers from an error of analysis similar to that of the impossibility submission. The question for Mr Recorder Hill-Smith and now before me was and is simply that of material compliance with that which had been ordered. If compliance with that which had been ordered would have involved pleading in some sense more than some bare minimum necessary to establish a cause of action for present purposes, so be it.

Conceivably, were that the case, an argument as to that might again perhaps have formed part of any reconsideration on appeal, if there were an appeal against the unless order, as to whether it had been appropriate to attach the unless order sanction of the striking out of the claim to a failure to specify the particular matters required by the unless order to be specified.

That said, and so there be no doubt about it, it is certainly not the case under the court’s case management powers as regards the granting of unless orders relating to the particularisation of pleadings that it cannot be a proper exercise of discretion, depending on the full circumstances of the particular case, to require and attach the sanction of striking out in the absence of full compliance with a particularisation that might be said to go beyond the bare minimum. All will depend on the particular circumstances of the case, and echoing some observations I have made already, as it seems to me on the face of things, HHJ Gerald’s unless order terms were carefully tailored to the way, but using general and vague allegations, these claimants had chosen to come to court to put forward a case. There may well have been nothing inappropriate about requiring them, given that that is how they had chosen to try to plead their claim, to provide certain basic matters, stated clearly and precisely, if they wanted to be able to pursue any claim at all against any of the defendants.

Mr Simms advanced a related alternative submission that the court has some general residual discretion not to strike out, or not to declare that a claim has been struck out, where are an unless order providing for the striking out of a claim as an automatic sanction has in some material respect not been complied with. The suggestion in effect was that such a discretion could, and in this case should be, exercised if despite material non-compliance with paragraph 3 of the unless order, if that be the conclusion of the court, what had been pleaded could be said to have achieved at least the bare minimum necessary to disclose some cause of action then to the law.

Mr Simms argued that the well-known decision of the Court of Appeal in Marcan Shipping (London) Ltd v Kefalas & Anr [2007] EWCA Civ 463; [2007] 1 WLR 1864 was authority for the existence of such a general residual discretion. But in fact that case is authority for precisely the opposite proposition. Applied to this case, Marcan Shipping confirms that any argument to the effect that material non-compliance ought not to have left or to leave claims struck out would have to be advanced either by way of appeal against the unless order, or by way of an application for relief from sanctions.

Keen Phillips (a Firm) v Field [2006] EWCA Civ 1524; [2007] 1 WLR 686, referred to in Marcan Shipping, is authority for the proposition that the court can entertain an application for relief from sanctions without a formal separate application. That was recognised by the Court of Appeal in Marcan Shipping, but as Moore-Bick LJ said at paragraph 33 in respect of that jurisdiction:

“... the jurisdiction is one which is likely to be exercised only rarely because it will usually be necessary for evidence to be placed before the court to enable it to consider the various matters to which rule 3.9 [ie CPR 3.9] refers. In that case [ie Keen Phillips], however, there was no dispute relating to the manner in which the judge are exercised his discretion, and rightly so, because it was accepted that the claimants’ failure to comply with the order had resulted from matters wholly outside its control, had caused no prejudice of any kind to the defendant and had had no adverse effect on the course of the proceedings.”

In this case, relief from sanctions is not how the matter was argued before Mr Recorder Hill-Smith, nor was there any evidence before him that might allow an application from relief from sanctions to be considered at all, let alone fairly to the defendants. Nor is it one of the claimants’ grounds of appeal that Mr Recorder Hill-Smith should have dealt with the matter in that way. It would not be appropriate or fair to the defendants to seek to approach the matter differently, that is to say through the lens of an application from relief from sanctions and the well-known requirements for such an application, for the first time only now on appeal.

None of Mr Simms’ general submissions was of any assistance to the claimants, therefore. If the appeal is to be allowed, it can only be because taking each relevant defendant in turn, the court can say that, contrary to the view of Mr Recorder Hill-Smith, the matters that paragraph 3 of the unless order required to be specified were indeed specified, i.e. stated clearly and precisely in the Amended Particulars of Claim.

Turning, then, to the recorder’s judgment at [7], he identified the task at hand being:

“... to look at how the claims were pleaded against each of the defendants to see if there has been compliance with the unless order. Because if there had been non-compliance that the claim is automatically struck out against those defendants.”

Mr Simms submitted that Mr Recorder Hill-Smith did not in fact undertake that task, but instead sought to assess the Amended Particulars of Claim more generally against what the recorder took to be the requirements for the claimants to have sustainable or fully particularised causes of action. The recorder gave a very short judgment indeed. The approved transcript runs to only 16 paragraphs over three pages. In two of those paragraphs, [10] and [14], there are slightly general comments that can perhaps be read as indicating that the recorder was looking beyond the requirements of paragraph 3 of the unless order for the benchmark against which to test the Amended Particulars of Claim for compliance.

But reading the short judgment as a whole, in my judgment, the recorder did in fact ask himself and seek to answer only the more simple question whether the Amended Particulars of Claim specified the matters that paragraph 3 of the unless order had required to be specified. If he erred, it will be because he either misread one or more of those individual requirements, or misjudged whether the Amended Particulars of Claim had satisfied them, not because he had embarked on the wrong task altogether.

However, the recorder dealt individually with only five of the defendants: the Londonium defendants other than D19; and D21, one of the Mono Law defendants. That is surprising, at all events given that he did not as regards any other defendant indicate that he had carried out similar scrutiny of the case pleaded against them so as to find it similarly non-compliant under the unless order, or even say, in general terms explaining why, that he was satisfied there was no material distinction to draw between the defendants so that compliance could be tested by reviewing just a few sets of particulars.

Further, the recorder seems to have paid somewhat scant regard to, and in my view misstated in part the effect of, the long paragraph of general allegations about the new management arrangements during the period of unlawful occupation of the Mosque, which is pleaded against all defendants and then supplemented for each individual defendants by the additional particulars, some of which the recorder considered.

He said the long and general paragraph:

“... pleaded that all the defendants were members of a committee of management of the mosque, including members of another group called Save the Masjid Action Group, who, it is alleged, participated in the managing of the mosque, or as directors of BPM, which is another company Becontree Masjid Limited.” (Judgment at [6])

I do not agree with that. As I have said, one of the difficulties with the original Particulars of Claim was that it did not make clear which, if any, of the defendants were said to be members of (as alleged) the new purported management committee. The amended version of the long opening paragraph of general allegations does not itself remedy that problem. Those concerns about the recorder’s approach do not mean that the recorder’s determinative conclusion was wrong for any given defendant; namely that paragraph 3 of the unless order had not been met. But it does mean, in my view, that the recorder’s judgment cannot be taken as a reliable guide to whether there was material non-compliance.

In the circumstances, I consider it is open to me and incumbent upon me to review de novo whether paragraph 3 of the unless order was satisfied and to dispose of this appeal one way or the other on the basis of the conclusions I reach upon that review. I turn therefore to paragraph 5 of the Amended Particulars of Claim. The long paragraph of general allegations with which it opens and to which I have already referred includes allegations that

For the purpose of this appeal, I take what is pleaded at face value so far as it goes. The issue is simply whether what is set out in the Amended Particulars of Claim specifies that which paragraph 3 of the unless order were required to be specified.

I should also mention that the long paragraph of general allegations includes a specific allegation that on 27 March 2016, a notice was displayed at the Mosque, inter alia listing the then current membership of the new management committee. The Amended Particulars of Claim refers to that document as “the Announcement”, so I shall also use that term for it for convenience.

Taking the general allegations at face value, then, the claimants allege that the new purported management committee came into existence on 1 November 2015 and that thereafter (1) the members of that committee, (2) some individuals from SMAG, namely those who participated in the management of the Mosque, and (3) from 16 March 2016, some of the directors of BTM, collectively took all decisions in relation to the Mosque, including all decisions pertaining to the fabric of the building. The members of the new committee are not identified; it is not said which of the members of SMAG are alleged to have participated in the management of the Mosque or how; and it is not said which of the directors of BTM are said to have participated in the taking of decisions in relation to the Mosque or how, either at all, or relating to the fabric of the premises in particular.

As I have indicated, the defendants’ specific particulars are then set out under that long paragraph of general allegations. They are set out in 22 numbered paragraphs, one for each defendant. Given the general allegations at paragraph 5 which I have summarised, a start would be made towards complying with paragraphs 3(i) and 3(iv) of the unless order for any given defendant as regards his participation in the Management Committee, if that be alleged, if the particulars against him alleged, giving the grounds for doing so, that he was a member of the new purported management committee; or a SMAG individual who participated in the management of the Mosque; or a director of BTM who participated in the alleged collective decision making.

But then it would need to be specified, that is (I repeat) stated with clarity and precision, how it is said he participated in decision making in the capacity alleged so as to satisfy paragraph 3(i); over what period within November 2015 to March 2016 that was alleged so as to satisfy paragraph 3(iii); how any decisions in which that defendant was thus alleged to have participated were implemented so as to satisfy paragraph 3(ii); and by some means or other, preferably although not necessarily by enumerated cross-reference, which of the scheduled items under paragraph 6 of the Amended Particulars of Claim were allegedly caused therefore by him and why so as to satisfy paragraph 3(iv).

The defendants with whom I am concerned are D2, D4, D7 to D11, and D13 to D22. Having examined carefully the defendants’ specific particulars against them and each of them as I have, it can be said compendiously that none of them states clearly or precisely any case as to how decisions of the management committee worked, or how any particular such decision was implemented. That means that paragraph 3 of the unless order is not complied with in respect of any of those defendants if their respective defendant-specific particulars do include an allegation of involvement in the making of decisions in relation to the Mosque through membership or participation in that alleged committee.

In the case of any such defendant, it will follow, as submitted in particular by Mr Croally for the Mono Law defendants, that paragraph 3(ii) of the unless order will not have been satisfied. If it was specified (that is to say stated clearly and precisely) that a given defendant is not alleged to have had any involvement in the making of decisions in relation to the Mosque, then: firstly, in my judgment, that would satisfy paragraph 3(i) of the unless order for that defendant (paragraph 3(i) did not oblige the claimants to run a case they could not or did not want to run of involvement in decision making at the Mosque); secondly, the only logical answer to paragraphs 3(ii) and 3(iii) of the unless order thought of as questions posed to the claimants would be not applicable or does not arise for that defendant (and I would be minded to say that a failure to say that in terms was not a material failure to comply with those parts of the order, so long as it had been made perfectly clear that participation in decision making was not alleged at all against the defendant in question); and thirdly, and therefore for such a defendant, the exclusive focus as regards paragraph 3 of the unless order would be on paragraph 3(iv), the need to specify which of the listed items of alleged damage it was said the defendant in question caused, and why that is alleged.

With all that in mind to shape the analysis, I can now proceed to consider, defendant by defendant, and using the defendant-specific particulars, whether by the Amended Particulars of Claim, the claimants have materially complied with paragraph 3 of the unless order.

D2 is alleged to have been named in the Announcement as vice-chairman of the management committee and it is alleged that he attended meetings of the management committee regularly. I wonder if that might have been intended to be an allegation that D2 was a member of the management committee throughout. But that is not stated clearly or precisely; nor in any other way is it specified over what period during November 2015 to March 2016 D2 is alleged to have been involved in decision making.

Paragraph 3(iii) of the unless order was therefore not complied with for D2 because he is alleged, albeit without the specificity required by paragraph 3(iii), to have been a member of the Management Committee. Paragraph 3(ii) of the unless order was not complied with either. Nor, in my judgment, does it state clearly and precisely how D2 is said to have participated in decision making to make, as the claimants do, an unparticularised bare allegation of regular attendance at meetings. In my judgment, that was a material non-compliance with paragraph 3(i) of the unless order.

There is a more specific but still vague allegation that D2 was involved in the decision to remove the internal office and change the locks, but what that involvement was and how that decision was implemented is not specified. It was also said he was active in trying to prevent the ousted imam from reoccupying his flat But that seems to me to have no bearing on the matters requiring to be specified by paragraph 3 of the unless order.

D4 is alleged rather opaquely to have been:

“... involved on a day to day basis ... in managing the Mosque through the allegedly unlawful occupation of the defendants in the possession action and the Management Committee.”

He is alleged further to have been a confidant of D1 and to have:

“... supported and assisted his actions in removing the office of Mr Bilal Ahmed, the removal of computers and associated equipment, the removal of carpets, the repositioning of radiators and the installation of air-conditioning in the Mosque.”

That does not identify clearly and precisely D4’s alleged involvement in decision making in relation to the Mosque. It falls short of an allegation that D4 was a member of the Management Committee, but then it leaves it entirely unclear whether it is being said that although not a member of that alleged Committee, D4 was involved in decision making; and, if so, how. Paragraph 3(i) of the unless order is not satisfied therefore in D4’s case.

Since it was not specified clearly that D4 is said to have had no involvement in decision making, it cannot be said that paragraph 3(ii) was inapplicable. But it, too, then was not satisfied by the particulars given.

Finally, what I have quoted leaves it entirely unclear which listed items of damage are said to have been caused by D4 or why that is said. D4 is one of the defendants whose position Mr Recorder Hill-Smith considered individually. He concluded that no time period was specified as required by paragraph 3(iii) of the unless order. I do not agree with that in the case of D4, given the reference to his having been involved throughout the period of occupation (as alleged). That includes necessarily the entirety of the period November 2015 to March 2016 upon which paragraph 3(iii) of the unless order focused. So if the unless order had otherwise been complied with in relation to D4, the particular requirement relating to that period would also have been complied with.

However, the recorder also concluded, as do I, that paragraph 3(ii) of the unless order was not complied with in respect of D4 and was concerned about paragraph 3(iv). Our reasons therefore differ somewhat, but our decisions are the same. I agree with Mr Recorder Hill-Smith that the claim against D4 was automatically struck out for failure to comply with paragraph 3 of the unless order.

D7 is alleged to have been a vice-chairman of the Management Committee, as it is said allegedly confirmed by the Announcement. As with D2, however, paragraph 3(iii) of the unless order was not complied with as regards the period; and because D7 is alleged to have been on the Management Committee, albeit without the specificity required by paragraph 3(iii), it follows that paragraph 3(ii) was not complied with. Also as with D2, there is not the clarity or precision required by paragraph 3(i) of the unless order. There is an additional but vague allegation that D7 was:

“Involved in the decision making for all the building changes.”

That did not specify what that alleged involvement was. That allegation put the claimants additionally in breach of paragraph 3(i) of the unless order, in my judgment.

D8 is also alleged to have been a vice-chairman of the Management Committee, as it is said confirmed by the Announcement, but with the same deficiencies in the time period as with D7. There is thus material non-compliance with paragraph 3(iii) and with paragraph 3(ii) of the unless order.

He is alleged additionally to have been “a member and leader of SMAG”, but no grounds for that allegation are given, contrary to paragraph 3(iii) of the unless order, and again there is not the clarity or precision required by paragraph 3(i).

D8 is said additionally to have collected donations from worshippers at Jama’ah prayers and at Ramadan, and at two Eid celebrations which were partly used, it is said, to fund building alterations. That does not amount to or include the specifying of any of the matters required to be specified by paragraph 3 of the unless order.

Like the allegations about preventing the ousted imam from reoccupying his flat put against D2, what I have just said in relation to D8 does not mean that there is necessarily anything wrong with that additional allegation in itself. It just means that it does not assist the claimants in any attempt to demonstrate compliance with the unless order.

Finally, D8 is said to have taken or been part of the taking of certain particular allegedly damaging actions; for example changing locks and removing Bilal Ahmed’s office. Those may be allegations the claimants would include against D8 if the claim against him was proceeding, but they do not supply the matters required by paragraph 3 of the unless order to be specified which were not otherwise specified.

D9 is alleged to have been “Assistant Treasurer as confirmed by the Announcement”, and he is said to have taken various actions consistent with being part of the Treasury function of an organisation. The pleading is not clear or precise as to whether he is said to have had that or any other role for the whole of the period November 2015 or March 2016, or for some part only of that period, and, if so, which part. As with D2, D7 and D8, therefore, there was material non-compliance with paragraphs 3(iii) and 3(ii) of the unless order, and there is here again also an equivalent failure to comply with paragraph 3(i).

As with D8, there are some additional allegations of the taking of certain allegedly damaging actions; for example in this case being involved in the removal of Bilal Ahmed’s office, or removing donation boxes. But they do not supply the missing information required by the unless order, whether or not they might themselves have been proper allegations that the claimants would have pursued as part of a claim that was proceeding.

D10 is alleged to have been the:

“Treasurer of the Management Committee (as confirmed by the Announcement).”

Heis said to have been the leading figure in relation to the collection of and expenditure of funds for the Mosque, and it is said he collected donations every week, including collecting funds to cover legal costs for the various litigation that sprung up. It is said also that he removed building materials, tools and equipment from the Mosque.

In my judgment, his position on the pleadings is materially the same as that of D9 so far as the compliance with the unless order is concerned.

D11 is alleged to have been:

“... a member of the Executive committee of the Management Committee (as confirmed by the Announcement).”

There is also a vague allegation that D11 was “involved in the forcible takeover of the Mosque”, and certain particular actions taken in relation to the fabric. His position on the pleading is materially the same for present purposes as that of D2.

D13 is alleged to have been chairman and CEO of the Management Committee allegedly as confirmed by the Announcement. It is alleged that he was a ”firm supporter” of D1 and “a principal decision maker in relation to all changes made to the Mosque”, and (by way of partial duplication) that he was:

“Involved in the decision making and implementation of the removal of Mr Bilal Ahmed’s office in the Mosque.”

Being possibly generous to the claimants, I might be prepared to read that as sufficiently specifying involvement as chairman and CEO of the management committee throughout. However, paragraph 3(ii) of the unless order was still not complied with.

Finally for D13, he is said to have been the spokesman for the Management Committee to the local authority, the local MP, local councillors and the Charity Commission. That bears no apparent relation to the matters required to be specified by paragraph 3 of the unless order. If it was intended to be part of compliance with paragraph 3 rather than something different, it certainly does not state clearly or precisely any of the matters required to be specified.

It is possible to take all these defendants together. Each is alleged to have been an executive committee member of the Management Committee, as it is said confirmed by the Announcement, and to have been part of the taking of certain specific allegedly damaging actions; for example the removal of the contents of the office (D14), the moving of radiators (D15), the removal of the door to the imam’s apartment (D16), the changing of locks and the removal of the office (D17 and D18), the removal of the office and an alleged failure to deal properly with leaking air-conditioning pipes (D19).

As regards compliance with paragraph 3 of the unless order, in my judgment, these defendants are in materially the same position as D2.

D16 is another of the defendants whose position was considered individually in Mr Recorder Hill-Smith’s judgment. As I have done, the recorder concluded that paragraph 3(ii) of the unless order was not complied with; likewise the period element of paragraph 3(iii). The recorder also considered that paragraph 3(iv) had not been complied with because the defendant-specific particulars for D16 do not “identify the items on the schedule”. Read in context, I think the recorder was by that treating the absence of enumerated cross-referencing to the schedule under paragraph 6 of the amended Particulars of Claim as material non-compliance in and of itself.

I made clear earlier in this judgment that I would not go that far. That difference between us does not mean, however, that I differ from the recorder’s overall conclusion for D16 that there was material non-compliance with paragraph 3 of the unless order.

These defendants can also be taken together. Like D4 to D19, D20 and D22 are each alleged to have been confirmed by the Announcement as executive committee members of the Management Committee and to have been part of the taking of certain specific allegedly damaging actions; for example the removal of the office. In addition, each is alleged to have collected donations from worshippers. It is far from obvious that that additional obligation is of any relevance to the causes of action for property damage and/or removal of chattels which is the subject matter of the Amended Particulars of Claim in the bare terms in which that additional allegation is pleaded.

Be that as it may, on any view, it does not specify any of the matters required to be specified by paragraph 3 of the unless order. The position of D20 and D22 therefore on analysis is, in my view, no different to that of D14 to D19.

D20 and D22 were considered individually by the recorder. As with D14 to D19, he appears to have treated the lack of explicit enumerated cross-referencing to be a material failure in itself to comply with paragraph 3(iv) of the unless order, which is not my view. However, I agree with his conclusions that paragraph 3(ii) was not complied with, nor paragraph 3(iii) as regards period. He said of the additional allegation about collecting monies as regards D20 that “that in itself would not support a claim of trespass”, and as regards D22, “that is not a pleaded claim”. It will be clear that may not be quite how I would put the matter, but the material point is that the recorder and I are agreed that the money allegation does not result in any compliance with paragraph 3 of the unless order not otherwise achieved.

Finally, then, D21 is alleged to have been:

“... a member of SMAG pursuing their campaign against the claimants by TV and newspapers.”

The grounds of that allegation are not specified, nor is it made clear whether that is supposed to be an allegation of involvement in decision making or not. Apart from that additional detail, the pleading against D21 is materially similar for my purposes to the pleading against D20 and D22, save that in his case, it is alleged that he permitted donations to be collected to be used for building alterations said to have been unauthorised by the claimants, so that a relevance to the pleaded subject matter of that allegation is clearer.

The greater clarity on that point does not mean, however, that the plea about donations specifies any of the matters required by paragraph 3 of the unless order to be specified.

Drawing all of the threads together, then, I conclude, as did the recorder (although not all of our reasoning is the same) that there was material non-compliance with paragraph 3 of the unless order in relation to all of the defendants as against whom the status of the claimants’ claim is before the court for consideration on this appeal.

Common to all those defendants was failure to comply with paragraph 3(ii) of the unless order. For all of them except D13, there was also material non-compliance with paragraph 3(i) of the unless order; and for all of them except D4 and D13, there was also failure to any material extent to comply with paragraph 3(iii) of the order.

As regards paragraph 3(iv) of the unless order, I have not agreed with the approach taken by the recorder about that which material compliance required. There is, however, a generality and vagueness of language in the defendants’ particulars and a lack of consistency of language between them and the itemised schedule under paragraph 6 of the Amended Particulars of Claim.

As a result, in the absence of enumerated cross-referencing, it is far from obvious to me that there was material compliance with paragraph 3(iv) of the unless order, but I do not need to reach a final conclusion as to that paragraph, and will not take up more of the parties’ time by lengthening this judgment by an attempt to do so.

It will follows from my conclusion as to compliance with paragraph 3 of the unless order that I agree with the recorder that for each of the defendants who is a subject of this appeal, the claim against him was automatically struck out at 4.01 pm on 7 April 2023. This appeal by the claimants against the recorder’s orders granting declarations confirming that reality therefore fails and is dismissed.