Watson v Evershed LLP

In this case Ms. Elizabeth Watson has appeared before me to seek an interim injunction against “Eversheds LLP and their agents (inc Paul Mitchell, Hailsham Chambers)”. In the course of a lengthy hearing I heard from her, from Mr. Christopher Coomber and Ms. Sheila Oraki, whom I permitted to speak on her behalf. They told me that they believe she has a real complaint of injustice and that they fear for her health if she is not given more time to advance it. I did not hear from the claimant’s husband for whom, I was told, she acts under an “assignment”. I would not, quite apart from any other consideration, grant any order in his favour on this basis. Interim orders require undertakings and I am not convinced that I could properly accept one from Ms. Watson given on his behalf. If, in due course, she issues proceedings, or he wishes to do so, they may wish to consider this aspect further. I have reserved judgment and issued it in written final form by email with a copy to the County Court at Winchester and to Eversheds for reasons which will become obvious. It is important that my conclusions and reasoning are clearly recorded and rapidly available without the need for a transcript to be commissioned. It will be formally handed down for the purposes of open justice on Friday the 17^th July 2015 at 09:30am. There will be no time for any hearing on that occasion and no attendance is required by any party.

No claim form has been issued against the proposed defendants, and no-one has been served with any notice of this hearing, nor has Ms. Watson produced a draft Order. There is no written application for an order which Ms. Watson asks me to make. Given the way in which the proposed defendants are described (see above) this presents some difficulty in ascertaining who, exactly, would be subject to any injunctive order. From paragraph 43 of her witness statement dated 14^th July 2015 it appears that she seeks:-

She seeks an order that these interim injunctions should continue “until such time that the outcome of the fresh claim to impeach the judgment handed down is known and until such time that there has been a full enquiry and investigation conducted in to the many very serious issues surrounding this long-standing and protracted matter which has had a deleterious effect on our lives since its inception nearly 7 years ago”. Obviously, that is far too long a time period and its termination is insufficiently certain for it to be possible to grant an injunction in such terms. Ms. Watson wishes there to be a criminal investigation into her complaints. I have no power to order such a course of action, nor do I have any reason to believe that any investigating body intends to take any such action.

Ms. Watson claims that Eversheds have manipulated the court process and conspired with a large number of other people, including some judges, to procure the possession order by fraud. She says that they have purported to do this on behalf of the Bank although she contends that they have no instructions from the Bank and should not be acting. She says that they are “interlopers” who have conspired with judges and others to steal her home from her. Ms. Watson will have to decide whether to issue a claim form setting out this, on the face of it, somewhat unlikely claim.

The proposed claimants issued an application on 26^th June 2015 for an injunction restraining Eversheds from continuing to advance the claim for possession on behalf of the Bank “on the ground that it has been confirmed by the Bank that no instructions have ever been given to issue such proceedings and that they must immediately withdraw their claim issued in the Bournemouth County Court under the name “Bank of Scotland plc” pending the claimants’ claim against them for fraud upon the court.” That application was not heard because although it was listed for hearing on 2^nd July 2015 (after the possession order had been made) the claimant applied for an adjournment on the ground of ill-health and this was granted on the morning of 2^nd July 2015. On the previous day, 1^st July 2015, the Listing Officer of the Queens Bench Division emailed Ms. Watson pointing out that a possession order had been made that morning and that the Judge before whom the application was listed had said “if you wish to challenge this, the correct course is to appeal that order”. On 10^th July 2015 she emailed HH Judge Hughes QC at the Winchester County Court expressing her dissatisfaction with proceedings and setting out her case. On the same day she copied that email to the QBD listing officer saying

“Obviously I need to get an Appeal lodged with a stay on the possession order pending a criminal investigation and a private criminal prosecution, and so I would request directions as to whether I should obtain this from the High Court Chancery or QB Division or from the Winchester County Court?.

“Last year in 2014 I was also invited by the Registrar at the Supreme Court, Louise di Mambro, to re-open the Judgment of January 2013 at the High Court of Appeal, on the basis that it was obtained through fraud on the Court on an invalidly brought possession claim which was never sealed by the Court and therefore could not proceed. There are multiple other aspects of fraud on the court, too numerous to go into detail here. On this basis I will also be submitting an Appeal against the Order of Jan 2013 “out of time” because I hold compelling evidence to justify this appeal.

“I will also be taking up the ex parte Injunction hearing and would be grateful if the court would confirm that I may attend this coming Monday next week at 2pm? If not, Tuesday at 2pm? Please let me know.”

Despite this, she has confirmed to me today that she has not issued a Notice of Appeal. In the course of submissions, particularly when I was addressed by Ms. Oraki and Mr. Coomber, it became clear that what they really wanted was an extension of time for the enforcement of the possession order to enable her to formulate her claims properly. An interim application without notice in a proposed action for fraud against the solicitor of the judgment creditor is not a suitable vehicle for such an application. I pointed this out during the hearing on several occasions and this clearly caused some frustration which resulted in Ms. Watson accusing me of being corrupt. I terminated the hearing and left court because I feared that she would continue in such behaviour and this might ultimately lead to a situation where the level of contempt became difficult to overlook. It seemed unkind to risk provoking such a situation and I was certain that I had heard everything which might assist me, and more besides. I mention this because Ms. Watson has a habit of describing the behaviour of Judges at hearings in her cases and citing it as proof of their involvement in a conspiracy to harm her. She refers, for example, to His Honour Judge Meston QC at a hearing in September 2014 as “trembling”, looking frightened, as if he had been threatened.

Her tendency to allege that anyone who does not immediately agree with her is corrupt and “in on the conspiracy” to steal her home may possibly alienate some tribunals and may result in court staff refusing to deal with her. She certainly alleges that she has had communication problems with courts in the past. I felt that her sense of grievance was genuine, by which I mean that she genuinely feels that she has been wronged. I do not mean to say that I have decided she is right. I am not able to determine the merits of the original dispute about the debt on which this possession order is based. There has been a very long procedural history in this case and I accept that her health has been affected from time to time. A great deal of what she says is patent nonsense and it is very difficult for a Judge in circumstances of this kind to identify any merit there may be in anything she says. It does not follow that because a lot of what she says is nonsense that it all is. She is a litigant who is very vulnerable because she is quite unable to refrain from making grandiose and groundless allegations of dishonesty against everyone who does not immediately side with her. This is a very good way of hiding any meritorious point she may have. I think that the decision of Knowles J which I refer to below is based on a similar feeling.

Where it is alleged that a judgment was obtained by fraud Noble v. Owens [2010] EWCA Civ 224 suggests that the proper course is to issue an action in which that fraud can be proved, rather than to appeal. No doubt there is power in the context of such an action to make an order that enforcement of the order concerned should be stayed. The position may not be clear in a case such as this where procedural failings are relied upon which are more properly the subject of an appeal. The very wide nature of Ms. Watson’s claims means that some may be more suited to determination in an action for fraud, and others in an appeal. Of course, where an appeal is lodged, there is machinery to stay the effect of the order pending determination of the appeal. In this case, the complaints made before me on this application are against Eversheds and others and these appear to be such as can only be advanced by a fresh claim. Whether Ms. Watson also (or instead) seeks to issue an appeal to which the Bank would be a party in order to litigate those complaints of hers which may be capable of being addressed within an appeal is a matter for her.

My recent experience in the applications list in the Queens Bench Division suggests that professional litigators as well as self-representing parties have developed a practice of issuing applications ex parte and before issue of a claim form as if this were the normal way of proceeding. It is not. The default position is that interim remedies are granted within existing proceedings. The default position is that they are granted after notice has been given to the person against whom they are sought and after service of the claim form on that person. Those default positions can (and very often are) be varied where good cause is shown, but each variation needs to be justified and considered separately. Where, as here, the claimant comes without having issued proceedings, without serving proceedings, and without giving notice to the other party or parties there is a series of issues to be addressed before any order at all can be made:-

I have set out a little of the procedural history above. It appears that the claimant considered setting aside an order for fraud in 2014, because in an email to the court she refers to her discussions with the Registrar at the Supreme Court, Louise di Mambro to that effect. On 31^st March 2015 she assisted her sister in proceedings brought against her in similar proceedings by the Bank. Knowles J granted her sister permission to appeal in a judgment given on that date with a neutral citation reference [2015] EWHC 921 (QB). Very similar issues appear to be involved in those proceedings to those which she wishes to raise now. She later (on 26^th June 2015) issued an application for an injunction before issue of proceedings on the basis that Eversheds were acting without instructions and referred in her application to her “pending claim against them for fraud upon the court.”

There is still no claim form. There is no proper basis on which to entertain this application without a claim form and I decline to do so. There is no urgency demonstrated in circumstances where the claim was said to be “pending” nearly three weeks ago when the first application for an injunction against Eversheds was made.

Further and in any event this state of affairs is accurately described by Ms. Watson as a “long-standing and protracted matter” in which she has known of her suggested grounds of complaint against Eversheds for a considerable period of time. She has also made those grounds plain to them already. There is therefore no element of secrecy or urgency which would justify the court considering this application in the absence of the person against whom it was made. I decline to do so.

Finally, Ms. Watson has not dealt with the cross-undertaking in damages. I have no evidence on the basis of which I could be satisfied that she would be able to pay any sums which may be held to be due from her as a result of the making of this order.

I have not adjudicated on the merits of this application applying American Cyanamid v. Ethicon [1975] AC 396. If Ms. Watson issues proceedings and seeks an order this issue will have to be addressed. The court will have the benefit of evidence and argument from both sides in deciding whether there is a serious issue to be tried. The application before me is an application which seeks an order against Eversheds preventing the enforcement of a judgment which stands in favour of the Bank. If Eversheds were restrained from enforcing the judgment, the Bank would be free to do so providing it did not procure a breach of the injunction by Eversheds. On the face of it, it therefore appears to be misconceived.

I suspect that where she refers to an “invitation” from the Registrar to re-open a judgment (see above), Ms. Watson has misunderstood a ruling that a particular procedure exists as meaning that it might be wise to use it. Of course it means no such thing. If Ms. Watson pursues a claim properly it will be judged on its merits. If it fails the usual costs consequences are likely to follow and the court will consider whether it was totally without merit.

The application to me is totally without merit because it could not possibly result in any order being made for the reasons which I have given.

I now turn to the revised application which was made orally which was, as I have said, really for an extension of time in which to appeal. I have sympathy with this in principle. Ms. Watson strikes me as a person who is struggling with this litigation, despite her obvious commitment to her cause. I have seen some medical evidence about her daughter who was admitted to hospital on the evening of the first day of the two day trial which resulted in the order of the 1^st July 2015. The order requires her to give vacant possession on 29^th July 2015, a day after her time for appealing expires. It appears to me that she has a right to issue a notice of appeal against that order and to have the issue of permission determined by the County Court. I have referred above to the difficulties involved in dealing with Ms. Watson who is very free with her allegations of corruption. I trust that if she presents a notice of appeal and an application for an extension of time pending its determination in a form which can properly be issued within the time limit it will be issued and referred for consideration by the Circuit Judge. She told me that she had been refused permission to appeal because it would be a second appeal. I do not know what she was referring to, and any observations I make are expressed on the limited basis of what I know.

I am not going to grant an extension of time for the issue of a notice of appeal because Ms. Watson made clear to me in oral argument what grounds she wishes to raise, and is no doubt equally capable of doing so in writing. She still has two weeks before the possession order takes effect in order to issue a notice of appeal and to seek an extension of time for enforcement pending determination of the appeal. She has known of the order since 1^st July 2015 or, as she says, the 4^th July. Her email of 10^th July set out at paragraph 5 above shows that she has known of the need to appeal since at least then and if she had attended to that rather than wasting her time seeking a without notice injunction against a firm of solicitors she could have done it by now.

Not everything which she wishes to say about the judgment of the 1^st July 2015 is capable of being adjudicated on in an appeal, as opposed to an action for fraud, but some of it is. In essence, it appeared to me that her complaints about the judgment of 1^st July 2015 which might form the basis of an appeal are

By identifying these complaints I do not mean to suggest that there is force in them or what the result may be of any appeal proceedings. I have merely attempted to distil my understanding of her case as advanced before me, stripping out the more extreme allegations of conspiracy which would have to be pursued, it seems to me, by an action rather than an appeal.

I have indicated to Ms. Watson that I cannot presently see any basis on which any court is ever going to make any order in this case unless notice of an application has been given to the other side. It was while I was explaining that the obligation to hear both sides is fundamental to justice that she first accused me of being corrupt. I refer to the need to give notice in this written judgment so that there can be no doubt that she understands that in this respect the law which applies to every other litigant equally applies to her. If she applies again without giving proper notice she must show good reason for doing so. If she fails to do that she will not be heard and the application will probably be certified as being totally without merit.