David John Frosdick v The Official Receiver
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1262 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB 2018 004142 |
[2023] EWHC 1262 (KB)
Mrs Justice Hill
Case No: QB 2018 004142
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Applicant appeared in person
The Respondent did not appear and was not represented
Hearing date: 4 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By an application notice dated 15 November 2022, supported by a witness statement of the same date, the Applicant David Frosdick seeks to set aside an Extended Civil Restraint Order (“ECRO”) made by Martin Spencer J on 17 June 2022, under paragraph 8(1) of that order.
Mr Frosdick provided a skeleton argument, a further witness statement dated 6 January 2023 and a bundle of documents. The Official Receiver (“OR”) provided a witness statement from Antony Nwanodi, employed barrister and senior lawyer within the Government Legal Service (“GLD”) filed on 19 January 2023 and a brief email to the court dated 2 May 2023.
The material provided by the OR included the judgment of Foskett J dated 6 July 2018 at [2018] EWHC 1714 (QB). That refers back to the earlier judgments of Birss J (as he then was) dated 11 July 2017 at [2017] EWHC 1737 (Ch) and Andrew Hochhauser KC, sitting as a Deputy High Court Judge, dated 23 November 2016 at [2016] EWHC 3008 (Ch), all of which I have considered.
Mr Frosdick represented himself at the hearing before me on 4 May 2023. His submissions were courteous and helpful and assisted in clarifying the key issues he sought to raise. Both Mr Frosdick and the OR made provided various further documents after the hearing.
The factual background
Mr Frosdick's bankruptcy
The matter has a lengthy history, helpfully set out in the three judgments to which I have referred at [3] above. I am indebted to them for the detail of it and I summarise it as follows.
In August 2007 Mr Frosdick suffered personal injuries in a car accident. He instructed a firm of solicitors, Cobbetts LLP (“Cobbetts”), to pursue a personal injuries claim with the assistance of a Conditional Fee Agreement or (“CFA”). At some stage prior to June 2009, Cobbetts terminated the CFA and told Mr Frosdick that they would no longer handle his claim.
Mr Frosdick alleged professional negligence against Cobbetts. At Foskett J explained at [7], Mr Frosdick:
“…wanted to pursue as part of his personal injuries claim a claim for €782,000 by way of loss of profits arising from contracts for the provision of poker software that he had made with two gaming institutions, each of which had to be cancelled because of his injuries. He also wanted to claim a further €17 million or thereabouts reflecting what he said was the value of the loss of a chance of earning profits from those contracts”.
Birss J at [10] described Mr Frosdick's complaint against Cobbetts as relating to their failure to issue a protective claim in relation to these losses. In a recent letter of claim dated 21 March 2023 (see [51] below) the allegation of negligence against Cobbetts is described more broadly, as their termination of the CFA without conducting the work specified within it and without providing proper grounds for doing so.
It appears that a dispute arose between Mr Frosdick and Cobbetts over £13,389.52 in unpaid fees. On 18 April 2011 Cobbetts presented a bankruptcy petition against Mr him. According to the OR, there were other creditors of Mr Frosdick who made claims in the bankruptcy.
The bankruptcy hearing was listed at Coventry County Court on 25 May 2011. Mr Frosdick took me to a copy of a statement he had signed on 20 May 2011. This indicated that he had been hospitalised from 7 to 13 May 2011. The statement referred to medical evidence from Dr Adrian Stanley, Consultant Physician in Cardiovascular Medicine, suggesting it would be wise to adjourn the upcoming hearing on grounds of Mr Frosdick's ill-health. Mr Frosdick told me that he handed this statement into the County Court before the hearing but that his request to adjourn was refused. The hearing proceeded in his absence before District Judge Sanghera, who made the bankruptcy order against Mr Frosdick.
Under the Insolvency Act 1986 (“the 1986 Act”), section 306(1) Mr Frosdick's estate automatically vested in the OR, who had stated on 14 July 2011 that he was acting as Trustee in bankruptcy.
The Trustee's disclaimer of the right to sue Cobbetts
On 18 August 2011 Mr Frosdick wrote a four-page letter to the OR. This asked the OR to litigate or assign back to him the cause of action he had against Cobbetts for professional negligence. The letter made a suggestion that £75,000 in third party funds was being made available to the OR in order to purchase from the OR the ability to sue Cobbetts.
On 25 August 2011 Mr Frosdick issued a claim against Cobbetts in the County Court. On 21 December 2011 Coventry County Court dismissed this claim. It appears likely that this was because Mr Frosdick had by then been declared bankrupt.
On 15 September 2011 the OR appointed Nigel Fox, an insolvency practitioner, as the Trustee in bankruptcy with effect from 20 September 2011. On 11 October 2011 Mr Frosdick was informed of this appointment.
According to [17] of Birss J's judgment, on 9 January 2012, Mr Frosdick wrote to Mr Fox seeking to acquire the alleged cause of action against Cobbetts in exchange for “substantial third-party funds”. I have not seen that letter but I have been provided with a letter in similar terms to the OR dated 10 January 2012.
On 18 May 2012 the Trustee signed a Notice of Disclaimer relating to “any rights of action and claims against Cobbetts for defamation and/or any other matter”. Birss J noted at [17] that the reason for the reference to defamation was that Mr Frosdick had included defamation as one of the causes of action he wished to bring against Cobbetts.
On 25 May 2012 Mr Frosdick's bankruptcy was automatically discharged.
County Court applications by Mr Frosdick from 2012–2016 and the first ECRO
Over the next few months, he made several applications to the Coventry County Court to set aside the bankruptcy order. All those applications were dismissed. These included orders made by HHJ Cooke on 29 May 2012 and HHJ Barker QC on 29 October 2012. In his reasons for dismissing Mr Frosdick's application, HHJ Barker QC stated that “if anything”, his complaint was “about the disclaimer of a potential cause of action against [Cobbetts] by [Mr Frosdick's] Trustee [Mr Fox]”. As Birss J explained at [18], Mr Frosdick's complaint was that the cause of action was “worth a very substantial amount of money” and “was a claim against the petitioning creditor who put the bankruptcy proceedings in train in the first place”.
Mr Frosdick intimated a potential claim against the OR. On 18 February 2013, the OR asked Mr Frosdick to set out what cause of action he was referring to and why he considered that the OR should be a Defendant to any claim he might bring. Mr Frosdick does not appear to have responded to that letter.
In July and August 2015, Mr Frosdick issued three further applications in the Coventry County Court, at least two of which were made against Mr Fox. On 26 August 2015, HHJ Gregory dismissed two applications dated 10 and 21 August 2015 as totally without merit and noted that on 29 July 2015 an application made by Mr Frosdick had also been dismissed as totally without merit.
On 26 August 2015 HHJ Gregory also made an ECRO against Mr Frosdick, the effect of which was to restrain him from issuing claims or making applications in any County Court concerning any matter involving or relating to or touching upon or leading to the proceedings in which the ECRO was made, without first obtaining the permission of a Circuit Judge.
Notwithstanding the ECRO, on 21 September 2015 Mr Frosdick sought to issue proceedings against Mr Fox in the Coventry County Court. It appears that HHJ Gregory refused permission to bring that claim twice, on 6 October 2015 and 2 February 2016.
On 18 March 2016, Mr Frosdick sent a letter before claim to the OR. There was further correspondence from Mr Frosdick to the OR in March 2016.
Mr Frosdick made a further application to issue proceedings in the Coventry County Court, which HHJ Gregory again refused on 31 March 2016.
Frosdick v Secretary of State for Business, Energy and Industrial Strategy and others [2016] EWHC 3008 (Ch) (Andrew Hochhauser KC, sitting as a Deputy High Court Judge, 25 November 2016)
On 18 May 2016 Mr Frosdick brought a claim against the OR in the High Court. Although he was still subject to HHJ Gregory's ECRO this did not apply to the High Court. This was the claim that came before Mr Hochhauser KC, the OR having applied to strike it out. At [21] of his judgment, Mr Hochhauser KC described it as “strikingly similar” to the one Mr Frosdick had issued on 21 September 2015 against Mr Fox, which he had been refused permission to proceed with.
From [30]–[46] of Mr Hochhauser KC's judgment it is apparent that Mr Frosdick's claim comprised allegations that the OR had breached sections 289(3), 287 and 315–316 of the 1986 Act; had breached a duty of candour; had acted negligently; had breached his rights derived from Articles 1 and 6 of the European Convention on Human Rights, had breached the best practice guidance in the technical manual issued to Insolvency Service staff; and had committed the tort of misfeasance in a public office.
For the detailed reasons given in his judgment Mr Hochhauser KC struck out all Mr Frosdick's claims under the CPR 3.4(2)(a) and (b), on the...
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