Christopher Paul Reynard v Nigel Fox
| Jurisdiction | England & Wales |
| Judge | Paul Matthews,HHJ |
| Judgment Date | 08 March 2018 |
| Neutral Citation | [2018] EWHC 443 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: D65YJ669 |
| Date | 08 March 2018 |
[2018] EWHC 443 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: D65YJ669
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
The Claimant in person
Siward Atkins (instructed by Clyde & Co) for the Defendant
Hearing dates: 4 December 2017, 22 January 2018
Judgment Approved
Introduction
This is my judgment on two applications. One was made by the claimant by notice dated 12 October 2017 to set aside an order made by Deputy District Judge Josling on 20 September 2017 transferring this claim from the County Court Money Claims Centre (“CCMCC”) to the County Court at Bristol, and for an order to return the matter to the CCMCC. The other was made by the defendant by notice dated 20 September 2017, to strike out the claim under CPR r 3.4(2)(a), (b) or (c). However, that bald statement hides a wealth of history and other litigation activity which has led to the present complicated procedural dispute.
The claimant is a former ski tour operator, who had the misfortune to be adjudicated bankrupt on 1 October 2012. The defendant, an insolvency practitioner and a partner in accountants Baker Tilly, was appointed trustee in bankruptcy on 24 July 2013. A large house in a large estate, known as Idehill Lodge, Farway, Cornwall (“the property”), was sold on 14 April 2016 by NRAM as mortgagee for £1,020,000. The claimant says that this price was a significant undervalue. The claimant says that he had significant claims against two accountants who were former advisers, Thomas Westcott and Stephen Marlow. He sought the assignment to himself from his trustee in bankruptcy of those claims for a nominal amount. The defendant trustee in bankruptcy refused.
On 14 April 2015, the claimant thereupon made an application to the court under section 303 of the Insolvency Act 1986, for an order that the defendant should make that assignment. This application was listed before Judge Cotter QC on 29 May 2015 at Exeter. He transferred the matter to Bristol. On 24 November 2015 the application was listed before DJ Watkins, but because of a mixup the claimant was not present or represented, and the district judge dismissed the application. On 27 February 2016 the claimant made an application for disclosure. He also made an application for the order of DJ Watkins to be set aside. On 9 March 2016 DJ Watkins dismissed the application to set aside the order of 24 November 2015 and also the application for disclosure. I shall have to return to his judgment later.
On 23 March 2016 the claimant issued an application to set aside the order of 9 March 2016 for procedural irregularity, but on 29 March 2016 he also applied for permission to appeal that order. On 10 June 2016 DJ Cope decided that the only procedural route available to the claimant from the order of DJ Watkins of 9 March 2016 was by way of appeal, and not by way of applying to set aside. That appeal proceeded, and a number of procedural orders were made by HHJ McCahill QC in the course of it. On 4 November 2016 that judge handed down a lengthy and detailed judgment refusing permission to appeal against the orders of DJ Watkins dated 24 November 2015 and 9 March 2016.
The judgment of HHJ McCahill QC dated 4 November 2016 discussed in some detail the history of the litigation to date. In addition to refusing permission to appeal, it considered also in detail whether the judge should make a civil restraint order against the claimant. It concluded that he should not, as the relevant conditions were not satisfied. It then went on to say this:
“188. Nevertheless, I direct that any further or other application which Mr Reynard may wish to make arising out of or in connection with his Bankruptcy (including his bankrupt estate and/or Idehill Lodge and Golf Course and/or the two claims against his former accountants) must be made only in the Bristol Civil and Family Justice Centre and marked for the attention of District Judge Watson or District Judge Watkins. Any such application must have attached to it a copy of this judgment.”
The order that was made on the same day clearly refused permission to appeal to the claimant, and indeed recorded that his applications for permission were totally without merit and also directed that the claimant might not request a reconsideration of the applications at an oral hearing. It did not, however, make any such direction as is set out in paragraph 188 of the judgment.
The present claim
On 24 April 2017, the claimant issued the claim form in the present claim against the defendant, his former trustee in bankruptcy, for damages for breach of contract and negligence in relation to the conduct of the defendant as such trustee in bankruptcy. This claim form was issued at the CCMCC. It stated that particulars of claim were to follow. Those particulars were indeed filed and served, dated 22 August 2017. They made a number of complaints against the defendant to which I will return in due course.
On 31 August 2017 the defendant's solicitors, Clyde and Co, wrote to the CCMCC, with a copy to the Bristol Civil and Family Justice Centre. On 11 September 2017 a copy of the letter sent to Bristol was referred to the district judges, no doubt with the intention that it be seen by DJ Watkins or DJ Watson. In fact, on 18 September 2017, the letter was placed before DJ Rowe, who sensibly directed that it be referred to DJ Watkins or DJ Watson together with the file.
The applications
Meanwhile, on 20 September 2017 the defendant had followed up the letter of his solicitors of 31 August 2017 by issuing an application at the CCMCC for an order to strike out the claim under CPR r 3.4(2)(c) on the grounds that it had been issued in breach of an order of the court ( ie the direction of the court in paragraph 188 of the judgment of 4 November 2016), alternatively to transfer it to Bristol, and in the further alternatives that it be struck out under CPR r 3.4(2)(a), on the grounds that it disclosed no reasonable grounds for bringing the claim, or under CPR r 3.4(2)(b), on the grounds that it was an abuse of the court's process. This application notice was supported by a witness statement from the defendant's solicitor Simon Jackson, also dated 20 September 2017. It appears that this application was dealt with on the same day at the CCMCC by DDJ Josling, who transferred the matter to the County Court at Bristol for the attention of DJ Watkins or DJ Watson, with the usual liberty to apply to set aside the order within 7 days of receipt.
Because of a change of address by the claimant, it took a little longer for this order to reach him, but as soon as he received it he made an application dated 12 October 2017 for an order transferring the matter back to the CCMCC. In fact, because the claimant was unsure whether he had signed the application notice, he sent a second one the following day. Nothing turns on that.
That application was received by the court in Bristol on 20 October 2017. The same day, it was placed before HHJ Cotter QC, who directed that the application be listed before me (as the successor to HHJ McCahill QC) on the first available date. A notice of hearing was prepared and sent out the same day listing it for 2 PM on 4 December 2017. Unfortunately, the same application notice, or possibly the second version sent by the claimant, was placed before DDJ Ellery on 23 October 2017. On the same day she struck out the claim, presumably on the basis that (as alleged in the defendant's solicitors' letter of 31 August and the application of 20 September) the claim had been issued in breach of an order of the court. Whatever the grounds for the making of the order, it appears to have been made in ignorance of the existence of both the claimant's application notice of 12 October and the order of HHJ Cotter QC of 20 October.
On 3 November 2017 the file was placed before me, and for the first time I saw the inconsistent orders of HHJ Cotter QC and DDJ Ellery. Coincidentally, on the same day the claimant made an application by notice for the adjournment of the hearing on 4 December 2017. But I did not see that application until 29 November 2017, when I refused it, for the reasons which I then gave.
The hearing
At the hearing before me on 4 December 2017, the claimant appeared in person and the defendant was represented by Siward Atkins of counsel, instructed by Clyde and Co. I began by deciding how to approach the matters which were before me. There were two application notices. The first was that of 20 September 2017, issued by the defendant, seeking to strike out the claim, or alternatively to transfer it to Bristol. The second was that of 12 October 2017, issued by the claimant, the matter having by then been transferred to Bristol, seeking to transfer the matter back to the CCMCC. There were also the order of HHJ Cotter QC of 20 October 2017, directing the matter to be listed in front of me, and the order of DDJ Ellery, dated 23 October 2017 striking out the claim.
So that it is not forgotten, I mention that, in his supplementary skeleton argument of 4 January 2018, the claimant says that he has decided to issue a further application, for disclosure in support of his new claim. I make clear that that application is not before me at present, and I am not now adjudicating upon it. In the same skeleton argument, the claimant also asked, if the court was not with him, “for an adjournment in order to take the Court carefully through the documents, and to call a couple of witnesses.” The claimant needs to understand that that is not how the courts operate. A litigant does not have a first opportunity to convince a court and then, if he or she fails,...
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Christopher Paul Reynard v Nigel Fox
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