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Neutral Citation Number: [2001] EWCA Civ 1274

IN THE SUPREME COURT OF JUDICATURE

B1/2001/1320

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHESTER CROWN COURT

(Mr Justice Thomas

Judge Edwards QC)

Royal Courts of Justice
Strand
London WC2
Thursday 26 July 2001

Before

LORD JUSTICE BROOKE

LORD JUSTICE TUCKEY

BETWEEN:
PAULINE MARY PAULSON (formerly LAMB)
Claimant/Respondent

and

ASAD DONCARLOS BANDEGANI
Defendant/Appellant

(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4 A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)

The Appellant appeared on his own behalf
The Respondent did not appear and was not represented

JUDGMENT
(Approved by the Court)
©Crown Copyright Thursday 26 July 2001 JUDGMENT

1.   LORD JUSTICE BROOKE: This is an application by Mr Bandegani for permission to appeal against an order of Thomas J made on 11 May 2001. The order as drawn up read:
  
"1.   The appellant's request for an oral hearing for permission to appeal the order of His Honour Judge Edwards QC dated 19 March is refused.
 2.   The appellants application for an adjournment of this hearing is refused."
2.   Because I was in some doubt as to the full range of orders made by the judge that day, I caused enquiries to be made by the Civil Appeal Office of the judge. The judge said that he did two things: he refused Mr Bandegani's application for an adjournment of the hearing, and he refused permission to appeal.
3.   It is now well known that there is no further appeal to this court against a refusal of permission to appeal by a lower appeal court (in this case Thomas J): see Access to Justice Act 1999, s 54(4). On the other hand, on the authority of Foenander v Bond Lewis & Co [2001] EWCA Civ 759; [2001] 2 AER 1019, this court does have jurisdiction to hear an application for permission to appeal against an original order of a judge in an appeal court, for example an order to refuse an adjournment or to refuse an extension of time for appealing.
4.   This matter arises out of protracted litigation in the Chester County Court between Mr Bandegani and his landlady in connection with his tenancy of a property known as 10A Dee Banks. It is necessary to refer to some of the earlier orders made in the case to understand the history.
5.   On 11 August 2000 an order was made in that court, "upon hearing the solicitor for the claimant, and the applicant, Mr Bandegani, not appearing (having indicated his intention not to attend)", that:
  
"1.   Further to the order of Judge Ewing of 27 April 2000 consolidating [three actions] under the head of [a single action] the further action CH003300 shall also be consolidated with the aforesaid action under the same head.
 2.   The said actions shall be listed before the designated Civil Judge on 26 September 2000 at 12.00 noon for consideration of the application of Part 24 of the Civil Court Procedure Rules namely whether claimants have any real chance of success or the defendant any real chance of defending the actions
 3.   Estimated length of hearing 2 hours
 4.   The Court will also consider its powers to prohibit the issue of further proceedings without leave in relation to the issue of the tenancy at 10A Dee Banks."
6.   The matter was therefore listed before Judge Edwards QC, who is the local designated civil judge.
7.   On 26 September, after hearing the solicitor for the claimant and upon hearing Mr Bandegani in person, Judge Edwards ordered that:
  
"1.   "1. There be Judgment forthwith for Mrs Paulson in respect of arrears of rent within [one of the actions] in the sum of £3,594.70 under Part 24 of the Civil Procedure Rules, the Defendant having no real chance of defending the Claim. The Possession is not pursued, the tenant having given up possession. The Possession Claim is not in any event susceptible to Summary Judgment.
 2.   For the avoidance of doubt action CH000222 has been determined in this Court and the Court of Appeal and is at an end.
 3.   Actions CH001889, CH003661 and CH003300 are dismissed as having no real chance of success.
 4.   The Court in its Case Management Powers under the Civil Procedure Rules, Part 3 directs that no further action is to be commenced by Mr Bandegani in respect of the tenancy of 10a Dee Banks, without leave of the Court. Any such application for leave is reserved to His Honour Judge G O Edwards QC."
8.   On 24 October 2000 Judge Edwards made a further order following an application made to the court by Mr Bandegani for permission to appeal the order of 26 September 2000. Without a hearing, Judge Edwards refused permission to appeal and directed that Mr Bandegani's application for permission to appeal be referred to the High Court for consideration of permission to appeal to a single judge of the High Court. He dismissed Mr Bandegani's application for a transfer of the actions to Newport. He then gave reasons for his decision in writing. On the second page of the order he said:
  
   "I regard the remaining actions brought by Mr Bandegani to be meritless and an abuse of process by way of harassment of a sick elderly Claimant who was only seeking to be paid the rent due. Mrs Paulson, who did not qualify for remission of fees or Legal Aid and who is both elderly and gravely ill with cancer has been forced into Court over twenty times by Bandegani, an enthusiastic litigator, in connection with this one tenancy. She has no hope of recovering costs from him. I formed the conclusion that Mr Bandegani was abusing the process of the Court by all these claims either simply out of spite or to trade them off against Mrs Paulson's own legitimate claim.
   There is at present nothing to transfer to Newport, the actions being at an end. Moreover Mrs Paulson who lives in Chester is gravely ill with cancer and is the Defendant in most of the claims. Mr Bandegani is young, strong and in good health."
9.   Mr Bandegani appealed Judge Edwards' order. Thomas J refused his application for permission to appeal on paper. Mr Bandegani renewed his application, and on 15 January 2001 McKinnon J at Cardiff Crown Court heard Mr Bandegani in person and directed, by an order drawn on 5 February 2001, that permission to appeal be refused.
10.   On 14 March 2001 Mr Bandegani sought to start new proceedings against Mrs Paulson, claiming damages under a number of headings. On 16 March Judge Edwards QC, on reading his letter and his application for permission to start this new claim, refused permission to issue pursuant to paragraph 4 of his order of 26 September 2000 on the ground that:
  
   ". . . the new action is patently vexatious and is essentially a matter disposed of or which could have been dealt with in the previous action."
11.   Mr Bandegani sought permission to appeal against Judge Edwards' order. On 26 March Judge Edwards refused permission to appeal on the following grounds, written into his order within quotation marks:
  
   "Mr Bandegani has been conducting a spiteful campaign against his former landlady - a lady who is desperately ill with cancer. All his previous actions have failed and this is just another, in my view meritless step in that campaign."
12.   Mr Bandegani then sought permission to appeal against Judge Edwards' order of 16 March to a High Court judge. On 17 April Thomas J on paper refused permission to appeal and refused an extension of time. Thomas J said on the face of his order:
  
   "His Honour Judge G O Edwards QC was right in concluding that the matters the subject of the present action were either disposed of in the previous action or ought to have been disposed of in that action."
13.   On 18 April 2001 Mr Bandegani renewed his application and filed a skeleton argument setting out the reasons why he was seeking permission to appeal. On 2 May the court ordered that there should be an oral hearing of this application on 11 May. Copies of the order were sent to both parties. For some reason Mr Bandegani's copy of the order was included in the same envelope as that sent to his former landlady, the proposed defendant. The respondent and a friend, Mr Ashworth, filed affidavits. They explained that they had decided to take items of Mr Bandegani's property to Mr Bandegani in Newport on 5 May. As they were loading the vehicle and were about to leave, the postman delivered a letter from the court enclosing notices of the hearing for Friday 11 May. They explained how Mr Bandegani's copy was enclosed in the same envelope. They then described how they took the property and the notice of the application to Mr Bandegani's home in Newport and how they left the court's letter and the notice of the hearing for him with a friend of his, who opened the door. The notice of the hearing on 11 May was therefore served on Mr Bandegani on 5 May.
14.   He has explained to us today that he was away from his home then and for the next five days and was not there to pick up his post. He did not therefore receive knowledge of the hearing on 11 May until 10 May. He then sent a letter to court by fax, seeking to apply for an adjournment of the oral hearing for permission to appeal because:
  
   ". . . to enable the court to deal with the matter justly I have applied to the Community Legal Service for 'help at court'.
   I very much apologize for this late request as I had received the order yesterday post dated 05/05/01 due to bank holiday Monday."
15.   It was not clear on the face of that letter that Mr Bandegani had been in fact been away from his home between 5 May and 10 May and that the letter had been delivered to his home on 5 May.
16.   The matter came before Thomas J in court on 11 May. The judge decided in the exercise of his discretion to refuse the adjournment sought. He also refused permission to appeal. Mr Bandegani, who was not present in court that day, then sought the reasons for the judgment. A representative of the Court Service listing section at Chester wrote to him on 18 May:
  
   "After speaking to the clerk to Mr Justice Thomas I can confirm that there was no written reasons given for refusing your appeal.
   The only reasons given were on the tape and these have been copied to you by way of order."
17.   Mr Bandegani then faxed to this court a notice of appeal which was received by fax on 25 May. It was therefore in time for the appeal. Unhappily, when the court papers were prepared for the hearing no mention was made of this notice received by fax. The court was not given a dated notice of appeal or a sealed notice of appeal. All we received was a "bundle of appeal index" which was received on 31 May. Mr Bandegani has now satisfied us that this appeal was received by the court office in time.
18.   The only issue we therefore have to determine is whether he should be granted permission to appeal against Thomas J's refusal of an adjournment. He says that he does not know what reasons were given by Thomas J. Unhappily, because of the way the member of the court staff at Chester responded his letter, we do not have a transcript of what Thomas J said. By the time we understood the difficulty it was too late to obtain a transcript.
19.   However, having looked at the papers before us carefully, I consider that Thomas J, on any showing, would have been entitled, if he had wished to, to exercise his discretion to refuse the adjournment once he knew that the notice of the oral hearing had been served at Mr Bandegani's home on 5 May, six days earlier. Mr Bandegani has sought to persuade us to look at the underlying merits of the matter, because he submits that he has lost valuable rights by reason of the way that the matter has been handled.
20.   It became clear to us at the hearing, however, that two High Court judges refused his application for permission to appeal the orders made last September. Thomas J has now considered the merits of his challenge to Judge Edwards' latest order twice, and has now refused permission to appeal twice. It appears to me that it would be wrong for us to go further into the underlying merits. Judge Edwards made his view of this torrent of litigation quite clear in September 2000, and he would have been well aware of the issues when he had to consider Mr Bandegani's application to bring yet further proceedings in March 2001.
21.   Accordingly, in my judgment this is not a case in which this court should grant permission to appeal against the order of Thomas J refusing the adjournment. As I said at start of this judgment, we have no jurisdiction to hear an appeal against Thomas J's refusal of permission to appeal.
22.   There are a number of other matters which need to be mentioned in the light of this case. First, in my judgment in Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311, I drew attention at paragraph 46 to the importance of court staff drawing up orders correctly. They should consult the judge in cases of any doubt. The order of Thomas J was not drawn up correctly. Secondly, it would have been helpful if the Chester court office could have responded to Mr Bandegani's letter following the hearing by explaining why, if it was the case, it was not possible to have the tape of what Thomas J had said transcribed, on payment of the appropriate fees. The representative of the Listing Section said in her letter that "The only reasons given were on the tape and these have been copied to you by way of order". On the face of it, it seems most unlikely that this is all that Thomas J said when he dealt with this matter in court. Perhaps there was a misunderstanding between the listing officer and the judge's clerk: we do not know.
23.   Thirdly, if a party faxes a notice of appeal to the Civil Appeals Office, as happened on this occasion, it is of great importance that the judges handling the appeal should be told of the date on which the notice of appeal was received by fax, and, if it was the case, that the court had acknowledged that it had been received by fax. Otherwise misunderstandings may arise as to the date on which the appellant's notice was filed at the court.
24.   Finally, judges in lower appeal courts should be vigilant to take steps by which this court can know whether they consider that an application for an adjournment in a case like this was in their opinion a sham, designed to lead to the possibility of a further appeal to this court, in circumstances where this court would have no jurisdiction to entertain an appeal against an order refusing permission to appeal. If the staff in the Civil Appeals Office are in any doubt whether this court has jurisdiction in such a case, they should consult the supervising lord justice, who will need to be able to read the lower court's view on the question whether such an application was a bogus sham, or whether reasons of substance were raised such that the lower appeal court judge ought in the exercise of his discretion have granted the adjournment sought. It may be convenient for the order of the lower court to set out the reasons why the adjournment was refused.
25.   I would therefore dismiss this application.
26.   LORD JUSTICE TUCKEY: I agree.
   ORDER: Application refused