Dharam Prakash Gopee v The Crown Court at Southwark
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lady Justice Nicola Davies,Lord Justice Birss |
| Judgment Date | 25 July 2023 |
| Neutral Citation | [2023] EWCA Civ 881 |
| Year | 2023 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000325 and CA-2021-003325 |
and
[2023] EWCA Civ 881
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lady Justice Nicola Davies
and
Lord Justice Birss
Case No: CA-2021-000325 and CA-2021-003325
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Supperstone and Mr Justice Swift
Royal Courts of Justice
Strand, London, WC2A 2LL
Dharam Prakash Gopee appeared in person (Mr Gopee)
The respondent did not appear and was not represented (Southwark Crown Court)
Martin Evans KC and Craig Ulyatt (instructed by Legal Group Enforcement & Market Oversight, HMCTS Customer Investigation Team) for the Interested Party (the FCA)
Hearing date: 12 July 2023
Sir Geoffrey Vos, Master of the Rolls, Lady Justice Nicola Davies, and
Introduction
The main question in this appeal is whether and in what circumstances a civil restraint order (CRO) can be made or set aside without a hearing.
Mr Gopee is appealing two orders. The first is a general civil restraint order (the GCRO) made by Supperstone J on 1 October 2019 without notice to Mr Gopee. The second is the order of Swift J made on paper on 28 January 2019, refusing Mr Gopee's application to set aside the GCRO Order (the set aside Order) (together “the two orders”).
Mr Gopee submitted that the GCRO ought not to have been made without notice and without an oral hearing, and that the set aside order ought not to have been made without a hearing and without any notice to Mr Gopee of the matters that might be relied on. Warby LJ granted Mr Gopee permission to appeal on these points only. One of Mr Gopee's main points before us, however, was that the GCRO was wrongly made on the basis of certain written materials that have never, even now, been supplied to him.
The FCA submitted that there is no requirement that there be an oral hearing of either an application for a GCRO or of an application to set a GCRO aside. The materials not shown to Mr Gopee were internal court summaries of the case and were not significant to the outcome. Accordingly, the two orders were properly made.
We have decided that the two orders were indeed properly made for the reasons we shall now give. We will first set out the essential factual background including the relevant terms of the two orders, then we will deal with Civil Restraint Orders and the parties' main submissions, before giving the reasons for our decision, and considering whether a fresh GCRO ought to be made against Mr Gopee.
The factual background
For many years, Mr Gopee has been involved in litigation arising from his money-lending activity. He often lends to extremely vulnerable people, secured by charges on the property of the borrowers. There were over 1,000 such charges. He would use the civil courts to obtain possession of the properties and then rent them back to the borrowers. There were over 400 such properties. Mr Gopee conducted this business through a variety of companies. Although one company held a consumer credit licence until it lapsed due to regulatory action by the Office of Fair Trading (in 2012), none of the others did. The loans were almost invariably made by companies which did not hold a licence. As a result the loans and charges were unenforceable. Mr Gopee has repeatedly argued that these companies were acting as agents for the licensed company, but that argument has been rejected. The pattern of applications by Mr Gopee and the companies that he controls has been held to demonstrate “a determination to misuse the court's processes by seeking repeatedly to advance similar arguments in different guises” ( R v. Gopee [2022] EWCA Crim 955, Johnson J at [20]).
In 2015, the FCA obtained a restraint order under section 41 of the Proceeds of Crime Act 2002 against Mr Gopee and various companies under his control, preventing disposal of their assets. The FCA subsequently commenced committal proceedings against him for breach of the order. On 11 April 2016 HHJ Gledhill QC found Mr Gopee in contempt and sentenced him to 18 months' imprisonment.
In the course of the proceedings before Judge Gledhill, a victim surcharge fee of £100 (the VSF) was imposed on Mr Gopee and bailiffs attended his home to enforce it and the ancillary costs. The bailiffs were paid by Mr Gopee's son. In November 2017, Mr Gopee brought judicial review proceedings against Southwark Crown Court seeking to quash the VSF. Southwark Crown Court took no part, and the FCA was ordered to be joined as an interested party. The FCA later conceded in writing that the VSF should not have been imposed but also submitted that the judicial review should be dismissed as an alternative remedy existed, namely an appeal to the Court of Appeal (Criminal Division) (the CACD). The matter came on to be heard in the Divisional Court before Haddon-Cave LJ and William Davis J on 24 January 2019.
In the meantime, in early 2018, the FCA had prosecuted Mr Gopee for unlicensed/unauthorised trading, and he was convicted of 4 charges. On 9 February 2018, Mr Gopee was sentenced by HHJ Beddoe to 42 months' imprisonment. A Serious Crime Prevention Order was made against him. His appeal against conviction and sentence was dismissed: R v. Gopee [2019] EWCA Crim 601. It appears that between 2015 and 2019 Mr Gopee sought to commence at least 12 judicial review claims, and also repeatedly sought to intervene in claims brought by consumers to escape from his unenforceable loans.
At the 24 January 2019 hearing in the Divisional Court, the court reconstituted itself as the CACD, quashed the VSF and directed that the VSF and costs (£410) be paid back to Mr Gopee (the CACD's order). Counsel for the FCA submitted that the court should consider making a GCRO against Mr Gopee. The CACD's order included the following:
7. The following documents are to be referred to the Judge-in-charge of the Administrative list, the Hon. Mr Justice Supperstone, to consider whether [Mr Gopee] should show cause as to why a General Civil Restraint Order or other Restraint Order should not be issued against him:
i. A transcript of the judgment of the Court today;
ii. The case summaries prepared by the Administrative Court office and the Court of Appeal office;
iii. The FCA's letter to the Court dated 20 December 2018;
iv. The relevant papers in this case and [Mr Gopee's] extant judicial review claims. [Emphasis added].
Haddon-Cave LJ said this at [13]–[14] (and William Davis J agreed):
13. Finally, we turn to the broader aspects of this case. As we said in opening, Mr Gopee has become a serial litigator. Since his incarceration in prison in the last few years, and now during his current lengthy sentence, it appears that Mr Gopee has occupied himself in his cell by issuing as many sets of legal proceedings as possible, most of these being directed to what appears to be something of a vendetta against the FCA. This must stop. In these circumstances, we order that a transcript of these remarks, together with the Administrative Office and the helpful Court of Appeal Office summaries, and the FCA summary letter of 20 December 2018, together with the relevant papers, are referred to the judge in charge of the Administrative Court, Supperstone J, to consider whether Mr Gopee should show cause why a General Restraint Order should not be issued against him, the purpose being to stop Mr Gopee further wasting the Court's time, the FCA's time and his own time, which might more fruitfully be used in rehabilitation in prison. Accordingly, we so order. [Emphasis added].
14. Let me add this before I invite Davis J to give his judgment. We would give this advice and warning to Mr Gopee. Mr Gopee, if the Administrative Court does decide to issue a GRO against you and you choose to ignore that order, as you appear to have ignored previous restraint orders in the past, you could find yourself in serious trouble again.
Mr Gopee contended, as we have said, that he was never provided with “[t]he case summaries prepared by the Administrative Court office and the Court of Appeal office” referred to in [7(iii)] of the CACD's order and considered by Supperstone J when he made the GRCO against him.
Supperstone J made the GCRO on 1 October 2019 without notice to Mr Gopee. It was not a direction requiring Mr Gopee to show cause why a GCRO should not be made. The recitals to the GCRO recorded that Supperstone J had perused the case file regarding the judicial review claim against the VSF, considered the CACD's order of 24 January 2019, an order refusing Mr Gopee permission to appeal to the Supreme Court, the transcript of the Divisional Court's judgment of 24 January 2019, and had regard to Mr Gopee's “history of unmeritorious applications”. The final recital provided that it appeared to the court that “unless restrained Mr Gopee is likely to issue further applications and/or appeals which are without merit”.
The GCRO also contained two further distinct provisions relevant to this appeal. First, at [4], the order contained a provision about applications to amend, discharge or vary of the order. Such an application first needed permission of Supperstone J and then would be dealt with in writing by the current lead judge of the Administrative Court. Secondly, [8] of the GCRO contained exceptions to the requirement for prior permission, in these terms:
8. THIS ORDER does NOT prevent you [Mr Gopee] from taking any one or more of the steps set out below without the prior permission of Mr Justice Supperstone or the then current lead judge of the Administrative Court. YOU MAY:
(i) Apply, without obtaining prior permission, to set aside all or any part of this Order. Any such application should be made to the...
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