Ashley Dobbs v Nigel Morrison and Michael Gerrard and Triodos Bank Nv
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,MASTER GLADWELL,LORD JUSTICE CHADWICK,LORD JUSTICE DYSON,Lord Justice Neuberger,LORD JUSTICE NEUBERGER |
| Judgment Date | 17 June 2005 |
| Neutral Citation | [2004] EWCA Civ 1871,[2005] EWCA Civ 468,[2005] EWCA Civ 829,[2005] EWCA Civ 397,[2004] EWCA Civ 1857,[2003] EWCA Civ 1730 |
| Docket Number | A3/2004/1614 A3/2002/2208 (A) A3/2004/1614 (A),A3/2005/0473,A3/2004/1613,A3/2003/1974,A3/2004/1613(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 2005 |
[2003] EWCA Civ 1730
Lord Justice Mummery
A3/2003/1974
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE NEUBERGER)
Royal Courts of Justice
Strand
London, WC2
The Applicant appeared on his own behalf
The Respondents did not appear and were not represented
This is an application for permission to appeal, accompanied by an application for an extension of time in which to appeal. The application is made by Mr Ashley Dobbs in person. He is the claimant in the proceedings. The decisions which he wishes to appeal are those made by Neuberger J on 7th July 2003.
In order to obtain permission to appeal from this court, it is necessary for the applicant to establish that there is a real prospect of the appeal succeeding. Certain types of decision are more difficult to appeal than others. There are special provisions in the practice direction in relation to case management decisions. In addition, any decision taken by a lower court in the exercise of its discretion can only be appealed to this court on limited grounds, namely that there has been some error of principle or approach by the lower court in the exercise of the discretion or, for some other reason, the result of the decision is plainly wrong. This court will not interfere with the exercise of a discretion solely on the ground that it would have exercised the discretion in a different way than the person to whom the discretion was entrusted.
In this case a number of applications were dealt with by Neuberger J on the same day as a case management conference was fixed. The most important of the applications was an application by Mr Dobbs for permission to amend his pleadings in order to make out an additional case against the receivers of his company, such case being not simply on the basis of breach of duty in relation to the sale of company property at an undervalue, but to allege conduct based on bad faith.
There were a number of other applications. I will list them. There was an application for an order under CPR 44.14 in respect of alleged misconduct of the legal representatives of the opposing parties. Directions were sought in relation to the issue of Mr Dobbs' locus standi as an individual to bring these proceedings; his point being that he wished to bring the claim on behalf of the company, and, if that was not possible, the receivership which had been instituted by the bank should be overturned. He made application in relation to the failure of the bank to make disclosure of relevant documents. He made an application in relation to the amendment of his case in order to deal with the claim under the "step-in clause", which is referred to as 2.2.4. He wished to challenge the orders for costs which had been made so far in the case against him, contending that the costs should have been costs in the case, rather than costs against him in any event.
All of these points were accompanied by a general point that Mr Dobbs did not like the way in which he was dealt with as a litigant in person on 7th July. He complained about the conduct of counsel representing the other side and the failure of the judge to intervene (as he described it) in the spirit of the Woolf reforms. He said the judge should have taken an interventionist role to help a person who had no access to legal advice and was trying to do the case in person.
That is a brief introduction to what is a very substantial number of documents in the case and a rather complex history of proceedings. The background to the case is more fully set out in the judgment which Neuberger J gave on 19th December 2002, when he dealt with a number of applications, including allegations against the receivers, which he only allowed to proceed on the basis that the case against them was limited to allegations of breach of duty in relation to the sale of the company's property at an undervalue.
That is the main theme of Mr Dobbs' submissions today. He wishes to have reinstated in his claim allegations against the receivers to the effect that they accepted the office of receivers improperly, dishonestly and in bad faith, and that he should be able to pursue against them the same kind of allegations which he is making in the action against the bank.
The bank, which I have referred to without naming so far, is the Triodos Bank NV, which made a number of loans to a company called Acorn Televillages Ltd, of which Mr Dobbs was the director and majority shareholder. It is unnecessary for the purposes of dealing with today's applications to go into the history of financing and refinancing or the various agreements which were made between the bank, Acorn Televillages Ltd ("Acorn") and another company called Countryside Properties (South Western) Ltd ("CSW"). The important points are these. Acorn was involved in the development of residential and other types of property in North Wales. CSW had entered into a contract with Acorn about the development. The precipitating event in these proceedings was the appointment in October 2000 of receivers over the company by the bank. Mr Dobbs was himself at risk of personal liability in respect of personal guarantees which he had given to the bank and which the bank brought proceedings to enforce. Those guarantees were reinforced by a charge over the home owned by Mr Dobbs and his wife. I am told by Mr Dobbs that the trial of this action, which was originally to take place in October 2003, is now to take place in mid-March 2004. The aim of these various applications of Mr Dobbs is to get the case in a proper state as regards the parties, disclosure of documents, issues on the pleadings and other interlocutory matters before the trial starts.
I deal first of all with his main point because that is the theme that runs through all the other points. That is, in a sentence, that the receivership was used for improper motives. It was used by the bank to kill off Acorn, in order to kill off claims that Acorn and/or Mr Dobbs might have against the bank. He says that the receivers were culpable for their part in this matter over and above any breach of duty in relation to the sale of the Televillages development which took place to a third party at just over £2 million in April 2001.
His case is this —and he has sought to reinforce his points by reference to a large number of documents in the bundle —that the overall purpose of the receivership was an improper one. He had a profitable business before the receivers were appointed. He pointed to documents showing a huge profit margin. He says there was evidence that the bank had shopped around for receivers, that secretly they were making plans to appoint receivers. He pointed to documents showing, he said, that the debts of Acorn were substantially overstated. He says that the receivers were behaving improperly in various ways once appointed. He took me in some detail to the amounts which he says were spent in relation to public relations, there having been a substantial amount of publicity about the collapse of Acorn in the press and on the television. He says that the receivers told lies to the press; that they were part of the bank's purpose in killing off the company to kill off the claims against them; that the receivers knew of skulduggery and became implicated in it, in particular, in their involvement in the original plans of the bank to sell off the development property of Acorn to CSW. He says that serious damage has been caused by the receivers, and it is wrong that they should be let off the hook when they had acted in bad faith. That was the effect of Neuberger J's refusal to allow Mr Dobbs to amend his pleading to make these allegations against the receivers.
He said a number of other things in different words which I think come down to the points I have already summarised. The receivers were turning a blind eye to the motives of the bank. He alleges that they took on the receivership in order to get the fees. His suspicions were aroused by the fact that the receivers and the bank used the same firm of solicitors, which he described as worse than robbery. He says the same firm should not have acted both for the receivers and the bank. He referred to an application which he had made to this court in relation to that matter arising from a decision of Judge Havelock-Allan QC in Bristol. I am told that the application to this court in that matter came before Clarke LJ. It was an application for permission to appeal, and it has been adjourned. He says that there was an obvious conflict of interest which made it wrong for the solicitors to act for both parties. The receivership, in summary, was being used as an obstacle to him obtaining justice. He says that he wants damages over and above what he may be able to recover for any breach of duty by the receivers for selling the property at an undervalue. He wants damages for malicious destruction of his business and his livelihood.
I think if I said any more about the kinds of allegations that Mr Dobbs wishes to make against the receivers, I will simply be repeating in different words what he has summarised this morning.
The position on this is that, as a matter of law, allegations of dishonesty should not be made without proper grounds for making them. The question whether these allegations could properly be made against the receivers was examined in some detail by Neuberger J in the judgment which he gave on the hearing in December 2002. He...
To continue reading
Request your trial
-
Ansar v Lloyds TSB Bank Plc and Others
...Capital Projects v Whitefriars City Estates Ltd [2005] 1 AER 723 and the decision in the Court of Appeal in Dobbs v Theodos Bank NB [2005] EWCA Civ 468. It is unnecessary to make any citation from Amec as it seems to me the passage cited by Burton J at paragraph 19 is simply a support for t......
-
Mrs Sukhvinder Kimyani and Others v Mrs Devinder Sandhu
... ... debt order addressed to the defendant's bank, and ordered the defendant to pay the claimants' ... that criticism was justified or not": Dobbs v Tridos Bank NV [2005] EWCA 468 ; see also Re ... ...
-
Mrs Sukhvinder Kimyani and Others v Mrs Devinder Sandhu
... ... debt order addressed to the defendant's bank, and ordered the defendant to pay the claimants' ... that criticism was justified or not": Dobbs v Tridos Bank NV [2005] EWCA 468 ; see also Re ... ...
-
H v L and Others
...a party to be nursing a sense of grievance, however unjustified. However that is not a good reason for resignation or removal. In Dobbs v Triodos Bank NV [2005] EWCA Civ 468, Chadwick LJ said: "7. It is always tempting for a judge against whom criticisms are made to say that he would prefer......