Alison Virginia Ashcroft v Rupert Jolyon Richard St John Webster
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 22 January 2021 |
| Neutral Citation | [2021] EWHC 353 (Ch) |
| Court | Chancery Division |
| Date | 22 January 2021 |
| Docket Number | Case No: B30BS071 |
[2021] EWHC 353 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
2 Redcliff Street
Redcliffe
Bristol BS1 6GR
HIS HONOUR JUDGE Paul Matthews
Case No: B30BS071
Mr O Wooding appeared on behalf of the First Claimant/Respondent
The Second Claimant/Respondent appeared in person
Mr R Trevis appeared on behalf of the Defendant/Applicant
JUDGE This is an application by notice dated 12 October 2020 by Mr Webster to vary an order which was made by HHJ McCahill QC on 23 March 2015. It has been heard remotely via the MS Teams video platform. The application is to remove a clause from that order, which it states as 3(c). But it is accepted that it is in fact clause 5(3)(c). I will come back to what it says. The application is not supported by a separate witness statement but only by the evidence contained in box 10 of the application notice, which is comparatively short. It says:
“Defendant applies: that clause (3)(c) of the 23 March 2015 order is removed; to serve a skeleton argument in application CH-2020-000194 for permission to appeal a 6 August 2014 order out of time under claim number HC09C01570; to bring any claim under the Trusts of Land and Appointment of Trustees Act 1996 sections 12 to 15; to bring a claim in professional negligence against the second defendant/his firm; to send a communication to the United Nations Disability Committee under article 1 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities; to serve evidence in new claim BL-2019-BRS-000031 between the first and second defendants; and to serve evidence in any other action that is commenced by any party. The HC09C01570 skeleton argument is attached to this application. A copy of the 23 March 2015 order is attached to this application.”
The order of HHJ McCahill QC of 23 March 2015 followed a lengthy and detailed judgment given by the judge which was given ex tempore and the transcript for which covered more than 20 pages. That judgment and then the order implementing it were made following an application which was made by Mrs Ashcroft and Mr Penley by notice dated 23 May 2015. That application was made in two separate proceedings, B30BS107 and B30BS071, and the order dealt with both. What the order effectively said (and I am summarising) in relation to claim B30BS107 (where Mr Webster was claimant and Mrs Ashcroft and Mr Penley were defendants) was, first, that the claimant's application to amend his particulars of claim was refused as totally without merit; second, that the claimant's claim to vary the interim injunction in B30BS071 was to be treated as made in that claim and dealt with further on in the order; third, that the claim B30BS107 was struck out; and fourth, that the claimant (that is Mr Webster) was to pay the defendants' costs. That took up the first four paragraphs of the order.
Then we come to claim B30BS071, in which Mrs Ashcroft and Mr Penley were the claimants and Mr Webster was the defendant. At paragraph 5 of the order, HHJ McCahill QC effectively entered judgment in default of a defence in favour of the claimants. Then there are a number of subparagraphs set out. The first stays the claim for damages with liberty to restore it. The second makes a declaration that the claimants are the freehold owners of The Priory. The third, which is the matter which we are concerned with, grants an injunction against the defendant (Mr Webster), prohibiting him, first of all, from entering the property (that is The Priory), and secondly from encouraging (and other similar actions) anyone else to enter The Priory.
Then thirdly (and this is the subparagraph 5(3)(c) that we are really concerned with in this application) it prohibits him from publishing statements of a number of kinds. These are (i) that either he or his father's estate (and that is Commander Valentine Webster) had an interest in the property, (ii) that the permission of the defendant or the estate of his father was required in order to sell the property, (iii) that the claimants were not the owners of the property, and (iv) that the claimants could not give instructions for the sale of the property. Then there was a further injunction against the defendant's interfering with the marketing or sale of the property, and also against making any entries against the properties at the Land Registry. However, subparagraph 5(3)(c) was subject to an exception for certain listed proceedings, and the details of those proceedings were given. There were five of them in total.
The order then went on by paragraph 6 to deal with the defendant's application to vary the injunction in claim B30BS107. In paragraph 7, it released the claimants from various undertakings they had given. By paragraph 8, it was ordered that the defendant pay the claimants' costs. There were then some provisions which dealt with both claims. There were payments ordered on account of costs. Permission to appeal was refused to Mr Webster and an extended civil restraint order was made by the judge against him. That extended civil restraint order expired in 2017, when I renewed it for a further two years, but it expired in 2019.
What Mr Webster wishes the court to do is to remove clause 5(3)(c) so that he is now free to publish statements of the kind which are set out in that part of the order without being limited to the listed proceedings. He has put forward a number of cases in which he wishes to make such statements. I will come back to those, but first I must consider what jurisdiction the court has to vary what was, in my judgment, a final order made by HHJ McCahill QC in that litigation.
The only rule which is relied on here is that contained in CPR 3.1(7), which reads as follows:
“A power of the court under these rules to make an order includes a power to vary or revoke the order.”
This is a rule which, on the face of it, looks extremely wide in scope. But it is clear from the cases which have been built up upon it that that scope is rather more limited than might first be imagined. I was referred in particular to the Court of Appeal's decision in Roult v The North West Strategic Health Authority [2010] 1 WLR 487 where Hughes LJ gave the judgment of the court.
There, in particular at paragraph 15, Hughes LJ said this:
“There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs & Excise Commissioners v Anchor Foods (No 2) The Times, 28 September 1999. So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams [2006] 1 WLR 1945. I agree that, in its terms, the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case, I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am, however, in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis upon which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural or continuing orders which may call for revocation or variation as they continue. An interlocutory injunction may be one. But it does not follow that, wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the...
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