Forresters Ketley v Brent and Another

JurisdictionEngland & Wales
JudgeLord Justice Lewison,Lord Justice Longmore
Judgment Date21 February 2012
Neutral Citation[2012] EWCA Civ 324
CourtCourt of Appeal (Civil Division)
Docket NumberCase No : A3/2011/0696 & (B)
Date21 February 2012
Forresters Ketley
Brent & Another

[2012] EWCA Civ 324


Lord Justice Longmore


Lord Justice Lewison

Case No : A3/2011/0696 & (B)





Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Brent appeared in person on the application for an adjournment.

The Respondents did not appear and were not represented.

Lord Justice Lewison

The background to this appeal goes back a long way. Forrester Ketley are a firm of patent agents who provided services for Mr Brent. When in 1993 they sued for their fees and expenses they were met by a defence and counterclaim. The resulting proceedings have lasted for over 18 years.


In the spring of 2005 this court made an extended civil restraint order against Mr Brent in the underlying proceedings. Various orders were made against Mr Brent requiring him to pay money. When he did not comply with those orders Forrester Ketley applied for a charging order over a residential property at 20 Chantry Close, Sunbury-on-Thames, Middlesex, TW16 7TH. This is a residential property in which Mr Brent was living together with a Ms Leonie Palette. Following the grant of an interim charging order a final charging order was made against Mr Brent on 8 January 2004. A second charging order was made on 6 June 2005.


On 12 July 2007 Forrester Ketley began proceedings under Part 8 of the CPR seeking an order for sale of the property under the charging order. Mr Brent defended those proceedings but Vos J gave judgment against him on 17 November 2009 when he made an order for sale. His order required Mr Brent to give possession of the property by 21 March 2010. Mr Brent did not give possession by that date or by the later date to which the deadline was extended. In November 2010 Mr Brent had still not vacated the property so Forrester Ketley came back to court. Vos J heard their application on 6 December 2010. Among the orders that he made on that occasion was a mandatory injunction requiring Mr Brent to vacate the property by 10.30 am on 20 January 2011. Mr Brent asked for permission to appeal against that order. His application for permission was not dealt with until 1 February 2011, by which time the deadline for vacating the property had passed but Mr Brent had still not complied with the order.


On 1 February 2011 Lloyd LJ considered Mr Brent's application for permission to appeal and dismissed it, adding that it was an application made totally without merit so there was no chance for Mr Brent to renew his application orally. As Morgan J said in the court below, that meant that the order of Vos J was now incapable of challenge.


In the meantime on 5 September 2007 Waller LJ sitting in the Court of Appeal made a further extended civil restraint order in the following terms :

"The defendant be restrained until 5 September 2009 or further Order from issuing claims or making applications or taking steps in any court without the permission of the court in any matter involving or relating to or touching upon or leading to the proceedings in which this order is made namely, the instructions of Messrs Forrester Ketley & Co to act on Mr Brent's behalf. Any applications for permission of the court to proceed must be made in writing to Mr Justice Morgan or to such judge as the Chancellor of the High Court may direct. Any refusal of permission to proceed shall be final and, subject to contrary order, there shall be no right of appeal."


On 31 July 2009 Morgan J of his own motion extended the civil restraint order until 5 September 2011. Although Waller LJ's order covered steps taken in any court, Morgan J's extension of that order was limited to steps taken in the High Court or any county court. The civil restraint order does not therefore impact on Mr Brent's appeal to this court.


Since Mr Brent had failed to comply with the order of Vos J requiring him to vacate the property, on 25 January 2011 Forrester Ketley applied for a committal order. Mr Brent was granted emergency legal aid for representation in connection with that application on 23 February 2011. The legal aid was to expire on 22 March 2011.


The solicitors instructed on Mr Brent's behalf were Duncan Lewis. The first scheduled hearing of the application for committal was adjourned by consent. Duncan Lewis corresponded by email with Shakespeare Putsman, Forrester Ketley's solicitors, over the days leading up to the adjourned hearing which had been fixed for 10 March. On 9 March 2011 Mr Brent sent, I think by email to the court, his tenth witness statement. In that witness statement he said he was too ill to attend the hearing because he was suffering from the symptoms associated with his stress-related heart condition. He also said that Duncan Lewis had informed him that they might not be able to represent him at the oral hearing, but that that would be confirmed by 10am on 10 March itself.


The adjourned hearing came before Morgan J on 10 March. On the morning of the hearing neither Mr Brent nor Duncan Lewis were present, although the emergency legal aid funding was still in force. Mr Brent faxed a sick note from his GP to the court and that was passed to Morgan J during the course of the hearing itself. Morgan J also considered a medical report on Mr Brent prepared by Dr Dymond following an examination of Mr Brent on 7 March. Dr Dymond had taken Mr Brent's full history, had examined a large quantity of medical data about him and had carried out his own examination. Dr Dymond's conclusion was that Mr Brent was medically and cardiologically fit to attend a hearing on 10 March and to give evidence. However, he qualified that by asking the courts to be sympathetic to the symptoms that Mr Brent experienced under stress. He said that they were not life-threatening but might be disabling and inhibit his ability to perform as required. Dr Dymond said that Mr Brent might require prolonged periods of rest, should be allowed to do breathing exercises and should be allowed to take his medication and to have frequent drinks of water. He also expressed the view that committal to prison would exacerbate Mr Brent's symptoms.


Morgan J first considered Mr Brent's application that he should recuse himself, which he refused. He went on to consider Mr Brent's application to adjourn, which he also refused. Following those two refusals he went on to find the contempt proved to the criminal standard of proof and proceeded to sentence. The only order under appeal in this appeal is the order of Morgan J dated 10 March 2011. By his order of that date Morgan J found that Mr Brent was in breach of the order requiring him to give possession of the property and also in breach of an injunction to the same effect. He was therefore in contempt of court. He made an order committing Mr Brent to prison for eight weeks but suspended the order so that it would not come into effect if Mr Brent vacated the property by 28 March 2011.


The period of suspension was subsequently extended to the 4 April 2011. Mr Brent did not vacate the property by the deadline set by the order although he has now done so. However, even though the period of suspension expired without Mr Brent having left the property, I understand that he did not in fact serve any part of the prison sentence imposed upon him.


Mr Brent now appeals against the committal order made by Morgan J on 10 March 2011.


A theme that runs throughout Mr Brent's lengthy written submissions in support of his appeal is that decisions had been made in the underlying proceedings that infringe his human rights. He wishes to bring proceedings to vindicate those rights. His chosen vehicle for the proceedings is section 7 of the Human Rights Act 1998. That says:

"(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2)In subsection (1)(a) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding…"


Section 6 (3) says that the court is a public authority for this purpose. So far so good. However, the obstacle in Mr Brent's way is Section 9 of the Human Rights Act, which says :

"(1)Proceedings under section 7(1)(a) in respect of a judicial act may be brought only—

(a)by exercising a right of appeal;

(b)on an application (in Scotland a petition) for judicial review; or

(c)in such other forum as may be prescribed by rules.

(2)That does not affect any rule of law which prevents a court from being the subject of judicial review.

(3)In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

(4)An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined."


It follows therefore that the principal way in which Mr Brent can complain about breaches by the courts of his human rights is by exercising a right of appeal, but the right of appeal is not an unfettered right. It is limited by CPR 52.3, which says that an appellant needs permission to appeal against a decision of a...

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