Bukhari v Pow Trust & Ors

On 6 March 2008, upon the application of the Claimant (“Mr Bukhari”), Butterfield J made a Civil Restraint Order (“the CRO”) against POW Trust, Peter Sainsbury (“Mr Sainsbury”) and John McVicar (“the Respondents”). The first application to set aside the CRO was made on 26 March 2008. Owen J heard counsel for Mr Bukhari and Mr Sainsbury in person. He refused the application, declaring it to be totally without merit. A second application to set aside the CRO was made by Mr Sainsbury by notice dated 4 September 2008. That application was granted by Christopher Clarke J on 14 November 2008 at a hearing attended by Mr Sainsbury, but not by anyone on behalf of Mr Bukhari. On 17 December there came before me sitting in the interim applications court an application on behalf of Mr Bukhari, represented by Mr Rifat, to re-instate the CRO.

Mr Sainsbury was a director of POW Investments Ltd (in Administration). He apparently controls POW Trust, which describes itself on its letter paper as “A Benevolent and Social Welfare Charity devoted assisting the ‘Socially Excluded’, registered charity number 1073917, and gives its address as 295a Queenstown Road, Battersea. All applications referred to in this judgment as made by Mr Sainsbury were made by him claiming to represent POW Trust.

In para 16 of his judgment Christopher Clarke J stated that he had had considerable difficulty in determining the sequence of events, because he did not have a chronological bundle. In para 3 of his judgment Christopher Clarke J stated that he did not have all the orders that bear on the question, but he was satisfied that he had the relevant ones. My difficulties have been similar and I believe greater. Mr Bukhari is represented by Mr Patel, of Alliance Solicitors and Mr Rifat of counsel. Mr Patel has attempted to put before me a chronology and a chronological bundle, but it is not complete. Mr Rifat states that Mr Patel does not have all the application notices and orders. Mr Sainsbury has made no attempt to assist the court with the chronology. He has merely put in a short witness statement dated 16 December 2008. That was made available to me when I entered court.

There are three claims by Mr Bukhari in the Wandsworth County Court which I shall refer to individually by their numbers, and collectively as “the possession proceedings”. In 6WT10592 on 14 February 2007 HHJ Birtles had ordered (1) the underlease dated 26^th March 2004 between Mr Bukhari and POW Investments Ltd (in Administration) be forfeit and (2) that that company and two other defendants who are named only as “2 others” give possession of premises at 341 Queenstown Road, Battersea “on or after 15 March 2007” and (3) that the three defendants pay Mr Bukhari £168, 575. That order appears to have been drawn erroneously as to the date for possession, and on 30 August HHJ Birtles varied that order of 14 February to provide that possession was to be given on 15 March 2007. Mr Sainsbury appeared and made representations for the defendants. Mr Bukhari claimed as lessee of the premises at 341 Queenstown Road pursuant to a lease dated 25 September 2002 (referred to as the superior lease) assigned to him on 20 December 2004 by Regent Square Investment Ltd. The premises are primarily commercial, but there is provision in the superior lease for residential occupancy of two units above known as 341A and 341B. The assignors of the superior lease had underlet the property to POW Investments Ltd. The underlease commenced 26 March 2004 at a rent of £61,300 per year. That company entered into administration on 22 April 2005.

In 6WT10245 on the same date, the same judge made an order in an action between POW Trust as claimant and Mr Bukhari as defendant, dismissing the application of POW Trust for a vesting order. POW Trust had asked for a vesting order on the basis of an alleged agreement with Mr Bukhari. Having heard Mr Bukhari and Mr Sainsbury HHJ Birtles found that no agreement had been made.

In 7WT10420 on 10 May 2007 Mr Recorder Spon-Smith made an order in an action in which the Claimant was Mr Bukhari and the Defendants were “Persons Unknown”. He heard counsel for both parties and ordered that Mr Angelo Silva be joined as a defendant, and that the defendants give to the Claimants possession of 341A and 341B of Queenstown Road on or before 24 May 2007. Mr Bukhari learnt of the presence of residential occupiers when bailiffs attended at the end of March to execute the possession order he had obtained. Mr Sainsbury was present and Mr McVicar telephoned to claim that he was in occupation of 341A by a lease between himself and POW Trust. On 10 May Mr Silva claimed to be another residential occupier.

Also on 10 May DJ Haberson dismissed an application by POW Trust and Mr Sainsbury for an order to prevent the Claimant from executing the possession order.

On 29 June 2007 bailiffs attended to evict the defendants. The Claimant’s case is that writs of execution were issued on 1June.

The CPR Part 3.11 provides:

“A practice direction may set out – (a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings; (b) the procedure where a party applies for a civil restraint order against another party; and (c) the consequences of the court making a civil restraint order.”

The Practice Direction 3C provides:

“2.1

A limited civil restraint order may be made by a judge of any court where a party has made 2 or more applications which are totally without merit.

2.2

Where the court makes a limited civil restraint order, the party against whom the order is made –

(1)

will be restrained from making any further applications in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order;

(2)

may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; …

2.3

Where a party who is subject to a limited civil restraint order –

(1)

makes a further application in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order, such application will automatically be dismissed –

(a)

without the judge having to make any further order; and

(b)

without the need for the other party to respond to it;

(2)

repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss the application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal.

2.4

A party who is subject to a limited civil restraint order may not make an application for permission under paragraphs 2.2(1) or 2.2(2) without first serving notice of the application on the other party in accordance with paragraph 2.5.

2.5

A notice under paragraph 2.4 must –

(1)

set out the nature and grounds of the application; and

(2)

provide the other party with at least 7 days within which to respond.

2.6

An application for permission under paragraphs 2.2(1) or 2.2(2) –

(1)

must be made in writing;

(2)

must include the other party’s written response, if any, to the notice served under paragraph 2.4; and

(3)

will be determined without a hearing.

…

2.9

A limited civil restraint order –

(1)

is limited to the particular proceedings in which it is made;

(2)

will remain in effect for the duration of the proceedings in which it is made, unless the court otherwise orders; and

(3)

must identify the judge or judges to whom an application for permission under paragraphs 2.2(1), 2.2(2) or 2.8 should be made.”

The CRO restrains the Respondents from making any further application in the possession proceedings without first obtaining the permission of a High Court Judge. Mr Sainsbury has made every effort to return to occupy these premises from which he, the other Respondents and Angelo Silva claim to have been wrongly evicted. In accordance with the Practice Direction 3C, para 2.1, the CRO stated that Butterfield J had found that the Respondents had made two or more applications in the possession proceedings which were totally without merit.

The CRO does not itself identify these applications found to be totally without merit. But it does refer to a witness statement of Mr Sanjeev Harash dated 3March 2008. He is a trainee in the firm of solicitors, Alliance Solicitors, who represent Mr Bukhari, subject to the supervision of Mr Patel. That witness statement refers to an order of Ouseley J dated 5 July 2007, in which Ouseley J records that three applications by the Respondents were totally without merit. These were two applications dated 29 June 2007 (by POW Trust through Mr Sainsbury and by Mr Silva) and a third dated 3 July 2007 (by POW Trust through Mr Sainsbury and by Mr McVicar) to stay the orders for possession in the possession proceedings. On 29 June Mitting J had made these and related orders on the two applications of 29 June. Ouseley J discharged the orders of Mitting J made on 29 June and dismissed the third application dated 3 July 2007.

Mr Harash stated that the defendants to the possession proceedings were not tenants, or licensees, that they had no entitlement to be in the premises, but were refusing to leave the premises and had paid and were paying nothing for their occupation.

Mr Harash stated that Mr Sainsbury and Mr McVicar had made the application to Mitting J on the afternoon of 29 June 2007 without notice. I have copies of Mitting J’s two orders in similar terms, one in favour of POW Trust and the other in favour of Mr McVicar. Mitting J set aside the writs of execution, stayed the execution of the possession orders, declared that the applicants were entitled to resume possession of the premises forthwith and ordered that they be provided with re-entry. Neither side has produced to me a copy of the evidence put before Mitting J.

Mitting J also gave permission to Mr Sainsbury and Mr McVicar to serve an application notice on Mr Bukhari for 5 July. Accordingly they issued the Application Notice dated 3 July 2007 which refers to the orders of Mitting J and states that on the morning of 29 June the writ of eviction was enforced in the presence of police officers. They gave notice of an application for an order to join Mr McVicar, and to continue the stay.

Mr Harash quotes from a statement from a witness statement of 4 July 2007 which he says indicates that Mr Sainsbury had seriously misled Mitting J, and which he states to be false. The words he quotes are “POW Trust has been in occupation of the property since mid-2002 and the lease has been assigned to the POW Trust until 18^th March 2026”. I have not seen that witness statement dated 4 July 2007.

It was on 5July 2007 in the morning that Ouseley J set aside the orders of Mitting J and stated that the two applications to Mitting J were totally without merit. He dismissed the applications made by notice dated 3 July, and, by para 4, ordered that any further application relating to the enforcement or the execution of the orders for possession dated 14 February and 10 May “must be made giving not less than 48 hours written notice to [Mr Bukhari] and where such notice is not given no application shall be made or issued”. He adjourned an application by Mr Bukhari for a civil restraint order to 10 July.

Mr Sainsbury did not attend court in the morning of 5 July, but he did attend on the afternoon. By that time there was no one attending for Mr Bukhari. Mr Sainsbury applied for an order setting aside the order Ouseley J had made that morning. Ouseley J adjourned that application to 10 July and gave directions.

On 10 July 2007 Silber J further adjourned the application until the final disposal of an application Mr Sainsbury had made for permission to appeal against the order of HHJ Birtles which is referred to as dated 22 February, but which I take to be the order that was made on 14 February. Silber J ordered Mr Sainsbury to supply by the next day to the Appeal Office a copy of the transcript of the judgment of HHJ Birtles, failing which the appeal was to stand dismissed. I have not seen any such transcript. In any event, on 2 August 2007 Openshaw J heard Mr Sainsbury on his application for permission to appeal and dismissed that application and a further application for a stay of the writ of execution. The recital to the Order of Openshaw J records that the application he was dismissing was an application

“made by Appellant’s Notice dated 18 May by POW Trust for permission to appeal the Order of HHJ Birtles dated 22^nd February 2007 and for continuation of the stay of the Writ of Execution dated 1^st June 2007 issued out of the Leeds District Registry … in proceedings between [Mr Bukhari] and Mr Angelo Silva and Persons unknown for possession of the premises at 341A and 341B Queenstown Road…”

Nevertheless, on 22 August 2007 Mr Sainsbury and Mr Silva made an application to Wandsworth County Court for a stay of the possession order in 7WT10420. The grounds referred to an issue arising between Mr Bukhari and the superior landlord. Mr Harash states that this application was in breach of para 4 of the order of Ouseley J in that no notice was given to Mr Bukhari. DJ Gittens dismissed this application without a hearing on 19 September. He gave as his reasons first that POW Trust was not a party to that action and second that “the claim is one for possession against defendants who do not have a tenancy, and no finding has been made that any defendant has a tenancy”. DJ Gittens added that issues between Mr Bukhari and the superior landlord were irrelevant to the outright possession order. DJ Gittens did not state that this application was wholly without merit, but Mr Harash submits that it was. Mr Sainsbury in his witness statement of 16 December 2008 and in argument before me Mr Sainsbury made similar points relating to issues between Mr Bukhari and the superior landlord. I agree with DJ Gittens that these points are irrelevant.

On 3 October the POW Trust made a further application for a stay in 7WT10420 and 6WT10592 to the Wandsworth County Court asking the court to stay the possession orders and to decide whether it should pay rent directly to the superior landlord. Mr Harash states that this application was in further breach of para 4 the order of Ouseley J in that no notice was given to Mr Bukhari.

On 26 October DJ Gittens heard Mr Sainsbury and Mr Silva in person and without notice, and adjourned the application of 3 October to 1 November, suspending the possession orders of 10 May and 30 August meanwhile. His order added “at the hearing [Mr Bukhari] to produce evidence as to the issue of a warrant of possession to the above orders”.

This order gives rise to a point about warrants that has remained live and was critical to the judgment of Christopher Clarke J. I have seen no record or transcript of the reasons why DJ Gittens ordered production of evidence of a warrant for possession. This is an issue which arose (if at all) in the proceedings in the Wandsworth County Court, and does not arise directly in these proceedings in the High Court. I have heard no submissions, and am not aware that any other Judge in the High Court has heard submissions, as to why such evidence might have been ordered to be produced at that stage.

On 1 November 2007 HHJ Knowles heard Mr Sainsbury, Mr Silva and solicitors for Mr Bukhari. She made an order that the orders for possession be not enforced pending the hearing of the application made on 3 October, which was listed for 18 December. But the recital to the order contained errors (the square brackets indicate what should have been written, as appears from the transcript of the hearing referred to below):

“And upon the Court [not] being satisfied that the appropriate evidence as to the issue of a warrant of possession pursuant to the orders of 10^th May and 14^th February 2007 as amended 30^th August 2007 has been furnished to the Court in pursuant of [pursuant to] paragraph 3 of the order dated 26^th August [October] 2007.”

On 18 December 2007 HHJ Behar heard Mr Sainsbury and Mr Rifat for Mr Bukhari and dismissed the application made on 3 October 2007. I have seen no note or transcript of his reasons. In the witness statement dated 3 December 2008 at para 4g Mr Patel stated that representatives from the bailiffs attended this hearing and all relevant paperwork regarding the issue of warrants was furnished. In para 8 of his witness statement Mr Patel states that he realised that the order of HHJ Knowles might not accord with his recollection of the hearing, and for that reason he warned counsel to deal with it at the hearing before HHJ Behar, and it was for that purpose he requested the attendance of the bailiffs. Further, he states that HHJ Behar was satisfied that it was irrelevant whether the defendants were furnished with evidence of the issue of warrants for possession, as they were not tenants, and this point provides no ground for staying an eviction against trespassers. Finally he states that he had “served the Writs on the Defendants on 30^th October and 14^th February 2008” and that the Defendants “actually exhibit the Writs (they say they did not receive) in their witness statements of 10^th July 2007 and 21^st February 2008”.

Mr Sainsbury in para 2 his witness statement of 16 December 2008 responds specifically to this paragraph of Mr Patel’s statement. Mr Sainsbury states that in this paragraph Mr Patel admits for the first time that he knew full well that the order was seriously flawed, but that he still allowed further court hearings to go ahead without agreeing to the amendment of the order. But Mr Sainsbury does not address the other evidence given by Mr Patel as to the attendance of the bailiffs and as to HHJ Behar being satisfied that the issue was irrelevant. He goes no further than a general statement that “the judges commented, without an amended order they have to dismiss the Defendants protests. Mr Patel drafted the order, with the full knowledge of what he drafted, knowingly drafted the complete opposite to HHJ Knowles Order”. But Mr Sainsbury does not name HHJ Behar as one of these judges who “commented”. In para 10 of his statement Mr Sainsbury states that “HHJ Behar did not see any evidence of the warrant of possession, and refused a without merit application. The Defendants vigorously requested evidence of the warrant of possession. To this day it has still not been produced”.

What Mr Patel states about the warrants is not specific. I am therefore unable to make any finding as to whether any specific evidence as to the issue of the warrants was provided, or was not. And I have difficulty in understanding what Mr Patel states about “Writs” he served on 30^th October 2007 and 14^th February 2008. I was not taken to the documents.

On the other hand, I am equally unable to find that HHJ Behar was under any misapprehension as to the position in relation to the warrants referred to in the order of HHJ Knowles.

I do not understand that the issues I have to decide require me to make a finding as to whether HHJ Behar was satisfied that the point was irrelevant. That is a point made by Mr Patel, and not contradicted by Mr Sainsbury. But it is a point that I would expect to be resolved, not by witness statement, but by reference to a transcript. If either side attempted to obtain a transcript of the reasons given by HHJ Behar, I have not been told. Mr Sainsbury went to some trouble to obtain a transcript of the remarks of HHJ Knowles, and I would have expected him to do the same for the reasons of HHJ Behar, since it is his claim that HHJ Behar did not see any warrants, and that that point matters. If I do have to make a finding, then on the evidence before me I accept Mr Patel’s evidence is correct when he says that HHJ Behar considered that the point Mr Sainsbury makes about the warrants was irrelevant, and provided no ground for staying an eviction against treapassers. I should add that any findings that I make in this judgment are on the documents only. Neither side has applied to cross-examine.

On 27 December an application was made for permission to appeal the order of HHJ Behar. Mr Sainsbury has not given me any information about this application. This application for permission to appeal is not mentioned by Mr Harash in his statement, and there is no evidence that he would have been aware of it. I called for the court file (ref CC2007PTA809) which was provided to me during the hearing. It does not contain the Appellants’ Notice. What it does contain is a copy of the CRO and a witness statement and skeleton argument by Mr Sainsbury dated 30 December 2007, together with other witness statements of Mr Sainsbury and Mr McVicar. The argument includes many complaints against solicitors and counsel for Mr Bukhari, and the judge, including, at para 42 “The judge failed to order [Mr Bukhari] to ‘produce evidence as to the issue of a warrant of possession’ as ordered by the previous court after [Mr Bukhari] and his legal team decided not to take any notice of the order”. Mr Rifat for Mr Bukhari did not have an opportunity to make submissions to me on the contents of the file (Mr Sainsbury could have done so, had he chosen, since they were his documents). Para 42 of his Skeleton is not inconsistent with HHJ Behar having regarded the evidence as to the warrants as immaterial to his decision.

On 18 January 2008 Mr Sainsbury made a fresh application to Wandsworth County Court in 6WT10592 and 7WT10420 for an order dismissing the possession orders “because abuse of process and oppression”. Part C of the form refers to a statement and skeleton argument which I have not seen. This was listed for hearing on 22 February 2008. On 14 February 2008 Mr Bukhari issued an application notice for a civil restraint order.

On 22 February 2008 DDJ Sadd heard counsel for Mr Bukhari and Mr Sainsbury in person. She adjourned the application for the civil restraint order, and dismissed the application dated 18 January 2008 by Mr Sainsbury finding it to be totally without merit. This was, therefore, the fourth application in respect of which a court had made the finding that an application was totally without merit (the other three being by Ouseley J). It was the second such finding in relation to an application by POW Trust and Mr Sainsbury.

Meanwhile, on 25 February 2008 Mr Sainsbury issued an application notice for POW Trust and Mr Silva asking for an order that Mr Bukhari provide further information. On 29 February 2008 Mr McVicar issued an application notice in the possession proceedings asking for an order setting aside “the above orders”, by which he referred to the orders for possession. The grounds include “The Claimants have colluded in a mistake by Judge Knowles on 1.11.07 that meant I have to see the Writs of Execution. They are unserved”.

It later became apparent (from a letter dated 20 October 2008 to this Court) that on 25 February 2008 Mr Sainsbury had also made a tape transcription request for the hearing before Her Honour Judge Knowles on 1 November 2008. On the same date he had written to Wandsworth County asking to inspect the file to ascertain what was the evidence before the court when it made the possession orders The letter referred to para 3 of the order of 26 August 2007, which he said had not been served upon himself.

There is a skeleton argument of Mr Rifat for Mr Bukhari dated 4 March 2008. In it he submitted that the orders for possession were not subject to appeal, and refers to the refusal of permission by Openshaw J. He states that Mr Bukhari issued further writs of possession dated 11 September 2007 and that they are ready for execution. He refers to the applications found to have been made totally without merit by Ouseley J and DDJ Sadd, and to the applications of 22 August, 3 and 26 October, which he submits were also without merit. He submits that the applications of 22 August and 26 October were also made in breach of para 4 of the Order of Ouseley J. In response to the complaint that Mr Bukhari had “colluded in a mistake by Judge Knowles” the skeleton argument states that the Respondents have been shown copies of the Writs of Possession, and that there was no obligation to serve the Writs on the Respondents. But it also erroneously includes the sentence “The Order of HHJ Knowles records the fact that she was shown the Writs to her satisfaction” (erroneously, because although that is what the order does purport to record, it is now demonstrated that the order omitted the word “not” that HHJ Knowles had said should be included).

Finally (before 6 March 2008) Mr Sainsbury issued an application notice dated 5 March 2008 asking for a stay of the possession orders on the ground of failure to produce evidence of the issue of a warrant for possession and to respond to Part 18 enquiries.

The above sets out the main information from the witness statement of Mr Harash, and the skeleton argument of Mr Rifat, on the basis of which Butterfield J made the CRO.

In the CRO it is also ordered that the application of Mr McVicar of 29 February 2008 be dismissed as wholly without merit (the fifth such finding).

Mr Patel states in his chronology that on 6 March 2008 the Possession orders were executed. It appears from POW Trust’s letter dated 20 October 2008 that the current address of POW Trust is at 295a Queenstown Road. In submissions to me Mr Sainsbury said that POW Trust and himself were not now in occupation of the premises.

On 1 April 2008 Owen J made an order recording that Mr Sainsbury had issued an application notice dated 26 March 2008 to set aside the CRO. He heard Mr Sainsbury in person and no one attended for Mr Bukhari. He adjourned the matter to 4 April. On 4 April Mr Rifat attended on behalf of Mr Bukhari, and Mr Sainsbury appeared in person. He refused the application, declaring it to be totally without merit (the fifth such finding, and the third in relation to POW Trust and Mr Sainsbury).

The fact that an oral hearing ended in that way raises a question as to the effectiveness of the rules. An oral hearing of an application for permission to apply to discharge a civil restraint order is by its nature likely to defeat the purpose of the order. To prevent this, Practice Direction 3C, para 2.2(2), provides that permission is required to apply to discharge a civil restraint order, and para 2.6(3) provides that the application for permission will be determined without a hearing. The order of Owen J records that it is made on an application for permission, and yet it was held orally and not without a hearing, as the Practice Direction provides. The papers before me do not indicate why this was so.

On 24 May 2008 Mr Sainsbury wrote to Alliance Solicitors (with a copy to Wandsworth County Court) stating that he understood that Mr Patel had drafted the order of Her Honour Judge Knowles, and enclosed a transcript of the judge’s remarks in which she is recorded as saying in the recital to the Order that she was not satisfied, not that she was satisfied. Mr Sainsbury has given no basis for his suggestion that Mr Patel drafted the order.

In that letter Mr Sainsbury requested Mr Patel to agree to an amendment to the Order within seven days. The transcript records her reading out the whole of the Order she was proposing to make. The Order read out is verbatim what was drawn, except that it does not contain the errors noted above (most notably the word ‘not’ is included, and the date of the earlier Order given in the recital is correctly given as 26 October). The Order of 1 November 2007 as drawn is on the standard form used by County Courts. In these circumstances I think it likely that it was drawn up by a court official, and unlikely that it was drawn up by Mr Patel.

On 2 June 2008 Mr Sainsbury wrote to Wandsworth County Court stating that he had received no response, and asking Her Honour Judge Knowles to rectify her Order of her own motion. On 26 June 2008 he wrote to Wandsworth County Court again, saying he had received no response to his letter of 2 June 2008. On 26 June 2008 Wandsworth County Court replied that they would notify him of their decision in due course. Mr Sainsbury sent a reminder on 22 July, and another on 22 August (in which he referred to a visit he had made to the Court).

On 4 September 2008 Mr Sainsbury issued an application notice asking to set aside the CRO which by then had been in place for six months. He addressed a copy to Butterfield J. By implication this was to seek the permission required by para 2.2(2) of the Practice Direction, and informing him, amongst other matters, that the premises remained empty.

A fax Message Transmission Report dated 4 September 2008 records that 4 pages were sent by Mr Sainsbury to Mr Harash at Alliance Solicitors on that date including a copy of the Application Notice.

The grounds Mr Sainsbury gives for the application to set aside are as follows:

“(1)

to appeal Deputy District Judge Saad Order, dated 22 February, because she was not in possession of Her Honour Judge Knowles Order, dated 1 November 2007, amended 20 June 2007, (collected from Wandsworth County Court on the 1 September 2008 because of the failure of the court after continual pressure to amend the Order under the Slip Rule and to serve the Defendants). Her Honour Judge Knowles reverses completely her previous Order stating “the court was not satisfied that the appropriate evidence as to the issue of the Warrant of Possession pursuant to the Orders of the 10 May 2007 and 14 February 2007 has been furnished to the court”.
(2) The Claimant has deceived the courts by refusing to disclose the correct text of Her Honour Judge Knowles Order…[The Notice continues, referring to the order of DJ Gittens, dated 26 October 2007, and concludes:]
(4) Limited Civil Restraint Order, dated 6 March 2008; the Claimant Syed Bukhari, failed to advise the court about the serious error in Her Honour Judge Knowles Order; Mr Justice Butterfield did not accept the Defendant’s vigorous objections because the Claimant’s counsel failed to inform the judge the truth about Her Honour Judge Knowles Order”.

In his statement dated 16 December 2008 Mr Sainsbury informs the court that Christopher Clarke J had “full access to the file include access to the Claimant’s comprehensive statements in support of the Limited Civil Restraint application”. He gives no further details and was unable to tell me orally any more details of what was before the judges on 17 October and 14 November. He also refers in his statement to the matter being before King J on 3 October 2008, but I have no information or papers about that.

On 17 October 2008 David Clarke J heard Mr Sainsbury in person, Mr Bukhari being neither present nor represented. His order records that “An application was made by Notice dated 3^rd October by the Applicants for permission to apply to set aside” the CRO. Notwithstanding para 2.6(3) of the Practice Direction, the Order thus makes clear that this was an application for permission to apply to discharge, and not an application to discharge.

David Clarke J made an order adjourning the application for permission to apply to set aside the CRO. He directed that:

“2.

This Court obtain information from Wandsworth County Court as to the circumstances in which the Order of Her Honour Judge Knowles dated 1^st November 2007 came to be amended on 20^th June 2008 by the handwritten insertion of the word “not”, together with copies of correspondence between that Court and Mr Sainsbury/POW Trust in connection with that amendment. Wandsworth County Court to be requested to respond within 14 days.

3.

Mr Sainsbury to lodge with this Court copies of all correspondence with the Wandsworth County Court in connection with that amendment

4.

On receipt of the aforesaid information and correspondence, this application to be re-listed before a High Court Judge with a time estimate of 30 minutes

5.

Mr Sainsbury, on receipt of the date and time of the re-listed hearing to notify [Mr Bukhari]’s solicitors of the same forthwith

6.

The papers before the Judge on the resumed hearing to include the Order of Mr Justice Owen dated 4^th April 2008”.

On 20 October 2008 Mr Sainsbury wrote to the Clerk at Court 37 referring to the Order of 17 October 2008. He enclosed copies of the correspondence referred to above relating to the transcript and to the amendment he was requesting be made to the Order of HHJ Knowles. He also asked for a copy of the Order of Owen J of 4 April which he said had not been served upon him.

On 21 October 2008 Wandsworth County Court wrote to the Clerk to the Interim Applications Court enclosing correspondence between Mr Sainsbury and that Court, the letter dated 24 May 2008 from Mr Sainsbury to Mr Patel, and the transcript of 1 November 2007. The letter is not clear as to how, by whom, or when, the manuscript amendment came to be inserted in the Order of 1 November 2007. It states: “It would appear that the order was amended following correspondence attached”. However, the manuscript amendment does have the Court stamp next to it and a manuscript endorsement “Amended 20 June 2008”.

There is on the file a copy of a letter dated 6 November 2008 from HMCS addressed by DX to Alliance Solicitors stating that the hearing of POW Trust’s application dated 4 September which was adjourned on 17 October by David Clarke J had been relisted to take place on 14 November. This letter was not provided for by the Practice Direction 3C. In form the application dated 4 September was an application to discharge. But no permission had been granted for the making of an application to discharge. In fact, as David Clarke J made clear, what was adjourned by him was the permission application. The Practice Direction makes clear that permission is required. It had not been granted and no one had suggested to Mr Bukhari or his solicitors that permission had been granted. There was no occasion for the court to notify Mr Bukhari of a permission application.

There is a fax Message Confirmation Report dated 14 November addressed to Mr Harash at Alliance Solicitors stating “Following my telephone message please be advised that the court office has set down the above case [the Claim references are given] to be heard not before 10.30am on the 14 November in court 37”. The Practice Direction para 2.4 provides that an applicant for permission notify the other party of the grounds of the application for permission. This letter does not make clear that what has been set down is a permission application. But that is the most that it could be construed as, no permission having yet been granted.

On 14 November the permission application was listed before Christopher Clarke J. When the Order of Christopher Clarke J came to be drawn up, it contained two separate provisions. The recital records that the application made by notice on 3^rd October 2008 was an application for permission, and para 1 of the order grants permission. However, para 2 of the order provides that “The Limited Civil Restraint Order dated 6^th March be discharged…”, thus granting the substantive application to set aside the CRO. He makes clear in his judgment that he is giving his reasons both for granting permission to apply to set aside the CRO, and for setting it aside: see para 15 of his judgment.

I respectfully differ from the view of Christopher Clarke J. The Practice Direction does not contain any provisions as to what is to happen if permission is given. But it is clear that the other party is not required to attend a permission hearing. It does not seem to me to be envisaged that the grant of permission should also result immediately in the grant of the substantive application to discharge, for if that were so, the other party would be denied the protection of the permission stage. The other party would have to treat an application for permission as capable of being also a substantive hearing, and so incur the costs of opposing the application. Those are the costs from which the requirement for permission is designed to protect him.

On 17 December 2008 Mr Bukhari issued his Application Notice to set aside the Order of Christopher Clarke J and to re-instate the CRO. The grounds are first, that the hearing on 14 November 2008 was in the absence of Mr Bukhari, and, second, that Mr Sainsbury seriously misled the court as to the previous orders in the case.

In his witness statement of 3 December 2008 Mr Patel states:

“The Claimant only became aware of the Order of Mr Justice Clarke on 14^th November 2008 last week when it was received at my offices on Wednesday 26^th November 2008. The Order of 14/11/08 refers to a transcript being provided. A copy of the transcript was only received by the Claimant on Monday 1^st December 2008. It was not served by the Defendant… The Claimant did not attend the hearing before Mr Justice Clarke on 14/11/08 as we received no notice of the date from the Defendants… We were aware from the Defendants that they intended to set aside the Civil Restraint Order, but we assumed that their application would be dealt with on paper and that any hearing date would be notified to us by the court. We assumed that the Court would deal with the Defendants application on paper to obviate the need for us to attend on application after application of the Defendants. I thought the purpose of the Civil Restrain Order was to prevent repeated and unnecessary attendance at Court being caused by unfounded applications. We also assumed, perhaps naively, that the Defendants would fully and honestly outline the history of the case to the Judge.”

No one from Alliance Solicitors attended before me, and Mr Rifat was not able to add anything to this explanation for the fact that Mr Bukhari was not represented before David Clarke J or Christopher Clarke J. But the explanation given by Mr Patel is in accordance with what, in my judgment, he was entitled to expect, having regard to the Practice Direction 3C.

The judgment of Christopher Clarke J at para 2 goes on to say that Mr Bukhari and his solicitors have been informed of the hearing. I respectfully disagree. While the information was confusing, in my judgment the most that Mr Bukhari and his solicitors can be treated as having been informed of is the hearing of a permission application. Although he was sent a copy of what is entitled an application notice, in substance it was no more than an application for permission.

It follows in my judgment that Mr Bukhari was not served with a copy of the application notice. On this basis he is entitled to apply for re-instatement of the CRO on his first ground. That is under CPR 23.10, which provides to applications to set aside orders made without notice. If that is right, it is immaterial whether or not Mr Sainsbury misled the court. I must decide the whole issue afresh.

If I am wrong about that, then the jurisdiction for the application to reinstate the CRO requires consideration. The application notice does not identify the jurisdiction, and Mr Rifat made limited submissions to me upon that point. One starting point is CPR 3.11 and the Practice Direction 3C. In principle it appears that a court that has discharged one civil restraint order is not prevented thereby from imposing another.

Another jurisdiction available is CPR 3.1(7), which give the court power to revoke an order. That power is subject to the limitations set out in cases referred to in the notes to the White Book, including Collier v Williams [2006] EWCA Civ 20 para 4, in which the Court of Appeal approved the statement of the law in of Patten J in Lloyds Investment (Scandinavia) Ltd and Christian Ager-Hanssen [2003] EWHC 1740 (Ch). Patten J said this:

“It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction”.

Before a court would exercise its powers under CPR 3.1(7), there has to be some special circumstances, and one recognised special circumstance is where the judge who made the earlier order was misled. A corresponding principle would normally be applied to the re-instatement of a civil restraint order that has been set aside. Justice requires consistency and an element of finality in this context as in others.

The weight to be attached to the judgment of Christopher Clarke J must depend upon the extent to which he was adequately informed of the facts, or misled, as the case may be. There is already in this case the unusual situation that the CRO was imposed by Butterfield J in March, that an application to set it aside failed in April before Owen J, and yet a second application succeeded before Christopher Clarke J in November of the same year.

Accordingly, I shall consider whether the court was misled. In substance, the questions whether the CRO should be discharged, or re-instated, whichever may be the appropriate approach, each depend on the same facts. I shall therefore consider the merits of the applications (to discharge and to re-instate) as one question: should there be a CRO in place now?

Before I turn to that, there is one other matter which needs to be mentioned. On 27 November 2008 POW Trust, Mr Sainsbury and Angelo Silva issued an application notice in the Wandsworth County Court to be heard before a District Judge for an order to stay the possession orders and restore the applicants to the premises at 341 Queenstown Road as envisaged in the judgment of Christopher Clarke J in his judgment of 14 November 2008. A hearing date was set for 4 December. On 3 December Mr Rifat applied to Blake J without notice and Blake J ordered that the Wandsworth County Courty should not hear the application before the hearing of the application to re-instate the CRO.

The file to which Christopher Clarke J appears to have had access includes the documents referred to in paras 46 to 53 above, together with a copy of the Order of Owen J. It is not clear what else was before him. But his judgment refers to the following orders and applications, but not to others

In para 3 of his judgment Christopher Clarke J refers the possession orders of 10 May and 30 August and to an application to set aside those orders “upon the ground that no warrant had ever been issued for possession of the premises”. It is not clear to me to which application to set aside Christopher Clarke J is referring. I do not have the grounds in support of the application dismissed by DJ Habershon on 10 May 2007, nor the grounds in support of the applications which succeeded before Mitting J on 29 June, but were rejected by Ouseley J on 5 July. The Application Notice of 3 July is before me, but does not state that no warrant had ever been issued. The first document before me that refers to the warrants for possession is the order of DJ Gittens dated 26 October referred to by Christopher Clarke J in para 4 of his judgment. He states that he does not have the application notice and that he suspects that it was 3 October 2007. There is an Application Notice of 3 October before me. That Application claims that the Respondents are tenants, who have received a notice to pay the rent directly to Mr Bukhari’s landlord. It does not in terms refer to warrants. But as already noted, the order of 26 October does require Mr Bukhari to produce “evidence as to the issue of a warrant of possession”.

I infer from what is not said by Christopher Clarke J that he had not been informed of the order of DJ Habershon. Mr Patel in his witness statement complains that the Respondents failed to inform Christopher Clarke J of the history of the proceedings between 10 May and 26 October, in particular the application for permission to appeal refused by Openshaw J and the order of Ouseley J which formed the basis of the CRO. These proceedings, of course, also included the applications to Mitting J and to Silber J, and the application of 22 August 2007 refused by DJ Gittens on 19 September (who declared that the Respondents did not have a tenancy, and that issues between Mr Bukhari and his landlord were irrelevant): see paras 14 to 20 above.

In his witness statement of 16 December 2008 Mr Sainsbury explains the omission to inform Christopher Clarke J of the order of Ouseley J dated 6 July 2008. He states that this

“can be discounted because this was an application made without the attendance of the [Respondents] over a misunderstanding of court times. The [Respondents] attended in the afternoon and Mr Justice Ouseley issued a subsequent order without any mention of a ‘without merit’, and the [Respondents] were unaware of the previous order”.

This explanation is difficult to understand. Ouseley J never revoked his order, or his statement that the applications referred to were totally without merit. And it is unclear what is the “previous” order of which the Respondents were said to be unaware. Ouseley J’s second order made in the afternoon of 5 July 2008 states that

“an Application was made without notice by [POW Trust, Mr Sainsbury and Mr McVicar] to set aside the Order of Mr Justice Ouseley made this day in their absence”.

The next event to which Christopher Clarke J refers, in para 5 of his judgment, is the hearing of 1 November 2007 before HHJ Knowles. Christopher Clarke J records that the order as drawn records the precise opposite of what she had said (as is now established). Christopher Clarke J records that HHJ Knowles also “ordered that that the orders for possession should not be enforced pending the hearing of the application of 3 October presently listed for hearing on 18 December”. But he does not mention what happened on 18 December. The next event referred to by Christopher Clarke J is the hearing before DJ Sadd on 22 February 2008.

Mr Patel complains in his witness statement that the Respondents failed to inform Christopher Clarke J that, as he put it, the point raised by the Order of HHJ Knowles was dealt with by HHJ Behar on 18 December, and that there was an appeal on 27 December (the fate of which he did not know). I have made findings as to what happened on 18 and 27 December 2007 at paras 25 to 30 above. There is no good explanation of why Christopher Clarke J was not told of these matters.

The only other event which Christopher Clarke J refers to as occurring before the CRO was made on 6 March 2008 is the hearing before DJ Sadd on 22 February 2008. Christopher Clarke J records that he was told that what DJ Sadd dismissed was an application to set aside the possession orders. It follows that he did not have the Application Notice to which I have referred above. However, he was told that DJ Sadd found that application to be totally without merit, that being the first such declaration he was informed of.

In paras 8 and 9 of his judgment Christopher Clarke J refers to the CRO, and records that

“what happened next was that on 6 March Mr Justice Butterfield made the [CRO]. He made that order in circumstances where, as Mr Sainsbury tells me, Mr Sainsbury sought to make the point that the order of District Judge Sadd of 22 February 2008 had been made under a misapprehension that the judge, Her Honour Judge Knowles, had found that she was satisfied that appropriate evidence as to the issue of the warrant for possession had been furnished to the court. On 22 February 2008 Mr Sainsbury argued, so he informs me, that in fact Her Honour Judge Knowles had not been satisfied; but District Judge Sadd proceeded on the basis that he had to go by what the order said. Mr Sainsbury found himself in a similar difficulty in front of Mr Justice Butterfield. Accordingly the order to which I have referred [the CRO] was made

9.

On 26 March 2008 and application was made for permission to apply to set aside the order that Mr Justice Butterfield had made on 6 March 2008. That order was refused [by Owen J]. Mr Sainsbury informs me that he faced a similar difficulty on that occasion; namely that the order of Her Honour Judge Knowles on its face recorded her satisfaction…”.

Christopher Clarke J concluded in para 13 of his judgment that the Order made on 22 February 2008 by DDJ Sadd “proceeded on a misapprehension”. He then went on to say that it was not apparent to him that more than one application had been made totally without merit prior to the grant of the CRO “and Mr Sainsbury has told me that the only application dismissed as totally without merit prior to that date was that of 22 February 2008”.

Mr Patel complains, in his witness statement at para 4(i), that Mr Sainsbury misrepresented to Christopher Clarke J the purpose of the hearing before DJ Sadd. He states that she was dealing with a further application, dated 18 January 2008, which was a back door attempt to appeal the order of HHJ Behar of 18 December 2007, and that Mr Sainsbury had failed to inform Christopher Clarke J of this. Mr Patel states that at the hearing before Butterfield J representatives of the Bailiff’s Office were again in attendance and Butterfield J was satisfied that the warrants had been properly issued. Accordingly, he states that Christopher Clarke J was himself under a misapprehension, when he found that the orders of DDJ Sadd and Butterfield J were made under a misapprehension.

In his statement before me Mr Sainsbury makes no further comment upon these points, other than the ones I have already noted above. In his witness statement dated 16 December 2008 he does not repeat what Christopher Clarke J recorded him as saying on 14 November 2008 (see para 8 of his judgment), namely that DDJ Sadd “proceeded on the basis that he had to go by what the order [of HHJ Knowles] said”. He does not contradict or explain Mr Patel’s para 4(i), although the did, in his para 9, put forward an explanation (which I have rejected) of Mr Patel’s para (f) relating to the order of Ouseley J. I have been shown no transcript of the hearing before DDJ Sadd. In the circumstances I accept what Mr Patel states about that hearing and the reason for DDJ Sadd’s declaration that the application was wholly without merit. I therefore proceed on a different factual understanding of the hearing before DDJ Sadd to that which Christopher Clarke J set out in para 8 of his judgment. I do not accept that DDJ Sadd proceeded on the basis that she had to go by what the order of HHJ Knowles said. Accordingly, I see no merit in Mr Sainsbury’s first ground for the application to set aside the CRO: see para 47 above.

It is plain that Christopher Clarke J was misled by Mr Sainsbury. It was untrue that “that the only application dismissed as totally without merit prior to that date was that of 22 February 2008”. Mr Sainsbury concealed from Christopher Clarke J that Ouseley J had dismissed three applications as totally without merit on 5 July 2007. Accordingly, Christopher Clarke J did not consider whether Ouseley J was under any misapprehension. It was Ouseley J’s order that was the basis of the CRO, and so an application to set aside the CRO ought to have addressed that order. On the basis of what Mr Sainsbury told, and omitted to tell, to him, Christopher Clarke J only considered whether DDJ Sadd and Butterfield J were under a misapprehension.

Christopher Clarke J at para 15 of his judgement gave two reasons for setting aside the CRO. The first was the misapprehension under which, as he found, DDJ Sadd had dismissed the application on 22 February 2008 (where I have reached a different conclusion). But the second ground was that:

“… on the material before me, it does not appear that at the time in question (that is to say 6 March) there had been two dismissals of applications as made totally without merit”.

The second ground shows that Christopher Clarke J had been misled by Mr Sainsbury into believing that the only such dismissal was that of DDJ Sadd, whereas in fact Butterfield J had relied upon the dismissal by Ouseley J of three application. One of these was in relation to POW Trust and Mr Sainsbury. It was not correct to state that Butterfield had acted without the two applications which are required by the Practice Direction 3C to give the court jurisdiction to make a civil restraint order.

I now turn to consider the matter afresh.

Mr Rifat first submits that the application to discharge made to and dismissed by Owen J determines the issue which was subsequently raised before Christopher Clarke J. There is considerable force in this submission, for the reasons given in para 63 above. However, since an error undoubtedly did occur in the drawing up of the order of HHJ Knowles, and since that error was not identified before Butterfield J, or Owen J, I prefer to decide the matter on other grounds.

Mr Rifat next submits that HHJ Knowles did no more than order that the possession orders be not enforced pending the hearing that in fact took place before HHJ Behar on 18 December, and that the Respondents’ applications were dismissed at that hearing. He refers to the findings upon which he made submission to me, and that I have made, in relation to that hearing: see paras 27 to 29 and 79 above. On those findings, there is nothing to support the submission that Mr Sainsbury made to Christopher Clarke J, and which he accepted, that the erroneous drawing up of the order of HHJ Knowles led any judge on a subsequent occasion to act under a misapprehension.

Moreover, whatever may be said about the order of HHJ Knowles on 1 November 2007, it cannot have affected the decisions of Ouseley J on 5 July 2007. Mr Harash mentions in his witness statement of 3 March 2008 the order of DDJ Sadd. Mr Rifat submits that the order of HHJ Knowles was not relevant to the order of DDJ Sadd. He submits that the reason why DDJ Sadd took the view that that application before her was totally without merit was that it was wrong to seek in that way to re-open the issue which had already been determined by HHJ Behar. In any event, he submits that the issue of whether there were warrants or not was not before DDJ Sadd. So there cannot have been any relevant misapprehension.

Mr Sainsbury submitted that the order of Ouseley J was tainted by the error in the order of HHJ Knowles. I cannot understand that submission in the light of the fact that Ouseley J’s order was the earlier in date. Mr Sainsbury continued to assert before me that the Respondents were tenants of the premises, while advancing no documents or arguments in support of that submission. He submitted that the order of HHJ Behar was made because he had the order of HHJ Knowles that she had been satisfied, when in fact she had not. But he has not put before me any transcripts or other material to show that HHJ Behar was influenced by the erroneously drawn order, and I have made findings adverse to Mr Sainsbury on this submission in paras 28 and 29 above.

Next Mr Sainsbury relied on the fact that HHJ Behar did not say that the application to himself was totally without merit. But that cannot affect the fact that Ouseley J had said that other applications were totally without merit. Mr Sainsbury has not put before me any material to show that Ouseley J was acting on any misapprehension. It seems to me that the highest that Mr Sainsbury’s submission could be put would be that if he had appeared on the morning of 5 July, then Ouseley J might have made the order that he in fact made in the afternoon, and not made the order that he made in the morning, and that ultimately the Respondents would have lost (as they did), but without any judge making an order that there were two applications made wholly without merit. That may or may not be so, but that is not what happened.

I accept the submissions of Mr Rifat. I conclude that it has not been demonstrated that Ouseley J or DDJ Sadd were under relevant misapprehension.

On the other hand, the Skeleton argument of 4 March 2008 submitted to Butterfield J does contain the erroneous statement noted in para 35 above, namely that “The Order of HHJ Knowles records the fact that she was shown the Writs to her satisfaction”. To that extent there is a basis for the fourth ground relied on by Mr Sainsbury (para 47 above) in support of his application to set aside the CRO.

The question then arises whether that fourth ground can succeed alone. In my judgment it cannot. I do not know what the reasons were for the decision of Butterfield J. I have been shown no transcript. For that reason alone I would hesitate long before deciding that I should discharge that order see para 64 above. But if the facts as understood by Butterfield J were the facts as I take them to be in this judgment, the fact that Butterfield J was misled does not mean that there should have been a different outcome (that is, no CRO) if he had not been misled. Mr Sainsbury has not established that any judge in the Wandsworth County Court was misled by the error in the drawing up of the order of HHJ Knowles, or that it affected the outcome of any subsequent hearing in that court. So while the fact that Butterfield J was misinformed may perhaps explain Mr Sainsbury’s sense of grievance in relation to the CRO, it does not follow that there is any merit in any other point or application made by him.

It follows that there is no basis for discharging the CRO, and it shall be re-instated.

In my judgment the application by Mr Sainsbury (for POW Trust) to David Clarke J and Christopher Clarke J was totally without merit.

The history set out above is lamentable. It demonstrates that neither para 4 of the Order of Ouseley J made on 5 July 2007 nor the CRO have afforded to Mr Bukhari the protection which they were designed to give.

It may be that one reason for that has been that there is nowhere a record of why these orders were made. One possible solution might be for judges making such orders to adopt the course taken Christopher Clarke J when he discharged the CRO. He made an order that a transcript of his judgment be provided to the applicants at public expense and that the provision of such a transcript be expedited.

It may be that consideration should be given as to whether there should be a provision to this effect, or some other provision, in Practice Direction 3C to ensure that, when such orders are made, the courts in which applications are subsequently made can identify the applicant as subject to such an order, in cases where he does not identify himself, or where he gives incorrect information as to why he was made subject to such an order. It is also for consideration whether the Practice Direction 3C should specify what procedure is to be adopted if and when and application for permission to apply to set aside a civil restraint order is granted.

I note that the hearing before me was listed for an hour, and that the preparation of this judgment has taken many times that time. This case reminds me of another case in which I (and others judges) have had to devote a disproportionate amount of time in relation to a litigant who repeatedly sought to set aside possession orders: Ferraro v Halifax Plc & Albert Dock Management Ltd (2007) [2007] EWHC 2323 (QB) and Ferraro (R on the application of) v Albert Dock Management Limited (2006) [2006] EWCA Civ 1489 are just two of the reports of that litigations to found on Casetrack. When that case was put before me I had the difficulties referred to in this case by both Christopher Clarke J and myself, namely that it was extremely difficult to ascertain what had happened in the litigation.

It appears that another source of trouble may have been that the applications for permission to apply to discharge the CRO were listed for a hearing (and notified by the court to Mr Bukhari), instead of being determined without a hearing as provided for by Practice Direction 3C para 2.6(3). I have seen nothing on the court file that might explain why the application to Christopher Clarke J was listed for a hearing and notified to Mr Bukhari. Mr Sainsbury has thus been afforded the opportunity to waste a very considerable amount of the court’s time, in addition to causing time and costs to be spent by Mr Bukhari, which Mr Bukhari should not have had to spend.