Rizwan Hussain v Gulraj Vaswani
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Lord Justice Nugee,Lord Justice Lewison |
| Judgment Date | 10 February 2021 |
| Neutral Citation | [2021] EWCA Civ 146 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2021 |
| Docket Number | Case Nos: A3/2020/1900, 1902 |
[2021] EWCA Civ 146
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, BUSINESS AND PROPERTY
COURTS, BUSINESS LIST (CHANCERY DIVISION)
Mann J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Arnold
and
Lord Justice Nugee
Case Nos: A3/2020/1900, 1902
Adam Tear of Scott-Moncrieff & Associates Ltd for the Appellant
The Respondents did not appear and were not represented
Hearing date: 4 February 2021
Approved Judgment
Introduction
Rizwan Hussain appealed against two orders of Mann J dated 30 October and 4 November 2020 refusing Mr Hussain permission to make an application under a general civil restraint order made by David Halpern QC sitting as a Deputy High Court on 9 July 2020 (“the GCRO”). The application which Mr Hussain wished to make was an application to His Honour Judge Lethem sitting in the County Court at Central London to purge Mr Hussain's contempt of court and to ask for his early release from a sentence of 12 months' imprisonment imposed by Judge Lethem by order dated 30 July 2020 (“the Committal Order”). At the conclusion of the hearing the Court announced that the appeal was dismissed for reasons that would be given subsequently. This judgment sets out my reasons for concluding that the appeal should be dismissed.
The GCRO
Practice Direction 3C paragraphs 4.1 to 4.6 provide, so far as relevant for present purposes, as follows:
“ 4.1 A general civil restraint order may be made by –
…
(2) a judge of the High Court; or
…,
where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate.
4.2 Unless the court otherwise orders, where the court makes a general civil restraint order, the party against whom the order is made –
(1) will be restrained from issuing any claim or making any application in –
…
(b) the High Court or the County Court if the order has been made by a judge of the High Court; or
…,
without first obtaining the permission of a judge identified in the order;
(2) may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; and
(3) may apply for permission to appeal the order and if permission is granted, may appeal the order.
4.3 Where a party who is subject to a general civil restraint order –
(1) issues a claim or makes an application in a court identified in the order without first obtaining the permission of a judge identified in the order, the claim or application will automatically be struck out or dismissed –
(a) without the judge having to make any further order; and
(b) without the need for the other party to respond to it;
(2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss that application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal.
4.4 A party who is subject to a general civil restraint order may not make an application for permission under paragraphs 4.2( 1) or 4.2(2) without first serving notice of the application on the other party in accordance with paragraph 4.5.
4.5 A notice under paragraph 4.4 must –
(1) set out the nature and grounds of the application; and
(2) provide the other party with at least 7 days within which to respond.
4.6 An application for permission under paragraphs 4.2( 1) or 4.2(2) –
(1) must be made in writing;
(2) must include the other party's written response, if any, to the notice served under paragraph 4.4; and
(3) will be determined without a hearing.”
The GCRO was made in proceedings between Kilimanjaro AM Ltd (“KAM”) and (1) Mann Made Corporate Services (UK) Ltd (“Mann”), (2) Mark Cundy, (3) David Cathersides, (4) Mr Hussain, (5) Alfred Olutayo Oyekoya and (6) Rajnish Kalia. On 10 May 2019 Mr Halpern struck out a claim brought in the name of KAM against Mann, Mr Cundy and Mr Cathersides (“the original defendants”) on the ground that Mr Oyekoya and Kilimanjaro Capital Management Ltd (“KCM”), who purported to be the directors of KAM, were not genuinely directors, that their purported appointments were the result of fraud and forgeries, and accordingly that the proceedings had been brought in the name of KAM without authority. He certified that the claim had been brought totally without merit. Subsequently Mr Halpern made an order joining Mr Hussain, Mr Oyekoya and Mr Kalia as defendants to the proceedings in order for applications to be made against them for non-party costs orders and, in the case of Mr Hussain and Mr Oyekoya, for general civil restraint orders.
The original defendants' application for general civil restraint orders to be made against Mr Hussain and Mr Oyekoya came before Mr Halpern on 7 July 2020. On 9 July 2020 he made orders as requested by the original defendants for the reasons given in a reserved judgment handed down on the same date ( [2020] EWHC 1804 (Ch)). Mr Halpern found that Mr Hussain and Mr Oyekoya had both persistently brought proceedings and applications which were totally without merit. In addition to the proceedings which were before him, he found that Mr Hussain and Mr Oyekoya were serial litigators who had been involved, either directly or indirectly, in numerous other proceedings in which they had committed abuses of process. He therefore concluded at [24]:
“The court must protect the integrity of its own process and must also protect future would-be defendants from similar abusive conduct. The imposition of GCROs will not, of course, prevent the Respondents from commencing proceedings or making applications if they are able to satisfy a judge that it is proper to do so. I therefore make GCROs against both Respondents.”
The GCRO was in the standard form. The operative part of the order provided that Mr Hussain “be restrained from issuing any claim or making any application in any court specified below without first obtaining the permission of” either Snowden J or Mann J. The specified courts were the High Court and “Any county court”. The order went on to set out (among other things) the procedure for either making an application for permission or making an application to amend or discharge the order in accordance with PD 3C paras. 4.4, 4.5 and 4.6.
It does not appear to have been brought to Mr Halpern's attention at the time he made this order that on 1 July 2020 Judge Lethem had adjourned an application by Gulray, Saroj and Kriti Vaswani (“the Vaswanis”) in separate proceedings for Mr Hussain to be committed to prison for sentencing after having found Mr Hussain guilty of contempt.
Mr Hussain, who acted in person in the proceedings leading to the making of the GCRO, has made no application to appeal the GCRO or to amend or discharge it. Mr Hussain's advocate suggested that Mr Hussain had been disadvantaged by the absence of legal aid for the conduct of those proceedings, unlike the committal proceedings. I do not accept this. There is nothing to inhibit a litigant in person from making such an application, and the evidence shows that Mr Hussain is an experienced litigant in person.
The Committal Order
The background to the Committal Order is set out in my judgment on an appeal by Mr Hussain to this Court against that order: Hussain v Vaswani [2020] EWCA Civ 1216 at [2]–[17]. It is not necessary to set this out in detail again. The salient points for present purposes are as follows. Mr Hussain was the tenant of an apartment owned by the Vaswanis. The Vaswanis brought proceedings for possession of the apartment for non-payment of rent and obtained an order for possession and the payment of substantial arrears of rent. Mr Hussain sought a stay of execution pending appeal, and for that purpose on 2 January 2020 he gave the court an undertaking to pay the sum of £92,500 to an account nominated by the Vaswanis within four working days. On 6 January 2020 he gave the court a further undertaking to pay the Vaswanis £1,950 a week for occupation of the property until disposal of the appeal. He did not comply with those undertakings, however. On 21 January 2020 the Vaswanis applied for Mr Hussain to be committed to prison for contempt of court. In his judgment dated 1 July 2020 Judge Lethem found that Mr Hussain was in breach of the undertakings and therefore guilty of two counts of contempt. Sentencing was adjourned to 30 July 2020.
On 30 July 2020 Judge Lethem sentenced Mr Hussain to imprisonment for a term of 12 months on each of the two counts, to be served concurrently. As explained in my previous judgment at [51] and [54], Judge Lethem found that the contempts were “a particularly egregious breach of undertakings, particularly given the circumstances in which they were given”. Among those circumstances was the fact that on 6 January 2020 Mr Hussain had falsely told the judge that the sum of £92,500 had been paid and produced a document from KCM purporting to confirm that fact. Judge Lethem also took into account the fact that the money remained unpaid and the absence of any guilty plea, contrition or remorse on the part of Mr Hussain. Judge Lethem therefore took as his starting point a sentence of 18 months.
Judge Lethem...
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