Ghassemian Hamila Sartipy (Aka Hamila Sartipy) v Tigris Industries Inc.
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lord Justice Bean |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWCA Civ 225 |
| Docket Number | Case No: A3/2018/0011 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 2019 |
[2019] EWCA Civ 225
Lord Justice Bean
Lord Justice Males
Case No: A3/2018/0011
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
BUSINESS LIST
MR JUSTICE HENRY CARR
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant attended in person
The Respondent was not represented
Hearing date Thursday 21st February 2019
Approved Judgment
Introduction
This is an appeal from the order of Henry Carr J made on 18 December 2017 which (1) set aside an order made by Garnham J dated 25 July 2017, (2) struck out the appellant's claim on the basis that the real claimant was her son who is subject to an extended civil restraint order (hereafter “ECRO”), (3) granted in the alternative summary judgment against the appellant on the basis that the claim had no real prospect of success, (4) certified that the claim was totally without merit and an abuse of process, and (5) made the appellant subject to an ECRO.
Permission to appeal to this court was sought on a number of grounds, but was granted by Newey LJ only on one narrow point. This was that the judge had no jurisdiction to impose an ECRO on the appellant because she, as distinct from her son, is not a party who has “persistently issued claims or made applications which are totally without merit”. It is said that the judge wrongly attributed to the appellant responsibility for applications which had been made by her son and not by her.
The appellant is Mrs Ghassemian Hamila Sartipy, also known as Mrs Hamila Sartipy. Her son is Mr Shahrooz Ghassemian, also known as Mr Shahrooz Langroody. For consistency I shall refer to them as Mrs Sartipy and Mr Langroody respectively. The respondent is Tigris Industries Inc (“Tigris”), the registered owner of a property at Earl's Court in London.
Mrs Sartipy was not legally represented below but the judge permitted Mr Langroody to make submissions on behalf of his mother. Tigris was represented by counsel and solicitors. On the appeal once again Mrs Sartipy was not legally represented but we permitted Mr Langroody to make submissions on her behalf. In addition we had the benefit of and have considered a skeleton argument and chronology prepared by counsel for Mrs Sartipy seeking permission to appeal. The respondent Tigris, which has apparently now received the money to which it is entitled, took no part in the appeal.
The Taylor v Lawrence application
At the hearing Mr Langroody sought permission pursuant to the Taylor v Lawrence jurisdiction [2002] EWCA Civ 90, [2003] QB 528 now set out in CPR 52.30 to reopen one of the grounds of appeal for which Newey LJ had refused permission. This was that Henry Carr J ought to have recused himself on the ground of bias. We permitted Mr Langroody to make this application orally, albeit that this was not in compliance with the procedure set out in CPR PD 52A, para 7. Once he had done so, we refused permission and indicated that we would give our reasons for this decision in writing.
It was Mrs Sartipy's case that Henry Carr J was biased against her and her son as a result of findings made by him in a judgment dated 3 March 2016 which had resulted in an ECRO being made against Mr Langroody. In that judgment the judge found that Mr Langroody had repeatedly attempted to mislead the court, had lied in his witness statement and had falsified documents to support his case. The judge referred this conduct to the Attorney General. We were told that the Attorney General referred it to the Crown Prosecution Service and that criminal proceedings against Mr Langroody are ongoing.
The question whether the judge should have recused himself was dealt with by Newey LJ in refusing permission to appeal on this point as follows:
“There is no question of his having been obliged to recuse himself. The order said to have been made by Proudman J on 19 May 2016, even supposing it to be genuine (which seems very doubtful), dealt only with case allocation and cannot of itself have precluded the judge from hearing the matter. Nor would a fair minded observer conclude that there was a real possibility of the judge being biased. To the contrary, this familiarity with litigation involving Mrs Sartipy and Mr [Langroody] was an advantage.”
I should explain that “the order said to have been made by Proudman J” was a reference to a document, apparently sealed by the court, which purported to be an order that “Any future matters relating to [Mr Langroody] or Mrs Sartipy including her claim issued today (HC-2016-001559) not be put before Mr Justice Henry Carr”. Like Newey LJ, I have grave doubts as to the genuineness of this order.
As CPR 52.30 makes clear, the jurisdiction to reopen the final determination of any appeal (which includes an application for permission to appeal) will not be exercised unless it is necessary to do so in order to avoid real injustice and the circumstances are exceptional and make it appropriate to do so. Those criteria do not come close to being satisfied in this case. No good reason was put forward to call Newey LJ's decision into question. I agree with his reasoning and conclusion on the point which I have set out above.
These were my reasons for refusing permission to reopen the refusal of permission to appeal on the bias issue. I turn therefore to the sole ground on which permission to appeal was given.
Background
The background to this appeal is somewhat tangled but much of it needs to be set out in order to explain how the issue arises. As Mrs Sartipy and Mr Langroody have been frequent visitors to the courts over a number of years, their story has often been told. I can adopt the account given by Lewison LJ in Tigris Industries Inc v Ghassemian (aka Ghassemian Hamila Sartipy) [2016] EWCA Civ 269:
“2. The extraordinary story in this case begins with a bogus claim to have acquired title by adverse possession of land registered in the name of Tigris Industries Inc supported by forged and fabricated documents. One of the claimants was [Mrs Sartipy] and another was her son, [Mr Langroody]. The deputy adjudicator found that Mr Langroody had ‘created an elaborate and false paper trail to support his case which … simply does not stand up to scrutiny’. The adjudicator awarded Tigris their costs and also ordered the payment of £60,000 on account. Neither [Mrs Sartipy] nor Mr Langroody complied with that order, so Tigris applied for a charging order over a flat registered in [Mrs Sartipy's] name. In fact, the name shown in the title register was ‘Ghassamian Hamila Sartipy’.
3. In December [2010] an interim charging order was made. The next step in the procedure is for an application to be made to make an interim order final. If [Mrs Sartipy] had no beneficial interest in the flat, that would have been a complete answer to the application to confirm the interim order. However, when the application came before Deputy Master Bard on 20 June 2011 the argument put before him was that [Mrs Sartipy] was not a party to the proceedings before the adjudicator and for that reason the charging order should not have been made.
4. As the Deputy Master put it, ‘the issue for today is whether the Hamila Ghassamian named in those proceedings is, or falls to be, treated as Hamila Sartipy, the defendant Tigris seeks to enforce against’. After hearing evidence of identification, he held that they were one and the same. No other reason was advanced for not making the charging order final. Mrs Sartipy … applied for permission to appeal … That application came before Spencer J on 16 September 2011.
5. The only point of any substance that was argued by leading counsel then appearing for Mrs Sartipy was that she should have been permitted to give evidence by way of video-link from Iran. In a comprehensive judgment, Spencer J refused permission to appeal. The next thing that happened was that Mrs Sartipy made an application to reopen the appeal under CPR Part 52.17. The grounds on which the application was made all concern the question of Mrs Sartipy's whereabouts at the time of the hearing before Deputy Master Bard. Not surprisingly, on 2 February 2012 Nicol J refused to reopen the appeal, so the final charging order stood.
6. While all this was going on, Tigris issued a Part 8 claim form seeking to enforce the charging order by an order for sale. That application came before Master Teverson in the Chancery Division. The claim was issued on 23 December 2011 and was listed for a disposal hearing on 21 March 2012. Five days before the due date for that hearing solicitors apparently acting for Mrs Sartipy sent Tigris what purported to be a copy of a declaration of trust in the flat by Mrs Sartipy in favour of her late husband and a copy of her husband's will. The former bore the date 13 June 1986 and the latter bore the date 8 March 2001.
7. Under the terms of the declaration of trust, Mr Ghassamian [i.e. the late husband] owned the entire beneficial interest in the flat to the exclusion of Mrs Sartipy. Under the terms of the will, the flat was left to Mr Ghassamian's executors and trustees on very wide discretionary trusts. The argument that Mrs Sartipy now wished to advance was that she had no beneficial interest in the flat and therefore the order for sale ought to be refused. Not surprisingly, one question that arose immediately was why this defence had not been raised before. Mrs Sartipy was ordered to make a witness statement to explain her position. She duly did so, but has steadfastly refused to submit herself for cross-examination.
8. The case for Tigris was that both the documents on which Mrs Sartipy relied were either forgeries or shams. Mrs Sartipy failed to attend the hearing and thus her evidence was...
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...submitted that I should find that the claim was totally without merit. This means, per Males LJ in Sartipy v Tigris Industries Inc [2019] 1 WLR 5892, [27]: “27. A claim or application is totally without merit if it is bound to fail in the sense that there is no rational basis on which it c......
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