Ivan Kaye v Amanda Lees
| Jurisdiction | England & Wales |
| Judge | Dight CBE |
| Judgment Date | 27 January 2023 |
| Neutral Citation | [2023] EWHC 152 (KB) |
| Docket Number | Case No: KB-2022-002296 |
| Court | King's Bench Division |
[2023] EWHC 152 (KB)
HIS HONOUR JUDGE Dight CBE
Case No: KB-2022-002296
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Kerry Bretheron KC and Philip Judd (instructed by Perrin Myddelton) for the Claimant
No appearance by or on behalf of the Defendant
Hearing dates: 23 January 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HON JUDGE Dight CBE
His Hon Judge
Introduction
These are the reasons for the decision which I announced yesterday afternoon.
Mr Kaye has an unpaid judgment against Ms Lees for a significant sum of money, exceeding £300,000, (“the Judgment Debt”) arising from decisions made by His Hon Judge Roberts, following trial, in two judgments handed down on 30 July 2018 and 2 January 2019 which dealt with liability and quantum of damages respectively. Those damages resulted from what HHJ Roberts found to be nuisance and harassment caused by Ms Lees to Mr Kaye during the time that she had been his neighbour in adjacent flats in the same building. As a consequence Mr Kaye was granted a final charging order over Ms Lees' lease (“the Lease”) of the Ground Floor Maisonette, 8 Leysfield Road, London W12 (“the Flat”). An order for sale was made on 6 March 2020, pursuant to which Mr Kaye purported to sell Ms Lees' leasehold interest to a Ms Dixon in March 2022 for £505,000. Mr Kaye used part of those proceeds of sale (£188,963.90) to discharge Ms Lees' mortgage over her lease of the Flat in favour of Santander. As a result of the same order Ms Lees was evicted from the Flat and Ms Dixon went into occupation.
However, Ms Lees had been subject to a breathing space moratorium. She had been granted a series of four mental health crisis moratoria made under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (“the Regulations”) as a result of which I held, in a judgment which I handed down on 13 May 2022 ( Lees v Kaye [2022] EWHC 1151 (QB)) (“the May judgment”), that the sale to Ms Dixon and the eviction of Ms Lees from the Flat was null and void. For the detailed background to this litigation I refer to the May judgment. Here I will use the same abbreviations as I used in the May judgment.
Laing LJ subsequently refused permission to appeal to the Court of Appeal against the May judgment.
In a judgment which he handed down on 21 December 2022 ( [2022] EWHC 3326 (KB)) (“the December judgment”) Swift J dismissed an application by Mr Kaye to set aside the moratorium which was in place at that time. Swift J also held that the effect of the discharge of the mortgage by Mr Kaye, in light of the May judgment, had been to subrogate Mr Kaye to the rights and liabilities of Santander as creditor of Ms Lees and mortgagee of the Lease. That means, in my view, that the liability of Ms Lees to Mr Kaye, after taking account of various costs orders going both ways, now stands in the order of £500,000, although I do not know the precise figure. Part of that liability is secured by the charging order which was made against the Lease of the Flat, which would remain in place following the May judgment, and part of it is secured by way of subrogation to the Santander charge over the Lease.
In the interim Ms Lees' solicitors had sent a letter before action dated 31 August 2022 to Mr Kaye's solicitors indicating that they had instructions to commence proceedings against him without further notice for breach of statutory duty and trespass for which Ms Lees would seek damages, including aggravated and exemplary damages. As I understand it no such claim has yet been brought. There is no suggestion that Ms Lees was not in a position to give instructions to her solicitors to litigate on her behalf and commence fresh proceedings.
The event which gave rise to the current application was that Ms Lees had been granted a further Mental Health Crisis Moratorium which commenced on 8 November 2022 (“the Current Moratorium”).
The Application
On 21 November 2022 Mr Kaye, through his solicitors, issued a further application (“the Application”) to cancel the Current Moratorium pursuant to Regulation 19 on the grounds that (1) Mr Kaye's interests as a judgment creditor are unfairly prejudiced by the moratorium and (2) there has been a material irregularity in that Ms Lees did not meet the relevant eligibility criteria when the application for the Current Moratorium was made (Reg 17(2)) and that the application was not made bona fide.
By his application notice Mr Kaye also seeks an order that Ms Lees be forbidden for a period of 60 days from applying for any further moratorium so as to prevent him from enforcing the Judgment Debt. During the course of her submissions Ms Bretherton KC refined this request for injunctive relief.
The Application had been listed for hearing on 9 December 2022 but the parties were awaiting the outcome of the hearing which had taken place before Swift J. Bearing in mind that, among other things, Mr Kaye had asked the court to cancel the mental health crisis moratorium which was then in place the parties sensibly agreed that the hearing of the Application be deferred until the outcome of that hearing was known. In a consent order approved by Freedman J on 7 November 2022 Ms Lees agreed to a direction that she should:
“(2)…file and serve evidence upon which she intends to rely, including evidence of her mental health crisis treatment upon which the debt advice provider submitted the application for the Moratorium [made on 8 November 2022], to include ongoing evidence as to duration, severity, prognosis and timescale for improvement, by 4pm on the day 14 days after Mr Justice Swift hands down judgment…”
The order went on to make provision for Mr Kaye to file evidence in reply and then, by agreement, for the Application to be relisted on an expedited basis. I observe in passing that this matter had obviously become urgent and that the parties were right to seek expedition even though more recently Ms Lees has sought to argue that it is not urgent and should be dealt with at a later date.
Swift J handed down judgment on 21 December 2022 which meant that Ms Lees' evidence was to be filed by 4pm on 4 January 2023. The order of 7 November 2022, properly construed, required her to file existing material (ie what had been before the debt advice provider at the time that the application for the mental health crisis moratorium had been made on 8 November 2022) as well as material as to the future (dealing with the duration, severity, prognosis and timescale for improvement of Ms Lees' mental health condition) which may or may not have been in existence at the date of the order approved by Freedman J but the collation of which need not have awaited the outcome of the hearing before Swift J. Nevertheless no evidence (either as to the past or as to the future) was filed by or on behalf Ms Lees by the deadline in paragraph 2 of the order or subsequently. At the date of the deadline itself Ms Lees' solicitors, who had been publicly funded, came off the record.
An adjournment
Ms Lees has throughout the proceedings in the High Court been represented by solicitors and counsel, including leading counsel, until her solicitors ceased to act for her and came off the record on 4 January 2023. By an application notice dated 12 January 2023, supported by a well drafted witness statement of the same date, Ms Lees, by then acting in person, sought an adjournment (on paper) of the hearing of the Application which had been listed for 24 January 2023. By an order dated 16 January 2023 Cavanagh J refused the application giving detailed reasons for doing so and setting out the matters on which Ms Lees had failed on paper to satisfy him. He left the door open to renewal of the request to adjourn before the judge who was to hear the Application. On the day before the Application came before me Ms Lees applied again (by an application notice and equally well drafted witness statement dated 23 January 2023) to adjourn the hearing for a period of three months to enable her to find new legal representation and to obtain the evidence which had been directed to be filed by Freedman J's order. She also filed a bundle of approximately 1,000 pages. Despite taking these substantial steps in respect of the Application Ms Lees did not appear when the Application was called on for hearing and indicated in a telephone call then made by the Associate to establish her whereabouts that she did not intend to attend because of, inter alia, her mental health moratorium. Having heard leading counsel for Mr Kaye I formed the view that Ms Lees had not by her more recent application and evidence filled the gaps which had been identified in the reasons given by Cavanagh J for refusing her application and had not satisfied me on the basis of the material filed on 23 January that I should adjourn the Application. I gave detailed reasons for dismissing her most recent request to adjourn in an ex tempore judgment before turning to the Application.
I should add that in considering the Application I have born in mind the evidence and submissions (in her communications to the court) filed by Ms Lees.
The moratoria and reviews
In total there have been four mental health crisis moratoria as well as one breathing space moratorium, as follows;
i) on 30 June 2021 the Applicant was granted a breathing space moratorium for the period 1 July 2021 to 29 August 2021. The eviction which had been due to take place on 8 July 2021 did not go ahead;
ii) shortly afterwards Mr Darren Caisley, a Mental Health and Money...
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