Barclays Bank v Khaira
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE LEGGATT,SIR DAVID CROOM-JOHNSON |
| Judgment Date | 30 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0430-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0405 |
| Date | 30 April 1992 |
[1992] EWCA Civ J0430-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Thomas Morrison QC. sitting as a Deputy High Court Judge)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Leggatt
and
Sir David Croom-Johnson
92/0405
MR. ALI MALEK and MISS ANNIE HOCKADAY (instructed by Messrs Harris, Rosenblatt & Kramer) appeared on behalf of the Respondent (Plaintiff).
The Appellants (Defendants) appeared in person.
I will ask Lord Justice Leggatt to give the first judgment.
By a judgment delivered on 13th December 1991 Mr. Thomas Morrison Q.C., sitting as a Deputy High Court Judge of the Chancery Division, made an order that each of the defendants in the action, Asa Singh Khaira and Bikram Jit Khaira, do on 1st February 1992 deliver to the plaintiff, Barclays Bank plc ("the Bank") possession of a property comprised in a charge certificate incorporating a mortgage dated 25th June 1984. The property is 297 Bath Road, Hounslow, Middlesex.
The Bank's claim in the action was founded on that legal charge whereby the defendants, Mr. and Mrs. Khaira, who are husband and wife, had charged 297 Bath Road to the Bank to secure loans made by it to Mr. Khaira. The proceedings were begun by way of originating summons, but continued by order of the Master as if they had been begun by writ.
The Bank had previously obtained judgment against Mr. Khaira on 19th September 1986 for a sum of nearly £150,000 and costs. Five months later he was adjudicated bankrupt. So it was that when, at the end of November 1987, Mr. Khaira was before the Master seeking leave to defend the action, the Master gave him leave, subject to the consent of his trustee in bankruptcy. That order was not appealed against. The trustee has refused his consent on more than one occasion, and accordingly Mr. Khaira filed no defence in the action. When the matter was before the deputy judge, Mr. Khaira applied for leave to take part in the proceedings as a party or as though he were a party. That application was rejected by the deputy judge who, however, remarked that it would be open to either party, that is, either Mr. Khaira's wife, the second defendant, or the Bank to call him as a witness. Neither party took advantage of that opportunity. The deputy judge encapsulated the issues in the action before him by saying in an early part of his judgment (at page 13 in our bundle):
"Whatever interest Mr. Khaira has in the property…he has no defence to the claim for possession because he does not, through his Trustee in Bankruptcy, seek to suggest that the Charge is not binding upon him. If Mrs. Khaira has an interest in Bath Road which has not been effectively charged, then no order for possession can be granted against her."
The deputy judge went on to summarize Mrs. Khaira's defence as follows:
"In a sentence, Mrs. Khaira's defence is that she has an overriding interest in Bath Road, pursuant to section 70(1) (g) of the Land Registration Act 1925, which was not effectively charged to the bank because she executed the charge in reliance upon fraudulent misrepresentations made to her by her husband and as a result of improper pressure and undue influence upon her by him, and that he was the Bank's agent at the time and the Bank are liable for what he did. Further, she says that she was negligently treated by the Bank in that they failed to advise her to seek independent legal advice or properly to explain the nature and effect of the legal charge over Bath Road before she signed it."
Having, in the course of a careful and comprehensive reserved judgment, considered those issues and the law relating to them the deputy judge came to this conclusion:
"It follows that I am satisfied that the charge over Bath Road was effective to charge Mrs. Khaira's interest therein, and that the Bank are entitled to an order for possession of the property."
Notwithstanding the fact that he was not a party to the proceedings in the circumstances to which I have referred, Mr. Khaira, as well as Mrs. Khaira, now seek to appeal against the Deputy Judge's judgment.
The notice of appeal is drafted by the defendants, and in all probability by Mr. Khaira himself. It is headed "Rough justice, miscarriage of justice" and extends to 12 numbered paragraphs together with a further unnumbered paragraph. That notice of appeal, by its present application, the Bank seeks to strike out. It does so on the grounds that, so far as Mr. Khaira is concerned, he has no right to issue and serve a notice of appeal and, so far as both defendants are concerned, that the appeal is in any event frivolous, vexatious or an abuse of the process of the court and as such should be struck out.
There is no doubt that this court has an inherent jurisdiction to strike out a notice of appeal upon that ground. It is a ground analogous with that expressly given by Order 18 rule 19 of the Rules of the Supreme Court. It is a power that can be exercised but rarely, and only in circumstances where there is no possibility that the grounds in the notice are capable of argument or that the court would entertain new grounds relating to matters not raised in the court below. That proposition was clearly supported by the authority of Lord Justice Glidewell in Burgess v. Stafford Hotel Ltd. [1990] 1 WLR 1215 at page 1221/2, which was a decision of a two-judge court. It has since been approved and applied by the full court in Woodard Schools (Southern Division) Ltd. v. Barton of which a transcript is available to the court, the judgment having been delivered on 12th December 1990.
The notice of appeal to which I have referred has today been supplemented by Mr. Khaira's production of a bundle in which the principal document was again one headed "miscarriage of justice" and relating to what is termed 'a conspiracy to pervert the course of justice'. In summary it makes a number of allegations which lend something in the way of force, though little in the way of particulars, to allegations already made in the notice of appeal. It is right to record that it refers to the deputy judge having failed to understand Mrs. Khaira's English; but in the course of his judgment he says that whereas at the outset he had difficulty in following her accent he became accustomed to it and, as the case wore on, he could well understand what she said. He was also satisfied that Mrs. Khaira, who is an educated lady, well understood the proceedings, having not only been taught, but having herself taught, in the English language. The supplemental document also refers to there having been a private discussion between the learned judge, counsel for Mrs. Khaira and counsel for the Bank. It is said that the three of them conspired to pervert the course of justice. But when it comes to the affidavit included in the bundle I have mentioned, which was sworn by Mr. Khaira on 19th February 1992, he says at paragraph 10, in what evidently is a reference to the same point:
"I suspect few points discussion in private after trial prejudicial to justice in this case."
That perhaps affords some indication of the factual basis, or lack of it, relating to that allegation. Since it is wholly unparticularised, it cannot stand.
reverting to the substantive notice of appeal in relation to Mr. Khaira, the Bank submits by means of a helpful and, in the circumstances, detailed skeleton argument provided by Mr. Malek on its behalf, that Mr. Khaira has no right of appeal because he failed in his application to participate in the trial. Against the judge's preliminary ruling that he should thus be excluded on account of the vesting in his Trustee in Bankruptcy of his right of action, there was no appeal. In the course of his judgment the judge explained why he had arrived at that conclusion. It appears to me to be unimpeachable. It follows that, just as he had no right to participate in the trial, so Mr. Khaira has no right of appeal, and the Bank's application against him must therefore succeed. He was nonetheless...
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