Senna v Henderson & Ors

There are before me a number of applications made by the Claimant in two sets of litigation brought by him.

I held a remote hearing on 29 October 2020 which the Claimant chose not to take part in. The events beforehand were as follows.

That hearing took place pursuant to orders made by Warby J on 31 July 2020 and 20 October 2020. Other matters are listed for hearing on 10 and 11 December 2020. He dismissed other applications by the Claimant.

On 26 October 2020, in the exercise of my case management powers, I made an order directing that the hearing should be a remote one by Microsoft Teams, in accordance with current Queen’s Bench practice because of the COVID pandemic. The course of action was supported by the First, Second, Third, Fourth and Fifth Defendants. I shall refer to these Defendants from hereon as ‘the Represented Defendants’.

The Claimant strongly objected to a remote hearing. He wanted a hearing in a COVID safe court. He claimed that a remote hearing would cause him mental health problems. He said that he would only take part in a hearing in court.

There was no evidence about the Claimant’s mental health in the 2659-page bundle filed for the hearing, save for a letter later obtained from the Claimant’s GP. The Claimant says he is a wheelchair user. That being the case, I would have thought he would have preferred a remote hearing rather than having to come into central London to attend the Royal Courts of Justice, but he did not. In all events, whilst I fully understood the Claimant’s preference for a hearing in open court, I made the order that I did.

In making my order I bore in mind that there had been at least one earlier remote hearing which the Claimant had attended, namely a Skype hearing before Andrews J (as she then was) on 1 May 2020. In objecting to a remote hearing before me, the Claimant said that he did not have access to a computer (despite being able to send very many emails over a number of days, including emails that have been sent whilst I was writing this judgment). But, to cater for that, I gave leave in my order for the Claimant to dial in by telephone. Microsoft Teams offers that facility. I said that I had held at least one telephone hearing in another case and that in my view it was an effective way for a litigant to take part in a hearing.

This litigation has been case managed by Warby J (as he then was) and Master Dagnall. The Claimant had taken to emailing court staff and Master Dagnall directly (with the emails addressed to Warby J, Master Dagnall and, latterly, myself) on various matters, including the issuing of applications. Thus, for example, on the afternoon of 28 October 2020 he sent the following email to Court staff and directly to Master Dagnall the relevant part of which read (sic):

“Hello Mr Justice Warby, Mr Justice Knowles and Master Dagnall

I am sending directly to you my reply to the email from [a member of Court staff] in relation to issuing the Part 8 Claims against D3 and D4

I sent you an earlier email with all attachments to issue the Part 8

Claims

I am sending you the Very Urgent Application for CPR25

Injunction …

Please issue this urgently and send me a sealed copy

I have already served the drafts on 26 Oct 2020

Its a no brainer that this has a direct impact on the hearing on 29

Oct 2020 (before Mr Justice Knowles I think) …”

On the afternoon of 28 October 2020 I asked my clerk to send an email to the Claimant requesting that he desist from emailing members of the judiciary directly; pointing out that there were established procedures for issuing applications and putting evidence and submissions before the Court; and requesting that he use those procedures. A courteously worded email to that effect was sent to the Claimant.

That prompted a number of emails in response from the Claimant on the afternoon and evening of 28 October. In those emails he made a number of unjustified assertions and allegations including that I should recuse myself from the case; that I was ‘picking on’ him and trying to ‘bully’ and ‘intimidate’ him; and that I had ‘predecided’ the case. A reply was sent to the Claimant indicating (obviously) that I had taken no decision on the case and encouraging him to attend the hearing the following day.

That reply prompted an email response at 20:21 from the Claimant enclosing a Skeleton Argument but reiterating that he would not attend the hearing. The email said (inter alia) that:

“My head is burnt out by what you and the other Judges are doing in managing this case. My head will fall off with all the stress and I will start to shout at everyone.”

As I will set out later, the Claimant often applies for judges to recuse themselves when they have taken decisions (or he perceives that they may take decisions) to which he objects. In the present litigation, such applications have been made or threatened against three judges, as well as myself. The Claimant has also made recusal applications against at least two other High Court judges in other litigation.

On at least one earlier occasion the Claimant has had to be warned to moderate his language, for example, after he accused a member of the judiciary of being ‘green behind the ears’ and of demonstrating ‘contempt’ towards him.

Unfortunately, this warning seems to have had little effect. On 30 November 2020 the Claimant sent an email to Warby J and myself accusing us of being in contempt of court and demanding that we, ‘Stop taking the piss.’

More concerningly, the Claimant’s Skeleton Argument for this hearing at [20] threatened that he would ‘take the law into his own hands’ and administer ‘old school justice’ to a named solicitor with Brodies LLP, ‘who will have no trouble understanding.’ I understood this to be a threat of violence, and so I thought it appropriate to draw the solicitor’s attention to it at the hearing on 29 October 2020.

This is not the only time the Claimant has threatened violence against other parties’ legal representatives. On 27 October 2020, shortly after Mr Cochran indicated that he had been instructed by Advocate on behalf of the Third Defendant to appear on 10/11 December 2020 and wished if possible to appear on 29 October 2020, the Claimant sent an email to the parties, part of which read (as set out in Mr Cochran’s Skeleton Argument at [25]):

“… Mr Douglas (sic) has failed to make a request to me personally as the Claimant to make representations. He will not barge into the proceedings by force. I will pay him a visit at his Manchester office if he wants to try to bully me. Lets see how it works out in person … Mr Douglas must be held personally responsible for Costs when I win He is meddling and this must have consequences.”

The Claimant was given plenty of notice about the hearing on 29 October 2020. On the morning of the hearing he was sent the Microsoft Teams link. No reply was received. My clerk then made a number of calls to him on the mobile telephone number which appears on his emails; on each occasion the phone rang out with no reply. At 10:30, the scheduled start time for the hearing, with the agreement of the other parties, I rose for 15 minutes to allow for further attempts by my clerk to contact the Claimant; these also proved unsuccessful.

At 10:45 I sat again. I indicated that I was satisfied that the Claimant had been given notice of the hearing. I was satisfied he had deliberately chosen not to attend, as he had indicated he would not. I also said that there were no grounds to recuse myself, and I declined to do so.

I ascertained that the bundles (both the full bundle and the shorter Core Bundle which

I then heard submissions from Mr Pillai QC for the Represented Defendants, and from Mr Cochran for the Third Defendant. Mr Cochran appeared pro bono and I am grateful to him for doing so. The hearing occupied most of the morning and concluded before the lunch adjournment. I reserved my decision.

At 13:47 on 29 October 2020 (ie, after the hearing had concluded) the Claimant emailed to my clerk a letter from his GP dated 28 October containing some medical information (which I do not need to set out) and indicating that the Claimant had told them that he found virtual hearings ‘challenging’ and that if possible he would ‘prefer’ to do them in person. The letter concluded that the doctor was ‘… aware that there may be restrictions to this due to COVID19 but would be grateful if you can take this into consideration.’

For the avoidance of doubt, even if I had seen this letter before the hearing, it would not have altered my decision to hold a remote hearing.

Given the issues arising in the matters before me, I think it is important to set out some of the Claimant’s history as a litigant.

In 1998 the Claimant was convicted under the name of Gurkirat Singh Dhanota for importing Class A drugs and sentenced to a term of 15 years imprisonment. He entered into considerable litigation whilst in prison. In Dhanota v Birdi, Unreported, 23 June 2002, [30], Gibbs J said that he was

“… driven to conclude that the applicant’s conduct in these matters has the hallmarks of that of a vexatious litigant. The pattern of these applications indicates an attempt to use the court’s process not for proper and legitimate reasons, but rather for the purpose of abuse of the process in order to pursue numerous and repetitive allegations and arguments most, if not all, of which are wholly lacking in any arguable merit.”

In 2003 Richards J dismissed no fewer than eight applications for judicial review by the Claimant: R (Dhanota) v Secretary of State for the Home Department [2003] EWHC 630 (Admin). At [1] the judge noted the observation of Newman J in earlier litigation that the Claimant was an ‘enthusiastic litigant’. At [52] he said:

“I should mention finally that, although in the context of some of the claims I have touched on allegations of impropriety, I have not dealt specifically with quite a large number of allegations of deliberate evasion, dishonesty and misconduct, allegations that are sometimes expressed in abusive terms. Suffice it to say that I have seen nothing to justify such allegations though I have taken the allegations into account in reaching the conclusions that I have indicated in respect of the each of the applications.”

Later the same year, the Claimant sought to set aside those orders, and for Richards J to recuse himself on the ground of bias. That application was dismissed: [2003] EWHC 1755 (Admin), [5]-[10].

By December 2011 the Claimant had been released on licence and then recalled to prison three times. On 19 December 2011, Nicol J imposed an extended civil restraint order following yet more failed judicial review applications: R (Dhanota) v Parole Board [2011] EWHC 3731. The judge said at [35]:

“It seems to me that three sets of proceedings have been lodged for permission to apply for judicial review. I have found that all three of them are hopeless. There is a considerable degree of repetition in the grounds in each of the proceedings. That provides some force for the submission on behalf of the defendants that the claimant in any future application for judicial review may yet again seek to rely upon the same aspects. An extended civil restraint order would prohibit him from doing that. In those circumstances it seems to me that the extended restraint order is appropriate. I ask counsel for the defendants to draft it in terms they consider appropriate.”

On 20 July 2017, following a series of applications and claims which were held to be totally without merit, Newey J (as he then was) declined the Claimant’s request for recusal and imposed a second extended civil restraint order: [2017] EWHC 1859 (Ch). In relation to recusal, the judge said at [17]-[19]:

“17.

The witness statement that Mr Senna made in support of his proposed application for, among other things, my recusal included this: “Mr Justice Newey has made intemperate remarks and has been given information which has caused his Lordship to prejudge the case. I no longer trust Mr Justice Newey or have faith in his Lordship to provide a fair hearing.”

18.

During his oral submissions on 22 May, Mr Senna expanded on the reasons he was asking me to recuse myself. Among other things, he referred to the fact that I had said in March that I considered certain claims to be totally without merit; observed that he did not see how I could give him a fair hearing once I had read the application for civil restraint orders to be made; and said that, at the March hearing, I had shut him down when he was trying to take me through a number of points.

19.

I have not been persuaded that I should recuse myself for these (or any other) reasons. I do not believe myself to have made “intemperate” remarks: the mere fact that I concluded that the claims that I struck out in March were totally without merit cannot possibly warrant the adjective. Again, neither my reading of the application for civil restraint orders, nor anything else, involved my prejudging the matters that I had to decide. As for trying to shut Mr Senna down at the March hearing, I tried to focus Mr Senna’s submissions on the relevant points, but, when it became apparent that he would take longer than the time available that day, I adjourned (in the event, to 22 May).”

In relation to the extended civil restraint order (ECRO), at [40]-[41] the judge said:

“40.

Paragraph 3.1 of Practice Direction 3C empowers the Court to make an ECRO where “a party has persistently issued claims or made applications which are totally without merit”. This condition appears to me to be satisfied as regards both Mr Birdi and Mr Senna. As mentioned above, applications made to Mr

Registrar Briggs (by Mr Birdi) and to Mr Justice Morgan (by Mr Birdi and Mr Senna jointly) were characterised as totally without merit last year. Further, I took the view in March of this year that all of the claims made in HC-2016-003606 and those advanced in the present proceedings against Mr Awde and Ms Hallamore were totally without merit. In this judgment, moreover, I have recorded that I consider Mr Senna’s claims against Mr Price and Mr Pettit to have been totally without merit. In addition, the applications that Mr Birdi and Mr Senna made in HC-2016-003606 for striking out and/or summary judgment and permission to bring committal proceedings must, I think, be regarded as totally without merit.

41.

It is also relevant to have in mind the draft application notice that Mr Senna produced on 22 May. Among other things, this proposed that, despite my striking out of claims against Mr Mody,

Mr McAndrew and Ms Hallamore in March, “Spearing Waite LLP (Ashwin Mody)”, “Ashteds Ltd (Ashwin Mody)”, “Eddisons Commercial Ltd (P Approved Judgment Birdi v Price Davies & K McAndrew)” and “Official Receiver (J Hallamore)” should be added as defendants to these proceedings. Mr Senna seems to be someone who, as regards matters relating to Mr Birdi’s bankruptcy, refuses “to take ‘no’ for an answer” (to adopt words used by the Court of Appeal in Bhamjee v Forsdick [2002] EWCA Civ 1113, [2004] 1 WLR 88, at paragraph 42). In all the circumstances, I consider it appropriate to make an ECRO against Mr Senna for a two-year period.” The background to the present litigation

I turn to the matters before me.

At various times during the period from November 2019 – March 2020, the Third Defendant (a Polish/Argentine national) lived with the Claimant in London. It seems to be common ground that the relationship was intimate for at least some of that time. In one his of witness statements he describes her as having been his girlfriend.

The Claimant contends that in the course of their relationship he and the Third Defendant entered into a series of contracts on a number of business ventures, as well as a separate contract by which she agreed to provide personal caring services to the Claimant.

The Third Defendant disputes the existence of these agreements.

In April 2020 the Claimant brought a claim against Connor Henderson, the First Defendant, a Scottish businessman, CCHG Ltd (trading as VPZ), the Second Defendant, a company concerned with e-cigarettes of which Mr Henderson is a director and shareholder, and the Third Defendant. This is claim QB-2020-001516 (the First Claim).

On the Claim Form, under ‘Brief Details of Claim’ the Claimant listed the following causes of action (sic): tortious interference of contract and business relationship and inducement and procurement of breach of contract; fraud; conversion; economic loss and damage; false allegations (damage to reputation); threats and intimidation; racial abuse; harassment causing alarm distress pain suffering and loss of amenity; damages; costs; interest.

There are Particulars of Claim, drafted by the Claimant himself, dated 1 May 2020. The allegations against the Defendants are wide ranging, but the pleaded causes of action appear to be (a) breach of contract (against the Third Defendant only), (b) procuring a breach of contract and tortious interference (against and the First and Second Defendants); (c) fraud (against all three Defendants; and (d)) harassment, again against all three Defendants.

In brief, the dispute relates to the agreements which the Claimant said he made with the Third Defendant to which I have referred. Some of these are said to relate to the music/nightclub business in Ibiza, which he claims she breached. He also alleges she breached an agreement about selling items on Ebay and also breached an agreement between them in relation to modelling work by her. He also alleges breaches of other agreements. He claims to have made various payments to her and met other costs on her behalf. Paragraph 3 of the Particulars of Claim alleges that the First and Second Defendants induced the Third Defendant to breach these agreements.

A flavour of the Claimant’s case, and his attitude towards the Defendants is, I think, demonstrated by some emails which he sent. On 22 April 2020 he wrote to the First Defendant (sic):

“This has spiralled out of control because you called me a liar and a paki c***.

You stole my girl out of my house and out of my business. You have groomed her with your drugs and alocohol [sic] and kept her in hiding from me.

You have been given every reasonable opportunity to bring her to my door and make amends. And apologise.

This option remains open to you.

You cant run forever. You cant hide forever.

TRUST ME in the High Court you will feel like ‘I just ripped off your head and pissed down your neck.’ I will get my justice.

I have the truth on my side.

Just wait until you see the Exibit Bundle and the witness statements from notable people.”

The Claimant has also made threats against the Third Defendant. In an email exchange on 14 May 2020, copied to the Court, the Claimant objected to Brodies LLP filing an Acknowledgment of Service on behalf of the First and Second Defendants, and contended that the Third Defendant had been told to keep silent. In an email she denied this, and alleged that the Claimant was a ‘stalker’ and a ‘predator’. She stated that she was afraid of him and did not want to have anything further to do with him.

Earlier, on 11 May 2020, the Claimant threatened the First Defendant when he emailed him (and Andrews J) saying that he would:

“… come up there a[sic] rip your face off"

All of the Defendants deny all of the Claimant’s claims. It is right to note, specifically, that the First Defendant categorically denies racially abusing the Claimant or behaving unlawfully in any way. He also firmly denies supplying the Third Defendant with drugs.

In his first witness statement the First Defendant explains that he met the Third Defendant in 2018 when she was doing marketing work for an Ibiza- registered ecigarette company of which he is a director. He explains that he saw the Third Defendant in June 2019 in Ibiza. After that, she left Ibiza at the end of the summer season and travelled to Amsterdam and elsewhere before coming to London.

He and she exchanged messages in late 2019 and early 2020, and there was a plan to meet up in London which did not happen. When the first COVID lockdown happened in March 2020 the Third Defendant was unable to return to Argentina, as she had planned. She did not wish to return to living with the Claimant. Therefore, at the request of a mutual acquaintance, the First Defendant agreed to accommodate her, he emphasises purely as a house guest, at his home in Scotland where he lives with his wife and children.

In his first witness statement the First Defendant says he had no knowledge of the Claimant, nor of any of the alleged agreements between the Claimant and the Third Defendant, until late April 2020 when she told him about the messages she had started to receive from the Claimant.

The evidence is that contact between the Claimant and the Third Defendant continued during March and April 2020. At one stage she planned to return to London, but this did not occur. In April 2020, the Claimant began to contact the First Defendant. On 19 April 2020 the First and Third Defendant reported the Claimant to the police for harassment. This civil litigation began shortly afterwards.

Paragraph 20 of the First Defendant’s first Witness Statement says this:

On 1 May 2020 Andrews J heard the Claimant’s applications for various injunctions against the three Defendants in the First Claim, including for delivery up. The First and Second Defendants were represented by solicitors and counsel; the Third Defendant attended in person. Andrews J dismissed the applications and made an order that the Claimant should pay the First and Second Defendant’s costs. In her order the judge said this:

“The application for interim relief is refused. Much of what the Claimant was seeking (in terms of delivery up) was the type of substantive relief that might ultimately be granted if this matter went to trial and he proved his case. This Court will not grant such relief on an interim basis. There was no, or no sufficient evidence, other than the Claimant’s assertion, that the First or Second Defendants had possession of any of the items of which delivery up was sought, let alone that they would do anything with them. In any event damages are plainly an adequate remedy for the Claimant and the balance of convenience is not in favour of granting an injunction.”

On 19 May 2020 the Claimant began a second claim against the First, Second and Third Defendants and also against Brodies LLP, a large Scottish law firm, which was representing the First and Second Defendants in the First Claim, as Fourth Defendant, and against Callum Henderson as Fifth Defendant. He is the First Defendant’s brother and also a director of, and shareholder in, the Second Defendant. He is also represented by Brodies LLP. I will refer to this as the Second Claim (number QB2020-001776).

Numerous allegations in a similar vein to those made in the First Claim are contained in the Claimant’s self-composed Particulars of Claim in the Second Claim. The allegations against the Fourth Defendant relate to alleged misconduct by it in its conduct of the First Claim. I need not set out the detail. Suffice it to say, as I have made clear, that all of the Defendants deny all of the claims which the Claimant has

In their Skeleton Argument at [17] the Represented Defendants rightly observe that this litigation has a ‘labyrinthine’ procedural history. It is set out in a table annexed to that Skeleton Argument and is summarised in their Skeleton Argument at [28] et seq.

In summary, as matters stood on the 26 October 2020 (the date of the Skeleton Argument; I understand that the Claimant may have made further applications since) the position was as follows.

There were two separate applications for injunctions by the Claimant which were dismissed by Martin Spencer J on the papers on 23 April 2020, and by Andrews J following the hearing on 1 May 2020 to which I have referred. In refusing the Claimant’s application, Martin Spencer J said:

“3.

As disclosed by the emails and texts, this matter arises out of what appears to be a failed relationship between [C] and [D3]: the role of [D1] is unclear. Whether the various agreements asserted by [C] of which enforcement is sought are legally enforceable appears highly doubtful. I have seen no convincing evidence that [D1 and D3] have threatened, bullied or intimidated [C] such as to justify an injunction against them.

4.

I am not convinced that there is a serious issue to be tried, on the evidence I have seen, nor that the balance of convenience lies in granting the Order sought.”

…

7.

However, [C] should be warned that the draft Particulars of Claim and evidence filed so far doubtfully disclose a reasonably arguable cause of action and [C] should obtain his own legal advice.”

At the hearing before Andrews J, the Claimant contended that Brodies LLP ought to be required to provide board resolutions from the Second Defendant authorising them to act on its behalf. As the recitals to her Order make clear, the judge expressly refused that application. Also, she said at [4] and [5] of her judgment:

“4.

Mr Senna wants orders for the delivery up of various materials, including a SIM card and a make-up bag which he says belong to him or to the business that he founded with Miss Nowacki. He may well be right about all of that, but that is the sort of thing that has to be dealt with at a trial after hearing from all of the witnesses. Orders for delivery up are never made on an interim basis without a very good foundation for doing so, and without hearing good reasons for the order to be made. On the basis of all of the material that I have seen, whatever the rights and wrongs about the breakdown in this business relationship, I can see no basis, at this stage, to make such an order.

4.

Insofar as the claims against Mr Henderson and his company are concerned, I have seen no evidence, other than Mr Senna’s suspicions, that Mr Henderson has done anything at all that is actionable, or that he is in possession of any materials that Mr Senna gave to Miss Nowacki, or that he has induced Miss Nowacki to breach any contract; but that would be a matter for trial if Mr Senna persists in bringing the claim against Mr Henderson. Still less can I find any evidence that his company has been involved in anything actionable.”

An application by the Claimant for pre-action disclosure was dismissed by Master Dagnall on the papers on 11 May 2020. On 12 May 2020 the Claimant applied to vary that order, to add Brodies LLP as a defendant, and to disqualify them from acting for the First and Second Defendants. The Claimant withdrew that application on 13 May 2020.

On 19 May 2020 the Claimant applied to join the Second Claim to the First Claim; that is listed for hearing on 10/11 December 2020. On the same day he applied to strike out the Third Defendant’s Acknowledgement of Service in the First Claim and for default judgment. That is also listed for hearing on 10/11 December 2020.

Also listed for hearing at the same time is the Claimant’s 20 May 2020 application to strike out the First and Second Defendant’s Acknowledgments of Service and for default judgment; and the Represented Defendants’ application of 5 June 2020 for strike out/summary judgment on both claims.

On 30 June 2020 the Represented Defendants applied for their strike out/summary judgment application be listed in July 2020, alternatively, for the timetable to be adjusted. This was granted in part and refused in part by Master Dagnall on the papers on 7 July 2020.

On 27 July 2020 the Claimant applied against the Third Defendant for permission to commit her for contempt of court, default judgment, and a number of other remedies, and for all applications to be stayed pending the final determination of contempt applications and the police investigation. That application was dismissed in part by Warby J on 31 July 2020 on the papers; dismissed in part by Lane J on 5 August 2020 following a hearing; part of it (the application for a stay pending contempt/criminal proceedings) is before me; and part of it is listed for hearing on 10/11 December 2020.

On 28 July 2020 the Claimant made a further application for permission to commit the Fourth Defendant (or possibly Mr Rutherford for the Fourth Defendant), for default judgment, and for a number of other remedies, and for all applications to be stayed pending the final determination of contempt/police proceedings. This was dismissed in part by Warby J on 31 July 2020; part is before me (the applications for a stay pending contempt/criminal proceedings and for an injunction that the Fourth Defendant be disqualified from acting); and part is listed for hearing on 10/11 December 2020 (the new default judgment application; the application for summary judgment against the Fourth Defendant on the Second Claim re alleged breach of warranty of authority; and application for indemnity costs).

On 4 August 2020 the Claimant applied to set aside Warby J’s order of 31 July 2020 and for a substantial list of other relief. This was dismissed in part, and part of the application is before me (see below).

Finally, on 15 September 2020 the Third Defendant applied to strike out/summary judgment in relation to the claims against her. This is also listed for hearing on 10/11 December 2020.

Distilling matters down, and as set out in the Represented Defendants’ Skeleton Argument at [8]-[9], the matters before me concerning them are as follows.

I have to decide the Claimant’s applications for:

The latter four applications were ordered to be heard by Warby J’s order of 20 October 2020.

The Claimant also pursues the following relief against the Third Defendant alone and/or the Court itself, as set out in his draft Order of 4 August 2020 (in the Bundle at E/2/1291; the following paragraph references are to the claimed relief in that draft Order):

I have read and re-read the Claimant’s Skeleton Argument. I found it of little or no assistance on the issues that I have to decide. Much of it consists of complaints about how the Court has dealt with his litigation, or it is otherwise irrelevant. For example, at [3]-[4] he wrote (sic):

“3.

From the outset, the Claimant requested an oral hearing in person in a Covid safe Court. On 26 Oct 2020 Mr Justice Knowles on his own initiative directed a remote hearing with total disregard to the mental health problems of the Claimant and the case mismanagement on paper, without hearings

4.

The Claimant will not take part in any remote hearings for a full day which will have adverse impact on the Claimant.”

At [45] et seq under the heading ‘Cockups by the Court’ the Claimant wrote:

“45.

Gross case mismanagement of the case by the making of Orders on papers, without a hearing occasioning delays, cost and unfairness on the Claimant including and not limited to the following:

a.

23 April 2020 Mr Justice Spencer dismissed CPR Application on the papers with out a hearing

b.

On 27 April 2020 Mr Justice Spencer directed a video hearing, stating that telephone hearing was not appropriate

c.

On 1 May 2020 Mrs Justice Andrews held a video conference and failed to establish that D4 was not properly authorised

d.

On 7 July 2020 Master Dagnall wrongly made and Order on the papers, without an Application, without a hearing, on covert communications from D3, granting permission to D3 to participate remotely. Master had no right to determine criminal allegations made by D3 against the Claimant

e.

On 31 July 2020 Mr Justice Warby made an order on the papers without a hearing, in relation to CPR81 actions and service to D3. His Lordship had not right to deprive the Claimant a hearing

46.

Claimant is disabled and suffering from chronic mental health

47.

The Judge is not a medical expert. The Judge has no right to determine on papers without a hearing what is fair and proper for a disabled person with chronic mental health problems

48.

Court has shown total disregard for the Claimant’s disability and chronic mental health and welfare

49.

When the Claimant asked the Court to issue the First Claim and the Second Claim, the Court did not tell Claimant that orders will be made without hearings and all hearings will be remotely held.

50.

If this was made clear to the Claimant, then Claimant would not have issued the Claims. Instead the Claimant would have taken the law into his own hands and sought remedy and redress using any force necessary.”

At [80]-[81] he wrote:

“80.

Claimant is suffering from chronic mental health problems and is at breaking point …

81.

Claimant is ahead case and likely to take the law into his own hands if the Court fails to act.”

Although here and elsewhere the Claimant makes reference to mental health problems, as I have said, there was no medical evidence before the Court (save for the GP letter which I mentioned earlier), and there was no application to adjourn the hearing on health grounds.

These Defendants’ position is as follows (which I paraphrase from their Skeleton Argument at [10] and [105]-[117]):

On behalf of the Third Defendant, Mr Cochran first adopted the submissions on behalf of the other Defendants so far as relevant to his client.

He then said that in relation to his client there were two groups of applications before me: (a) the Claimant’s applications from July 2020, namely, the Stay Application and the Disqualification Injunction Application (the latter of which did not concern his client); (b) the Claimant’s applications as set out in his 4 August 2020 draft Order.

Mr Cochran said that the Claimant’s August applications dealt with overlapping subject matter, and he dealt with them in groups.

In relation to the applications seeking the Third Defendant’s return to the UK and to debar her from taking part in the litigation if she did not do so (ie, [(xiv)], [(xviii)] and [(xx)] of the draft August Order) he said there was no basis in law for them and that they ought to be dismissed. He said they were of a piece with earlier, failed, applications the Claimant had made against the Third Defendant, including that she surrender her passport or be prevented from leaving the jurisdiction, or ordered to return here.

Next, Mr Cochran dealt with the Special Measures Applications (ie, [(i)],[xii], [xiii], [xvi], [xvii]), eg, that the Third Defendant must attend all hearings in person rather than remotely. Mr Cochran said the Claimant’s application did not make sense and that, in any event, the Third Defendant had (and has) valid concerns for her physical and emotional well-being in the face of the Claimant’s intimidation and threats (see above).

Next, in relation to the Claimant’s application for an order that the Third Defendant be restrained from contacting directly or indirectly any DJ ‘in the top 100 DJ database of Senna’ ([(xix)]), Mr Cochran said that this was the same application for relief which Martin Spencer J refused in April 2020.

In respect of the prospective committal applications [(xxiv)] and [(xxv)], Mr Cochran pointed out that such applications had been a regular feature of this litigation and that in July 2020 Warby J had dismissed various such applications and given directions about any future applications. Mr Cochran said the answer was that if the Claimant wanted to pursue contempt proceedings he should make a substantive committal application, rather than seek blanket approval in respect of committal applications which do not yet exist. He referred to an unissued Part 8 Claim Form which the Claimant purportedly served on 26 October 2020 seeking the Third Defendant’s committal. That, however, is not before me and I do not consider it further.

In relation to the Claimant’s July application for a stay pending the outcome of criminal/contempt proceedings, Mr Cochran said there was no basis for such a stay (for essentially the same reasons as advanced by the Represented Defendants).

I begin with the Claimant’s application for an injunction to restrain the Fourth Defendant from acting in the proceedings for the First, Second and Fifth Defendants. As I have said, the Fourth Defendant is a large and well-known Scottish law firm.

I agree with the Defendants’ argument that this application is misconceived and meritless. The Claimant has not set forth any coherent legal basis upon which such a claim could be sustained. He has merely asserted in various places that the Fourth Defendant is disqualified or has been guilty of fraud and so cannot act. Thus, for example, [29] of his Particulars of Claim in the Second Claim alleges:

“On 18 May 2020 in an email timed at 8.10pm, D3 sent to the Court and myself an AOS purportedly prepared and signed by her. This AOS is invalid and a fraud on the Court. It has been prepared by D4 who are coaching her. D4 know they are not allowed to assist D3 because D4 are being joined as a codefendant in the proceedings and because of the nature of the allegations in the POC are automatically disqualified from representing anyone in the same action.” 81.Paragraph 3 of his Skeleton Argument baldly states:

“Board Resolution dated 3 June 2020 is fraudulent and invalid. D4 has no right of audience as representatives of D1 D2 and D5 until the CPR 81 and disqualification is decided by the Court”

I will return to that Board Resolution in a moment.

It seems to me that the Claimant’s ambition is to deprive the First, Second, and Fifth Defendants of their competent and well-resourced chosen legal representatives. And, as those Defendants point out in their Skeleton Argument at [70], the Claimant has also adopted this tactic with respect to the Third Defendant’s pro bono counsel, by threatening to seek costs and damages against him personally and by threatening to turn up at his chambers.

I can readily assume that the Fourth Defendant is aware of its responsibilities, and that should it find itself with a conflict of interest, then it would cease to act for any other Defendant with whom it had a conflict. There is nothing to substantiate the Claimant’s accusations of wrongdoing against it.

One of the Claimant’s points is that the Fourth Defendant was not authorised to act on behalf of its clients at the hearing on 1 May 2020 and that they have, since then, somehow perpetuated that alleged fault.

I accept Mr Rutherford’s evidence in his third witness statement at [54]-[75] that, at all times, his firm has been properly and duly authorised to act for the other Defendants. Further, as Mr Pillai submitted, the matter is put beyond doubt by the evidence demonstrating the Second Defendant’s ratification of the actions taken by the Fourth Defendant on its behalf.

On 3 June 2020 the Second Defendant’s directors wrote directly to the Claimant enclosing the Board Resolution to which I have referred and confirming:

“1.

We have engaged Brodies LLP to act on our behalf in this Litigation;

2.

We consider there to be no issue or conflict with Brodies being engaged and authorised to act for Connor William Henderson ("D1"), Brodies ("D4") or Callum Robert Henderson ("D5") in this Litigation and have declared their interests as appropriate in the manner set out in terms of article 14 of the Company's articles of association (the "Articles");

3.

Brodies was and is authorised to conduct the Litigation on the Company's behalf and do everything necessary, including, but not limited to, engaging counsel to appear at hearings (including the hearing before Mrs Justice Andrews on 1 May 2020), and signing and filing an acknowledgment of service on 11 May 2020;

4.

Brodies obtained authorisation to act in this matter on or around 28 April 2020 from Connor Henderson, Callum Henderson and William Rooney, being a majority of directors, who were authorised per article 7 of the Articles to bind the Company. In any case, we consider it necessary to point out that many Company decisions taken do not require specific board approval in terms of company law or the Articles.

As is made clear by article 16 of the Articles (a copy of which is enclosed with this letter) "subject to the articles, the directors may make any rule as they see fit about how they take decisions, and about how such rules are to be recorded and communicated to the directors”.

I reject the Claimant’s unsubstantiated allegation that this Board resolution was fraudulent.

In terms of the American Cyanamid test for the grant of an injunction, the Claimant does not even get to first base: there is no issue to be tried, let alone a serious one. He has no legal right to prevent the Fourth Defendant from acting. His complaint about lack of authorisation by the Second Defendant, if it ever had any substance, which it did not, has now been fully answered for the reasons I have given.

I accept the Defendants’ submission that, to the extent the Claimant argues that there was a procedural requirement that the Fourth Defendant be authorised in advance of the 1 May 2020 injunction application (a point he appears to have picked up from something Newey J said in the earlier litigation to which I have referred), the Claimant has misunderstood the position.

CPR r 39.6 provides that a company may only be represented at trial by an employee if the employee has been authorised and the court gives permission. The Defendants point out that prior to its removal in the 104^th CPR update on 6 April 2019, [5.1] and [5.2] of PD 39A required that at any hearing where a party is a company and was to be represented by an employee, the Court had to be provided with a written statement including the date and manner in which the representative was authorised to act for the company, eg, written authority from managing director or board resolution (see White Book 2019, p1262). However, in my judgment, the Defendants are right to submit that:

Further, I accept that the Fourth Defendant was in fact authorised to act for the Second Defendant at the hearing on 1 May 2020, irrespective of the subsequent ratification to which I have referred. This is supported by the evidence filed on behalf of the Represented Defendants, including Mr Rutherford’s first witness statement at [17]-[23] and [133]-[138]; his third witness statement at [63(i)]); and by the First Defendant (for himself and as a director of the Second Defendant) in his first witness statement at [38]). The First and Fifth Defendants are the managing directors of the Second Defendant and so had delegated authority to carry out actions within the usual scope of that office, which includes engaging and instructing legal representation. They own all of the shares of the Second Defendant and so, in accordance with well recognised company law principles, they had the power to instruct the directors of the Second Defendant to appoint the Fourth Defendant to act on its behalf.

In addition, so far as the First Defendant and Fifth Defendant in their personal capacities is concerned, there is no justification for an order preventing the Fourth Defendant from acting for them. That is entirely a matter for them, and for the Fourth Defendant, in accordance with its professional obligations.

Overall, in light of what I have said, I conclude that the Fourth Defendant is and was properly able to act for their clients. I therefore dismiss the Claimant’s application for an injunction to restrain them from so acting.

In his draft order of 28 June 2020, the Claimant sought various orders, including at (v) that:

“Any Application by the Defendants be stayed until after the final determination of the Contempt of Court proceedings and until after the final determination of the Police investigation or of any criminal proceedings that ensue.”

Paragraph [xxii] of the Claimant’s draft Order of 4 August 2020 is in similar terms specifically in relation to the Represented Defendants’ strike out application of 5 June 2020.

The Represented Defendants submit in response that there are no grounds to support a stay. I agree. As they rightly point out, these applications (whatever their merits otherwise) has now been overtaken by events.

That is because, first, the police investigation into the Claimant has ended with no further action to be taken against him. Mr Pillai told me this at the hearing following a direct enquiry by me. Further, in an email (in the bundle at p1842) the Claimant said that in mid-August 2020 his solicitor had called him to tell him that his bail had been cancelled. The Claimant has made various complaints about the police still having possession of his property, but that is not a matter that is before me.

Further to that, there are no extant contempt committal applications (that are before me, at least; as I have said, I understand there may have been further applications by the Claimant which are not before me). The Claimant’s application for permission to bring committal proceedings against the Third and Fourth Defendants was dismissed

In short, so far as I am concerned, there are no other proceedings justifying a stay of the strike out application that has been made by the Defendants. I accept the other points made in their Skeleton Arguments, which I will not repeat.

For completeness, I note that the Claimant has applied for the hearing on 10/11 December to be adjourned. That application will be determined in due course.

I have concluded that the four heads of relief sought against these Defendants in the Claimant’s 4 August 2020 application should be dismissed. That is for the following reasons.

In relation to the Claimant’s ‘Direct Communication to Represented Defendant Issue’, the Claimant has continued to communicate directly with the Represented Defendants, despite the fact that they have solicitors on the record for them, and the fact that by an order of Master Dagnall made on 7 July 2020, the Claimant was ordered to communicate with them only via the Fourth Defendant.

That order was made expressly without prejudice to the Claimant’s position that the Fourth Defendant does not, or is not entitled to, act for the other Represented Defendants. Paragraph 7 of the Master’s order provided:

“I am providing that the Claimant (and the Third Defendant and the Court) should communicate with the First, Second and Fifth Defendants for the purposes of this litigation by sending documents to the Fourth Defendant. By doing this, I am not deciding that the Fourth Defendant is entitled to act for the First, Second and Fifth Defendants. However, the First, Second and Fifth Defendants all assert that the Fourth Defendant is entitled to do so, they therefore cannot dispute that such sending will be good service, and it is consistent with the overriding objective that documents are sent to one point only. I can see no reason why documents (not requiring personal service) need or should be sent to other addresses. If the Claimant wishes to contend, and to take the view, that the Fourth Defendant does not act for the First, Second and Fifth Defendants, and not to accept documents from the Fourth Defendant sent on their behalves, that is for the Claimant who will be acting at his own risk if the Court decides that the Fourth Defendant is entitled to act on their behalves. The Claimant should consider carefully whether or not he wishes to take that risk.”

For the reasons I have set out, I have concluded that the Fourth Defendant is entitled to, and does, act for the other Represented Defendants. Whether it continues to do so, as the litigation continues, is a matter for it. I am confident it understands its professional obligations.

I therefore refuse this application. I accept the Represented Defendants’ broad point that communications between one party to litigation and another should take place via their legal representatives.

I agree with [109] of the Represented Defendants’ Skeleton Argument where it is submitted that I should dismiss this application and require that the Claimant comply with the order that has already been made, in default of which his claims against the Represented Defendants should be struck out.

In relation to the Claimant’s application by which he seeks declarations that the First Claim Form, the Amended Particulars of Claim in that Claim, the Second Claim Form and the associated Particulars of Claim, have all been properly served and the High Court has jurisdiction, I agree with the Represented Defendants’ submissions in their Skeleton Argument that the Claimant has not provided an explanation as to the basis for this order. None of the Represented Defendants have challenged this Court’s jurisdiction, and I accept all of their other submissions in their Skeleton Argument at [110] et seq which I do not need to repeat. There is no justiciable issue about jurisdiction. If and to the extent that it does arise then it will fall for determination at the hearing on 10/11 December 2020.

For different reasons, the Claimant contends that the Third Defendant’s Acknowledgment of Service is a nullity, and he seeks default judgment against the Third Defendant (per his application of 19 May 2020). Those complaints include that the wrong address was supplied. He also seeks default judgment against her on the Second Claim on the basis that she failed to file an Acknowledgment of Service.

But, as the Defendants point out, the issue of jurisdiction was raised by Master Dagnall, and resulted in a number of exchanges between the Claimant and the Court. I need not set out the details (they are set out in the Represented Defendants’ Skeleton Argument at [111.4]).

In relation to what I have called ‘The prospective Committal Application Orders’ against the Defendants, on 31 July 2020 Warby J dismissed on the papers the Claimant’s application for permission to commit the Third and Fourth Defendants and gave directions about any future such applications. The short answer to the Claimant’s applications, made in his draft order accompanying his 4 August application, that there be (a) a requirement that any defendant present themselves for personal service at an address in the UK to be disclosed to the Claimant [(xxiv)]; (b) provision that the evidence in support may be provided by witness statement rather than affidavit [(xxv)] is that it will be for the judge as and when any applications are made to give appropriate directions.

Finally, in relation to the Claimant’s application for indemnity costs, I will deal with costs matters when I hand down this judgment, in the normal way.

I turn to the Claimant’s applications in respect of the Third Defendant as contained in the draft order accompanying his 4 August 2020 application to the extent I have not already addressed them (there is some overlap with the relief sought against the Represented Defendants).

For the reasons substantially set out in Mr Cochran’s Skeleton Argument at [15] et seq I reject the Claimant’s applications.

In relation to those applications which seek orders that the Third Defendant return to the UK, the short answer is that there is no basis in law for such orders. Further, as Mr Cochran points out in [18] of his Skeleton Argument, some of these applications overlap with earlier applications that have been refused, including by Martin Spencer J on 23 April 2020 and Lane J on 5 August 2020.

In relation to what Mr Cochran calls ‘the Special Measures Applications’, Master Dagnall gave various case management directions on 7 July 2020 allowing, inter alia, the Third Defendant to attend remotely (see his Skeleton Argument at [27] and [28]). These were open to the Master to make in the exercise of his case management powers and I need say no more. As set out in the Skeleton Argument at [28] Master Dagnall said:

“6.

I am providing that the Third Defendant may attend the hearing remotely and ask for the Court and the relevant Judge to direct particular protective steps for her. She is abroad and may be vulnerable, although it is for her to suggest what might be appropriate for her protection. There is no obvious reason why she should not be able to use a confidential email address when the 3D Main Email Address exists by which documents may be served upon her. In view of the police involvement, there is reason to believe that she may (I say no more than “may” as I am not in a position to decide whether or not she “does”) require protective steps.”

I do not accept that the Claimant will be prejudiced in any way by this order. 118.For the reasons set out in the Third Defendant’s Skeleton Argument at [31]-[33] I reject the Claimant’s application that she be examined on her assets. There is no proper basis for such an order.

Finally, as to his application in [xix] of his draft Order of 4 August that ‘D3 be restrained from contacting directly or indirectly any DJ in the top 100 DJ database of Senna’, I agree that this appears to be the same (or similar) relief which the Claimant earlier sought in his ex parte injunction application in April 2020 when he sought an order to restrain the Third Defendant from ‘directly or indirectly making use of the database and information that was compiled by the [Third Defendant] for [the Claimant] in relation to (i) the top 100 DJs’.

That application was dismissed by Martin Spencer J when he said that, ‘Whether the various agreements asserted by the Applicant of which enforcement is sought are legally enforceable is highly-doubtful.’ I agree with this assessment. The pleaded agreements (which, as I have said, the Third Defendant denies) certainly do not provide any sufficient basis for an injunction.

For these reasons, and those contained in the Defendants’ Skeleton Arguments, I reject all of the Claimant’s applications. Furthermore, they are all totally without merit and I so certify.