ROBB v The National Crime Agency
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT |
| Judgment Date | 29 January 2014 |
| Neutral Citation | [2014] EWCA Civ 171 |
| Docket Number | A2/2012/1160 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2014 |
[2014] EWCA Civ 171
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
A2/2012/1160
The Applicant appeared in person
The Respondent did not appear and was not represented
: This is an application for permission to appeal by Gary John Robb, who is acting in person, and who seeks to challenge an order made by MacKay J on 7 March 2013 refusing to adjourn the trial (that is the first order) and his judgment at the trial dated 30 March 2013 (the second order). The application follows refusal of permission by McCombe LJ.
Background.
Mr Robb has a significant criminal record. During his trial in 1997 for permitting his nightclub to be used for the supply of class A drugs he absconded and fled to the Turkish Republic of Northern Cyprus ("TRNC") which is not recognised by the United Kingdom and from which extradition will not run. There he set up a property business attracting lay investors looking to build homes for holidays and retirement. That enterprise is alleged to have been fraudulent.
In 2005 he attempted to move around £1.5 million from a personal account in the TRNC to another personal account in Thailand but the money was intercepted and a restraining order was imposed by Collins J on 25 August 2005.
In January 2009 Mr Robb was forcibly removed from TRNC back to the United Kingdom where he was arrested and imprisoned pending trial. On 8 July 2010 he was ultimately convicted in this country and sentenced to 5 years imprisonment less time spent on remand.
On 13 July 2011 pursuant to a European Arrest Warrant ("EAW") Westminster Magistrates' Court ordered that Mr Robb be extradited to the Greek speaking Republic of Cyprus ("ROC") to face criminal charges of illegal use of land in relation to his property business in the TRNC. His removal to the ROC was to take place on 9 August 2011.
Having been extradited, on 27 September 2011 he pleaded guilty to the charges in the ROC and was sentenced to 11 months in custody dated from 3 August 2011. In the event he was released from custody in Nicosia on 12 April 2012 and returned to the United Kingdom the very next day.
The two orders of MacKay J marked the conclusion of lengthy and convoluted civil proceedings brought by what is now the National Crime Agency ("NCA") which has taken over the functions of what was then the Serious Organised Crime Agency ("SOCA"). The civil proceedings in question are for a Civil Recovery Order under Part 5 of the Proceeds of Crime Act 2002 (" POCA").
To underline the time that Mr Robb has had to deal with these proceedings the history of the litigation, the confiscation and civil recovery proceedings under POCA need setting out in some detail. On 27 October 2008 SOCA applied for a property freezing order ("PFO") in case the restraining order imposed by Collins J lapsed. Deputy master Knapman permitted service by SOCA out of the jurisdiction in TRNC and in November 2008 Mr Robb, who was clearly aware of what was happening, requested time to put in evidence. The return date of 8 December 2008 was postponed to February 2009 at his request.
After his return to the UK in January 2009 Mr Robb again sought an adjournment from February 2009. On 1 April 2009 Mr Robb indicated that he no longer opposed continuation of the PFO. A hearing was listed to take place on 22 July 2009. To avoid parallel criminal and civil proceedings SOCA changed the basis of the PFO from the UK drugs related charge to the ROC charges of property fraud.
On 22 July 2009 Mr Robb sought and was granted by Dobbs J a further adjournment to put in new evidence. In August 2009 Mr Robb's legal representatives sought release of frozen funds to cover his legal costs.
On 17 September 2009 Walker J granted SOCA a disclosure order in support of a civil recovery investigation and a PFO over £300,000 of recoverable property. This was not opposed. On 18 March 2010 SOCA applied to extend the PFO to the whole of the recoverable property. As Mr Robb had pleaded guilty his legal representatives indicated they wanted more time to gather and serve evidence. As with the order of Dobbs J, no such evidence was forthcoming.
On 7 May 2010 Stadlen J extended the PFO to the whole of the recoverable property on condition that the Crown Prosecution Service ("CPS") lifted the restraint order, which they did. A disclosure order was served on Mr Robb on 29 June 2010. On 1 July 2010 SOCA consented to yet another request for an extension of time. A week later Mr Robb was sent to prison in the United Kingdom.
On 9 September 2010 a disclosure interview with Mr Robb took place at HMP Holme House. Correspondence indicated that SOCA was chasing evidence on the PFO which had been promised. Thereafter a further extension for Mr Robb was agreed to allow time to decide, after advice, whether he should oppose the civil recovery proceedings.
On 6 October 2010, the date agreed, Mr Robb's then legal representatives indicated that he did not oppose the property freezing order but did oppose the Part 5 procedures for civil recovery.
On 17 December 2010, considering the application made nine months earlier, Kenneth Parker J extended the property freezing order on condition that SOCA brought civil recovery proceedings by 31 March 2011. Mr Robb did not oppose that application.
In February 2011 Mr Robb's solicitors sought payment of legal costs out of his frozen assets. SOCA highlighted the need for him to file a compliance statement of assets as a prerequisite.
At the end of March 2011 SOCA issued a claim form under CPR Part 8 and served it on Mr Robb the following week. It was acknowledged a week later. By consent order of 18 April 2011 the claim was transferred from the Administrative Court to the Queen's Bench Division and a summary particulars of claim and defence were ordered to be served. On 27 May 2011 SOCA served the summary particulars of claim.
In late May and throughout June SOCA and Mr Robb's solicitors disputed the extent to which there had been compliance with the order in the statement of assets served to allow legal costs to be paid. The solicitors also sought to extend time to serve his defence to 1 October 2011. Throughout this time Mr Robb was of course in this country and thus available to his legal advisers.
On 28 June 2011 several third parties applied to be added to the civil recovery proceedings. On 1 July, just prior to the scheduled case management conference, Mr Robb's solicitors again sought an extension of time for the defence and asked that £300,000 be released to pay legal costs. At a case management conference on 6 July Master Eyre dismissed as "near to abuse" the application for legal costs to be released. He also joined the third parties and allowed the extension to 8 August 2011, the day before Mr Robb's expected extradition to the ROC, for the filing of the defence.
Mr Robb's solicitors, having threatened to "down tools" if not paid, wrote to SOCA towards the end of the first week of August 2011. Following the extradition the solicitors were unsure of their instructions and it is important to underline that it was asserted that on several occasions Mr Robb had refused to sign an amended witness statement to support their application for costs to be released from frozen funds. He had indicated that he would only do so on his return to the UK from the ROC. No defence or application for legal costs was then served.
On 23 August 2011 SOCA served an application for summary judgment. That was acknowledged on 8 September. Just prior to his Cypriot trial evidence was served by his solicitor, in a witness statement sent on 3 October 2011, and once Mr Robb was in custody in the ROC and had apparently refused to provide instructions so that an application for legal costs to be released could be made. He had also refused to give instructions in relation to his defence.
On 6 October 2011 Singh J made an unless order for the service of the defence and ancillary applications by 4 November 2011, failing which Mr Robb was to be debarred from participation in the proceedings. The trial was listed for 16 January 2012. His then solicitors came off the record.
On 14 October 2011 Mr Robb's brother James instructed a new firm of solicitors, Messrs Garstangs, to act on Mr Robb's behalf. On 4 November, the day the defence was due to be served under the unless order of Singh J, Garstangs filed a without notice application to extend time for filing the defence. Langstaff J adjourned the application to be heard in the following week.
On 10 November 2011 with SOCA's consent Wilkie J granted an extension and ordered the defence and evidence to be served by 23 December 2011 with a funding application to be made by 1 December 2011, which it was.
On 7 December 2011, with the consent of the SOCA, Eady J ordered that £50,000 be excluded for legal costs on the basis of the defence being served on 23 December in accordance with the order of Wilkie J. The hearing date was sent.
On 21 December Garstangs filed an application for a further extension of time for the defence, vacation of the trial date and further exclusions for legal costs. The application to vacate the trial date was refused and the further exclusions for legal costs was later withdrawn. On 23 December Singh J made a second unless order requiring the defence to be served by 3 February 2012,...
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