Max Couper and Another v Albion Properties Ltd and Others Magdalena Couper (Intervener) Nicholas Todd (High Court Enforcement Officer)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 16 January 2017 |
| Neutral Citation | [2017] EWHC 22 (Ch) |
| Docket Number | Case Nos: HC06C04432, CH/2015/0025 |
| Court | Chancery Division |
| Date | 16 January 2017 |
[2017] EWHC 22 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case Nos: HC06C04432, CH/2015/0025
and
and
Andrew Burr (instructed by the Bar Pro Bono Unit) for the First Claimant
Joseph Ollech (instructed by Joanne Dowson) for the Second Defendant and the High Court Enforcement Officer
The Second Claimants, the First and Third Defendants and the Intervener did not appear and were not represented
Hearing date: 14 December 2016
Contents
| Topic | Paras |
| Introduction | 1–3 |
| Events since the Main Judgment | 4–68 |
| Mr Couper's appeal against Master Teverson's order dated 3 December 2014 | 69–79 |
| Mr Couper's application dated 26 March 2015 | 80–82 |
| Mr Couper's application dated 1 May 2015 | 83–84 |
| Mr Couper's application dated 5 June 2015 | 85–86 |
| Mr Couper's application dated 25 October 2016 | 87 |
| Mr Couper's application dated 21 November 2016 | 88 |
| The PLA and the HCEO's application apart from for an ECRO | 89 |
| The PLA and the HCEO's application for an ECRO | 90–100 |
Introduction
As long ago as 8 October 2013, I handed down judgment in this matter ( [2013] EWHC 2993 (Ch), "the Main Judgment") following a three week trial in June and July 2013. As explained in the Main Judgment, the trial was the culmination of proceedings commenced as long ago as 2006 in relation to disputes which commenced as long ago as 1998. At the end of the Main Judgment, I said: "This saga must now come to an end". It is a matter of considerable surprise, and even more regret, to find that the saga is still ongoing more than three years later. In this judgment I shall assume that the reader is familiar with the Main Judgment and I shall use the same nomenclature and abbreviations.
For the reasons given in the Main Judgment, I dismissed all the Claimants' claims and held that APL and the PLA were entitled to the declarations sought by their respective counterclaims. On 29 November 2013 I made an order to give effect to those conclusions ("the Main Order"). Paragraph 7 of the Main Order required the Claimants in effect to vacate HWPL's land by 10 January 2014, save that the order did not apply to the Hope until the determination of an application by the Intervenor, Mrs Couper (as to which, see below). Paragraph 10 of the Main Order required the Claimants to vacate the PLA's land by 10 January 2014.
I now have before me a number of applications by Mr Couper and an application by the PLA concerning the enforcement of paragraph 10 of the Main Order. The PLA's application also seeks an extended civil restraint order against both Mr and Mrs Couper. Although Mrs Couper was served with the application, she did not serve evidence in answer to it or appear to resist it. In those circumstances I shall proceed on that basis that she has no separate basis for resisting the application to Mr Couper.
Events since the Main Judgment
On 29 October 2013 Mr Couper and the Trustees filed an appellant's notice seeking permission to appeal against the Main Judgment (strictly, the order which was to be made consequential upon the Main Judgment).
On 29 November 2013 there was a hearing before me as to the form of order which should be made consequential upon the Main Judgment. At the hearing, there was an oral application by Mrs Couper that she be joined as a party to the proceedings to assert her and her daughter's rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I directed that Mrs Couper's application be adjourned to be heard in the week commencing 6 January 2014 and that she should file any evidence she wished to rely on by 13 December 2013.
In the Main Order I ordered the Claimants to pay the Defendants' costs of the claims and counterclaims to be assessed on the indemnity basis. An after the event insurance policy for the sum of £550,000 arranged by the Trustees paid about half of these costs, but the other half remains outstanding.
On 13 December 2013 Mrs Couper filed a witness statement which was partly in support of her application and partly seeking more time in which to deal with the application.
On 31 December 2013 Mrs Couper made a without notice application to the vacation judge for an adjournment of the hearing of her application which had been fixed for 7 January 2014. David Richards J (as he then was) refused to make an order without notice, and directed that any application be made on notice at the hearing before me.
On 7 January 2014 I dismissed a further application by Mrs Couper for an adjournment and proceeded to dismiss her application to be joined to the proceedings for the reasons given in my judgment of that date ( [2014] EWHC 265 (Ch)). Accordingly, I ordered that paragraph 7 of the Main Order should have effect in relation to the Hope.
On 9 January 2014 Lewison LJ granted Mr Couper and the Trustees a stay of execution of the Main Order until the determination of their application for permission to appeal, and directed an oral hearing of that application. That was subsequently fixed for 3 March 2014.
On 24 or 27 January 2014 Mrs Couper filed an appellant's notice seeking permission to appeal against my order of 7 January 2014.
Mr Couper has exhibited to one of his witness statements an advice obtained by an organisation called Charles Henry from Michael Shrimpton of counsel dated 17 February 2014 and an advice obtained by the Bar Pro Bono Unit from Jan Luba QC (as he then was) dated 19 February 2014, both of which concerned the merits of Mrs Couper's appeal against the order dated 7 January 2014. Although both the advices were prepared for the purposes of an application by Mrs Couper for legal aid, it is not clear to me that any application was made. If one was made, it does not appear to have been granted.
On 3 March 2014 Lewison LJ refused Mr Couper and the Trustees permission to appeal against the Main Judgment at the oral hearing of their application. He also discharged the stay granted on 9 January 2014 save that the stay of paragraphs 7 and 10 was continued until 1 April 2014.
On 28 March 2014 the Trustees applied for a stay of execution of the Main Order, but on 17 June 2014 the Trustees requested dismissal of this application and 27 June 2014 Deputy Master Meacher duly dismissed it. Since then, the Trustees have co-operated with the PLA in its efforts to enforce the Main Order and have dissociated themselves from Mr Couper's efforts to frustrate enforcement.
On 30 June 2014 Vos LJ refused Mrs Couper permission to appeal against the order dated 7 January 2014 on paper, holding that the appeal had no real prospect of success.
On 14 September 2014 the PLA appointed Nicholas Todd of Burlington Credit Ltd as High Court Enforcement Officer ("the HCEO") to enforce the Main Order. On 17 September 2014 a writ of possession was issued on the PLA's application. (A total of four writs of control have also been issued by way of enforcement of costs orders made in favour of APL, HWPL and the APL, but I shall largely ignore these for the purposes of this judgment.)
On 30 September 2014 the HCEO took possession of the barges. The HCEO's evidence is that, at that time, Mr Couper and his family were not residing on any of the barges, but rather at an address in Prince of Wales Drive, London SW11 4SA. The HCEO's agent Jonathan Chatfield met Mr Couper that day and offered to collect any items from the barges Mr Couper needed for his immediate legal, medical or personal needs, and Mr Couper went on board and removed a few items.
It should be noted that, as at that date, Mr Couper had not cleared the barges of their contents, despite the fact that over six months had elapsed since the expiry of the stay of paragraphs 7 and 10 of the Main Order and nearly ten months had elapsed since the making of the Main Order. It should also be noted, after 30 September 2014, the HCEO offered Mr Couper access to the barges upon notice, albeit only under supervision. On 16 November 2014 Mr Couper attended with a friend and removed four bags and boxes.
On 14 October 2014 the HCEO applied to the Master for sanction of various proposed enforcement steps. The application was listed before Master Teverson on 21 October 2014.
On 20 October 2014 an application was issued by Mr Couper in the name of Mr and Mrs Couper's daughter Massimiliana ("Miss Couper") for an adjournment of the HCEO's application to "bring a claim under Article 8" and for a litigation friend to be appointed. This application was also listed before Master Teverson on 21 October 2014.
On 21 October 2014 Master Teverson dismissed Miss Couper's application for the reasons given in his judgment of that date ( [2014] EWHC 4721 (Ch)), and adjourned the HCEO's application to 4 November 2014 with directions for the service of evidence in the meantime.
Also on 21 October 2014 Mrs Couper filed an application to the Court of Appeal for an extension of time for seeking an oral hearing of her application for permission to appeal following Vos LJ's refusal on paper. On 23 October 2014 an application was filed by Mr Couper in the name of Miss Couper for her to be joined to Mrs Couper's application and to have a litigation friend appointed.
By an application dated 23 October 2014 (sealed 28 October 2014) Mrs Couper applied to the Court of Appeal for a stay of execution.
On 28 October 2014 Mr Couper issued an application to the Master...
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Max Couper v Irwin Mitchell LLP and Others
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