Mr Wilfred Thackray v Mr Kenneth Wise
| Jurisdiction | England & Wales |
| Judge | Davis-White |
| Judgment Date | 22 July 2021 |
| Neutral Citation | [2021] EWHC 2059 (Ch) |
| Docket Number | Case No: BL-2019-LDS-000004 |
| Court | Chancery Division |
[2021] EWHC 2059 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LEEDS
BUSINESS LIST (ChD)
Leeds Combined Court|Centre
1 Oxford Row
Leeds LS1 3BY
HH JUDGE Davis-White QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: BL-2019-LDS-000004
Mr Kenneth Wise in person
Mr Douglas Cochran (instructed by Lyons Davidson) for the Claimants
Hearing dates: 15 July 2021
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.
HH JUDGE Davis-White QC (SITTING AS A JUDGE OF THE HIGH COURT)
HH Judge Davis-White QC:
On 16 July 2021 I had before me the application of Mr Kenneth Wise (the “Applicant” or “Mr Wise”) to re-hear his application dated 8 April 2021 whereby, in the box on the Application Notice under the question “What order are you asking the Court to make and why” he had inserted:
“ A Order of a CHARGING ORDER that I am told is not issued ON MY Freehold Property and an official stamped letter confirming that there is no charging order on my freehold property from the Court and my eviction was ILLEGAL.”
That application had been considered on the papers by DJ Geddes who by Order dated 28 April 2021 had struck out the same as “disclosing no reasonable grounds for bringing the Application and being an abuse of process and is marked as totally without merit”. The recitals to that order were four in number as follows:
(1) It [the Application of 8 April 2021] appears to be a further challenge to a Charging Order and Order for Sale obtained by the [Respondents] over a property formerly belonging to Mr Wise;
(2) The issues raised have been put before the Court on several occasions and dismissed on each occasion;
(3) The Application is incoherent but does not appear to raise any new issue that requires a hearing;
(4) Mr Wise has no remaining interest or standing in relation to the Property in question.
By the same Order, DJ Geddes directed that the matter be referred to a Judge with jurisdiction to consider the making of a General or Extended Civil Restraint Order.
As DJ Geddes' order was made on the papers without a hearing, Mr Wise had the right, which he exercised, to have the matter reconsidered at an oral hearing.
Meanwhile, the question of the making of a civil restraint order (“CRO”) was referred to me and I decided that it should await the outcome of any requested reconsideration.
Rather than have two hearings, DJ Geddes decided that it was appropriate for the oral hearing of the renewed application and the question of the making of a CRO should be sensibly heard at the same time before the same Judge. That is how Mr Wise's application of 8 April comes before me. The hearing proceeded by video link through the cloud video platform of HMCTS. Mr Wise attended that hearing on the platform by telephone. He did not raise any point that the mode of hearing was in any way unfair to him or inadequate.
In renewing his 8 April 2021 application, Mr Wise issued a further application dated 5 May 2021. Under the caption “What order are you asking the court to make and why?” he inserted the following:
“For the Order of sale to be removed on the property that is freehold and cannot be evicted by law because the land and property law is stated that eviction cannot be carried out if the freehold/title absolute/title by registration is on the land registry report that is part of the conveyance deeds and I wish the order of 28 April to be set aside”.
On 16 April 2021, I made an order dismissing the applications of Mr Wise that I have referred to and I also made an extended CRO against him. I said that I would provide my reasons in writing later. This judgment contains those reasons.
On the application I heard Mr Wise in person and for the Thackrays I heard from Mr Douglas Cochran of counsel. I am grateful to Mr Cochran for his helpful submissions, both oral and written. I am also grateful to Mr Wise so far as he attempted to keep his anger and frustration in check.
The applications and the making of a CRO arise against a long legal history that I will have to go into in some detail. Before I do so, by way of quick route map, I explain that:
i) Matters originated in a boundary dispute between Mr Wise and the Thackrays, the then owners of adjoining properties.
ii) Mr Wise brought proceedings against the Thackrays complaining that they had encroached upon the boundary of his property at 40, Deanshurst Gardens, Gildersome Leeds (“No 40”). The Thackrays lived at and owned next door, No 42 Deanshurst Gardens (“No 42”). Those proceedings were county court proceedings at the county court at Leeds with the number B35YM271 (the “Leeds Boundary Proceedings”).
iii) In April 2017, I gave a judgment on a preliminary issue holding that Mr Wise was wrong in his contentions and that there had been no encroachment upon his boundary. Following that, an order for costs was made in favour of the Thackrays, to be paid by Mr Wise.
iv) The costs were subject to a detailed assessment. Mr Wise not having raised any disputes on the Thackrays' bill of costs, the costs of the claim were allowed and a total sum of over £115,000 fell due.
v) Mr Wise did not pay this sum. The Thackrays obtained charging orders in respect of the sums owed. As various further costs were awarded against Mr Wise, those costs were also added to and secured by the relevant charging orders.
vi) In the current proceedings, and in reliance upon the charging orders, the Thackrays sought an order for sale and an order for vacant possession. Such order was granted by DJ Jackson in April 2019.
vii) Later in these proceedings, permission was given to the issue of a writ of possession. The writ was enforced. The order for sale was also given effect to and No. 40 was sold. The sale completed in about December 2020. The sale price was £110,000 and so the debts owed by Mr Wise to the Thackrays under the various court orders were not discharged in full.
viii) Various applications have been made by Mr Wise in the current proceedings and in the original county court proceedings seeking, in effect, to challenge my judgment and/or the charging orders and/or the orders for sale and vacant possession. The relevant applications have all been dismissed. Further, at various times, Mr Wise has been subjected to different CROs.
With that general chronological overview, I descend to some more detail. I also take some of the following from my judgment in the Leeds Boundary Proceedings dated 13 April 2017 (the “Leeds Judgment”). I should add that in the applications before me on this occasion, Mr Wise apparently sought to revisit points already dealt with by the court in the Leeds Judgment.
In about June 2015, a white line was painted showing, as it happens, what Mr Wise said in the Leeds Boundary Proceedings, was the boundary between No. 40 and No. 42 (Leeds Judgment paragraph [21]). The result of this was a report to the police by Mr Thackray and Mr Wise was charged with criminal damage (Leeds Judgment paragraph [22]).
In the meantime, the Leeds Boundary Proceedings were commenced in July 2015. By the time of the trial before me in February 2017, Mr Wise asserted that the Thackrays had encroached onto his land and onto land publicly owned by the local authority. This encroachment took the form primarily of the building of pillars and gates (hung from the pillars) at locations that he said were outside the property which formed No 42 (Leeds Judgment paragraph [8]). These gates essentially purported to extend the boundary of No 42 westward and also involved, Mr Wise asserted, the Thackrays demolishing a former wall which lay behind the new gates and which had formed the boundary of no 42 (Leeds Judgment paragraph [8]). As regards the works that he complained of, he also asserted that the relevant works were effected in breach of planning law (though not, as I recall, as part of his pleaded case).
On 9 October 2015, in the Leeds Boundary Proceedings, DJ Geddes made an order (among other things) that unless the Thackrays filed and served a fully particularised defence within 14 days their defence would stand struck out and the claimant would be entitled to a judgment on his claim. She also ordered that if they failed to attend the next hearing (an allocation hearing) or to serve the fully particularised defence as ordered then the court would make an order in favour of the claimant in such terms as it thinks just. The recitals to the order include one that Mr Wise had clarified that his claim was for the following relief: an order that the defendants remove any structure encroaching on his land or over which he had a right and for damages of £10,000.
This seems to be the origins of Mr Wise's belief and submission to me on the current applications, that the boundary dispute had been determined in his favour by DJ Geddes who had ordered the...
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