Sheida Oraki v Michaela Joy Hall (Trustee in Bankruptcy of Sheida Oraki and Ardeshir Oraki)
| Jurisdiction | England & Wales |
| Judge | Simon Barker QC |
| Judgment Date | 28 June 2019 |
| Neutral Citation | [2019] EWHC 1515 (Ch) |
| Docket Number | BR-2005-000002 |
| Court | Chancery Division |
| Date | 28 June 2019 |
[2019] EWHC 1515 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
IN THE MATTER OF SHEIDA ORAKI
AND IN THE MATTER OF ARDESHIR ORAKI
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
HHJ Simon Barker
BR-2005-000002
Representation:
Dr Sheida Oraki a litigant in person was present on 15 May 2019 but did not attend on 17 May 2019
Mr Timothy Becker (directly instructed) represented Mr Ardeshir Oraki
Mr John Briggs (instructed by DAC BeachcroftLLP) represented Ms Michaela Hall
Application hearing dates: 15 and 17 May 2019 and 28 June 2019
JUDGMENT 1
I direct that pursuant to CPR 39APD6 paragraph 6.1 no tape recording shall be made of this judgment and that copies of this version shall stand as authentic and be treated as the official transcript.
This judgment concerns:
(1) the effective return hearing of an application by Dr Sheida Oraki (‘DrO’) and her husband, Mr Ardeshir Oraki (‘MrO’, collectively ‘theOs’), originally heard by Barling J on 24.12.18 as an urgent without notice application, for orders:
(a) suspending a writ of possession dated 17.12.18 relating to the freehold property at 68 Gladstone Avenue, Twickenham, which is theOs' home, (respectively ‘the writ of possession’ and ‘68GA’), which had been executed on 19.12.18, pending determination of an application to assess theOs' trustee in bankruptcy's remuneration and costs and/or an application for recovery of damages from the Solicitors Regulation Authority Compensation Fund (‘SRACF’) 2 regarding the actions of Dean & Dean, solicitors, (‘D&D’), and
(b) that the High Court bailiffs be directed to permit theOs and family members to re-enter 68GA and stay in occupation until further order;
(2) the effective hearing of Ms Michaela Hall's (‘MsH’) application, issued on 9.1.19, for an order that:
(a) the suspension of the writ of possession be lifted,
(b) the order of Barling J be discharged on the grounds of material non-disclosure, and
(c) theOs and any occupiers be prohibited from going to or within 50 metres of 68GA, save by pre-arranged appointment to remove their possessions;
(3) the effective hearing of theOs' application which was before Hildyard J on 15.1.19 in draft, was issued on 29.1.19, and was listed for hearing at this hearing with the permission of Hildyard J given on 15.1.19. The applicants are identified as theOs and a Mr Parast (‘MrP’), who is identified by DrO as her father. The order sought is that: the possession order made in relation to 68GA on 10.11.17 as varied on 20.12.17 (‘the 10.11.17 order’) and the writ of possession
(a) be reviewed, rescinded and/or varied under s.375(1) of the Insolvency Act 1986 (‘ IA1986’) or
(b) set aside on behalf of MrP under CPR 40.8 (intended to be a reference to CPR 40.8A) and on behalf of theOs on the grounds of being (i) statute barred under s.283A(2)(a) and (b) IA1986, and/or (ii) there was before the court no application to extend time for the enforcement of the original possession order relating to 68GA dated 20.10.08 (‘the 20.10.08 order’) as required by CPR 83.2(3)(a) and (b) and no compliance with CPR 83.2(4)(a)-(f). The detailed grounds in this application include an express allegation that MsH's solicitors and counsel, that is DAC Beachcroft LLP and Mr Briggs, deliberately concealed from the court that the right to enforce the possession order in respect of 68GA was statute barred and that there had not been and was not before the court an application to extend time for enforcement of the 20.10.08 Order; and,
(4) an application issued by theOs on 10.5.19 against D&D (although no relief is sought against D&D) and MsH for an order:
revoking and/or rescinding the “original Possession Order” and the writ of possession under s.303(1) and/or s.375(1) IA1986.
The grounds include: (i) that no Form PF92 has ever been issued regarding the “[order] purportedly granting possession”; (ii) the appointment of MsH, and her two predecessors Mr Timothy Bramston (‘MrTB’) and Mr Ian Defty (‘MrID’) were all invalid; (iii) the discharge of the Os from both their respective “purported bankruptcies” (in 2006/2007 and again in 2019) automatically relieved each of them from alleged bankruptcy debts (as to which none are admitted to have existed in the first place), see s.282(1) IA1986, and wiped the slate clean 3; (iii) theOs have no beneficial interest in 68GA or other property in, or purportedly in, their bankruptcy estates; (iv) even if MsH and her predecessors were lawfully appointed (which is disputed) there was no application within six years of the 20.10.08 order to proceed with the possession orders and the conditions for extension of time under CPR 83.2(3)(a) and (4)(a)-(f) have not been satisfied; (v) the application for permission to issue the writ of possession should have been, but was not, made or combined with an application to extend the six year time limit; (vi) no notice of the application to issue the writ of possession was given; (vii) no application to issue the writ of possession was given to theOs and CPR 83.13(8)(a) was not satisfied; (viii) execution of the writ of possession was unlawful because the
agents who attended to execute it were not High Court Enforcement Officers; and, (ix) the Os' bankruptcies were obtained by fraud and perversion of the course of justice and there was never any valid debt on which to found a bankruptcy petition.
On 24.12.18, Barling J made an order on theOs' ex parte application suspending the writ of possession and permitting theOs to have immediate and continuing access to 68GA until the return date, which Barling J fixed for 15.1.19, or further order. Applications (1) and (2) came before Hildyard J, as applications judge, on 15.1.19 with a time allowance of one hour. There was insufficient time to consider the applications on their merits. Hildyard J continued Barling J's order and fixed the effective return hearing as an application by order. Also on 15.1.19, Hildyard J directed that application (3), then in draft only, be heard together with applications (1) and (2) as an application by order and gave directions for its issue, the completion of evidence, and its hearing. Application (4), a yet further application notice issued by theOs on 10.5.19, was not given a return date on issue but Mr Briggs, on instructions, was content for it to be dealt with in the course of the hearing before me because for the most part the grounds travelled a familiar and oft trodden path.
There is a yet further, fifth, application by which theOs seek an order against D&D for the costs (if there are any such legitimate costs) of their bankruptcies. That application has been issued without a return date and it has not been served on anyone. Accordingly, I declined to treat it as before me for effective hearing or directions.
It is convenient to consider applications (1) and (2) together, and then applications (3) and (4) in turn.
By way of preface, I note, as have almost all judges in the several judgments in litigation commenced by theOs to which I have been referred, that the judgment upon which the first bankruptcies of MrO (on 1.9.05) and DrO (on 10.1.06) were based was itself obtained fraudulently and the underlying ‘debt’ was not a valid or enforceable debt, but was an abuse of the court's process. The judgment was based on the professional fees of D&D for the work done by a fellow Iranian citizen, Shahrokh Mireshkandari (‘ShaM’), whom theOs understood to be a qualified and practising solicitor and partner in D&D, which firm they retained on that understanding, whereas in fact ShaM had no such qualification and was a convicted fraudster.
Mr Becker, who appeared for theOs on the application to Barling J on 24.12.18 and for MrO on applications (1), (2) and (3) before me but was without instructions on application (4) (notwithstanding that MrO signed that application notice for theOs as applicants), submitted that everything that has happened to theOs is the consequence and fault of the fraudulent judgment and abusive bankruptcy orders obtained by D&D and theOs are wholly innocent victims. For reasons already explained by other courts, including the Court of Appeal twice, and which I endeavoured to explain during the hearing before me and shall explain briefly again, that goes too far.
The reality is that to an ever increasing extent theOs are the authors of their own misfortune. They have embarked upon, and persist in embarking upon, challenges to the appointment, conduct and dealing of their successive trustees in bankruptcy which have failed at first instance and on appeal. Over time they have given their successive trustees and the court different and conflicting accounts of the extent to which, if at all, they have beneficial interests in 68GA and other properties in their names comprised in their bankruptcy estates (they first claimed full beneficial interests and asserted that they were solvent, they now claim to have no beneficial interests). On the applications before me they have sought to influence the court by enlisting misguided support from third parties (Anthony Stansfield, the Police and Crime Commissioner for Thames Valley, who sent the court an inappropriate email about misuse of the courts by white collar criminal activity ~ apparently a reference to “recklessly negligent / crooked solicitors, barristers,...
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