Tofigh Pius v Richard Fearnley (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Roth |
| Judgment Date | 17 April 2013 |
| Neutral Citation | [2013] EWHC 2216 (Ch) |
| Court | Chancery Division |
| Docket Number | No. HC12C01791 |
| Date | 17 April 2013 |
[2013] EWHC 2216 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
Royal Courts of Justice
Mr. Justice Roth
No. HC12C01791
HC12A03130
APPEARANCES
THE CLAIMANT did not attend and was not represented.
Mr. M. Fell appeared on behalf of the Defendant in Action HC12C01791 and the 3 rd– 4 th and 7 th– 12 th Defendants in Action HC12A03130
THE 1 st and 2 nd DEFENDANTS in Action HC12A03130 (Mr. and Mrs. Raynsford) appeared in person.
There are a series of applications before the court against Dr. Tofigh Pius, who is acting in person. The applications were listed for 10.30 am in the usual way but Dr. Pius has not appeared and it is now 11.30 am. When I came into court in relation to this hearing at 10.30, I thought it appropriate to allow some time, given the transport and access problems this morning because of Baroness Thatcher's funeral. Over the brief adjournment there has been brought to my attention an email that Dr. Pius sent to the court last night, which reads as follows:
"If his Lordship, Mr. Justice Roth accepts to change the hearing of my application to Thursday, 18 th April I will be able to come, and I think there will be no confusion for the others to come as well. But as for tomorrow I am very, very sorry and regret that I cannot come and probably in a similar way 'the others' cannot come because, as I said before, I already served the application on them by hand. Please either my application be considered as marked without hearing or kindly re-arrange a hearing before his Lordship, Mr. Justice Roth for another day."
The application that is there referred to is an application that Dr. Pius issued yesterday, 16 th April, seeking an adjournment.
In that application he makes the point that English is his second language. He says that he has received two bundles of over 500 pages, and a new skeleton argument from the applicants on 15 th April (the previous day). He says that he believes that the applicants:
"… deliberately delayed to send their revised bundle, which has about 400 pages more than the one they submitted before. They [are] deliberately doing such sabotage to my preparations, another of which is to combine the above two cases together. As the claimant I absolutely disagree with such amalgamations. Furthermore, a one day hearing which was arranged for 10 th January 2013 for the hearing of four double applications by them for summary judgment and struck out order now includes four more applications for ECRO with 1.5 hours for each."
He continues, after referring to the applications, that he believes that the applicants are:
"… collectively interested to deprive me from appropriate time for preparing my response to their huge submissions. They have now eight applications for 12 requests and trying to suffocate my rights by way of case mismanagement against my claims."
He seeks a separate day of hearing for the ECRO applications from the other matters.
Since no further reasons are given in his email that I quoted, it appears that he is relying on the same grounds as set out in his application issued yesterday in seeking a postponement. I inquired of counsel at the hearing when the skeleton argument was provided to Dr. Pius and he informed me that it was served by email on 10 th April to the address that Dr. Pius has regularly used. There is no reason to suppose he would not have received it and it is not a particularly long skeleton argument, although I appreciate that it makes certain points which for a litigant in person may be new and not obvious regarding the judicial immunities of various parties and the fact that the courts do not have legal personality such as they can be sued.
As regards the bundles, they are indeed large because of the long history of this matter, but the application notices to which Dr. Pius refers have all been served in good time. The substantive applications in the actions were issued as long ago as June 2012 and September 2012 with the accompanying witness statements, so the mere fact that Dr. Pius has received further copies in the bundle does not disadvantage him. He put in a long statement himself for the anticipated hearing before the Chief Master in January showing that he had looked at these materials. That hearing, I should say, did not proceed as the Chief Master directed that the matter be re-listed before a judge because of the application for ECROs. Furthermore, as even a cursory glance at this material shows, Dr. Pius is an individual who now has considerable experience of litigation and of the courts. Her Honour Judge Marshall, who heard him conduct a full trial in the Central London County Court, observed that he is an intelligent man, and it emerges also from reading the judgments of the Court of Appeal on 10 th March 2011 concerning his application for permission to appeal regarding costs orders, that he is someone who is able to locate and consider the various rules involved. In those circumstances, I do not accept that he did not have sufficient opportunity to prepare for the hearing today. That was the only reason that was put forward for his request for an adjournment, and that request is accordingly refused.
I do bear in mind as regards the ECRO applications that they are very serious matters for an individual but, as I say, Dr. Pius has had sufficient notice of them and the opportunity, if he wished, to instruct anyone to assist him. It is not, contrary to what is said in his application, for the court to find him a human rights' barrister. It is a matter for him to instruct lawyers if he so wishes. Accordingly, I will not adjourn these applications as asked by Dr. Pius, and I think it is appropriate to hear them in his absence.
LATER:
In light of what I have just been told I think I should slightly amend by what I have just said in my brief judgment. I had the impression from his application that the bundles about which Dr. Pius was complaining are the hearing bundles. I am now informed by counsel for the applicants that in fact he had had those bundles since the matter was to be heard before the Chief Chancery Master in January, save only for the addition of the applications and supporting witness statements regarding the ECRO applications; those were provided to him separately in March. What was given to him on Monday was not, as I had erroneously thought, those bundles, but two bundles of authorities. I understand the difficulty that a litigant in person can face in having to absorb authorities, but given the nature of the points in this case which are already made in the witness statements that had been served, I do not accept that that is a sufficient reason to grant an adjournment of this hearing. I believe that if Dr. Pius had chosen to appear he would have been able to address the court on any points that arose.
LATER:
There are applications before the court concerning two actions commenced by Dr. Pius. Dr. Pius has acted throughout in person but, as will appear, he is by this point an experienced litigant. He did not appear before the court today to resist those applications although he clearly does oppose them, and yesterday he applied to adjourn this hearing by at least 24 hours. I determined that application at the outset of the proceedings today and refused it for reasons which I gave. It follows that he is not present, but Mr. Fell of counsel, appearing on behalf of the applicant on one of the applications, and for all but two of the applicants on the other application, consistent with his duty to the court, has given me a very full and careful account of the background to this long running and most unfortunate matter.
That background stems from what can shortly be called a boundary dispute. It concerns an "L" shaped narrow strip of land, running just south of 98 Etherstone Road, Streatham, Southwest London, that being the property of Mr. and Mrs. Raynsford, and turning westwards to Springwell Road, abutting property at 19 Springwell Road which was owned by Dr. Pius or his sister. It does not matter for present purposes who owns 19 Springwell Road, and I shall assume that Dr. Pius has a property interest in the matter. The dispute was essentially as to who was entitled to ownership of that narrow L-shaped strip ("the disputed land"). The dispute developed in 2002 after Dr. Pius' attempt to purchase a larger plot of land, either adjacent to the disputed land or encompassing the disputed land, depending on which view one takes, from the previous owners (a Mr. and Mrs. Moore) was unsuccessful and he discovered to his dismay that the Moores had sold it to Mr. and Mrs. Raynsford.
To cut matters short, in April 2004 Dr. Pius made an application to the Land Registry to alter the registered title of the land that had been purchased by Mr. and Mrs. Raynsford — referred to as the "garage land" because it has on it some 20 garages — so as to exclude the disputed land from this title and instead include it in the title to his property or his sister's property. Shortly after that, Mr. and Mrs. Raynsford commenced proceedings in the County Court alleging that Dr. Pius was trespassing on their property, this being the disputed land. He counterclaimed in that action alleging that the disputed land was not part of their property but that the Register should be rectified to show it being within his title, and seeking declarations to that effect and an order for possession. He made an...
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