Ursula Riniker v Mostapha Al-Turk

Hearing date: 23 January 2023

APPROVED JUDGMENT

This judgment was handed down remotely at 10.30am on 17 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

With the permission of Martin Spencer J, the appellant appeals from the judgment of Her Honour Judge Baucher, who, by order dated 6 April 2022, struck out her appeal from the order of Deputy District Judge Morley, dated 7 November 2019, by which an interim charging order was made final and permission for which had been granted by order dated 18 September 2020 (‘the Baucher Order’). The nature of the substantive appeal need not be set out in this judgment. As they did at all hearings below, both the appellant and the respondent appeared in person.

The Baucher Order recited the fact that the appellant had not complied with certain paragraphs of an order for directions which had been made, following a hearing, by HHJ Luba KC, dated 4 February 2021 (‘the Luba Order’). By that order, the following requirements had been imposed, amongst others:

i) The appellant was to prepare a fresh appeal bundle for the hearing of the appeal, compliant with section 6 of CPR Practice Direction 52B, the content of which was to be as specified in the order (paragraph 6);

ii) The content of the appeal bundle was to be agreed, if possible, and, were it not to be possible, the respondent was to file and serve hard copies of an indexed and paginated supplementary bundle, no fewer than five days prior to the hearing of the appeal (paragraph 7);

iii) No fewer than three days prior to the hearing of the appeal, the parties were to serve on each other and file with the court hard copy skeleton arguments (paragraph 8, as supplemented by requirements set out in paragraphs 9 and 10). By paragraph 11, unless a party had filed and served a skeleton argument, compliant with paragraph 8, s/he would be debarred from being heard on the appeal without the permission of the judge conducting it.

iv) The appellant was obliged to serve on the respondent in advance, and bring in hard copy to the court for its use at the next hearing, an indexed and paginated bundle of any statutory material or caselaw to which either party had referred in his or her skeleton argument (paragraph 14).

The appellant had not appealed from the Luba Order, but, by four-page e-mail dated 15 February 2021, had requested that certain parts of it be set aside, under CPR 3.3(5)(a), on the basis that they had been made after the hearing, of the court's own motion, and were said to lack substantive justification for reasons which she set out. Within that email, she asked that her application be considered at the full hearing of her appeal. No application had been made, formally, pursuant to Part 23 CPR and, at the time of hearing before HHJ Baucher, no part of the Luba Order had been set aside.

HHJ Baucher considered the appellant to have been in breach of the Luba Order. Having invited an oral application for relief from sanctions, which the appellant declined to make, of her own motion HHJ Baucher considered the principles set out in Denton v TH White Limited [2014] 1 WLR 3296, referring also to Patel v Mussa [2015] EWCA Civ 434, and refused relief from sanction, going on to strike out the appeal. It is against that order that limited permission to appeal has been given. I shall return to the scope of the appeal later in this judgment.

In essence, by the ground of appeal for which permission has been granted, the appellant asserts that her application to set aside the Luba Order had been properly constituted, need not have been made under Part 23 CPR (though had been substantively compliant with that part), and that, pursuant to CPR 3.3(3), where the court proposes to make an order of its own initiative, and to hold a hearing for that purpose, it must give each party likely to be affected by that order at least three days' notice of that hearing. HHJ Baucher, it is said, did not comply with that requirement.

I have read the official transcript of the hearing before HHJ Baucher and the approved transcript of her judgment. I have also read the two-part transcript of the hearing which had taken place before HHJ Luba KC, on 4 February 2021. That hearing had been listed to consider the substantive appeal from the order of DDJ Morley, but the appellant had been unable to produce, for the court or the respondent, copies of the authorities and statutory materials upon which she intended to rely and the respondent had not complied with an earlier requirement that he produce a skeleton argument. Having heard from the parties on both such matters, Judge Luba KC adjourned the hearing, stating that he would also make an unless order requiring the respondent to provide a skeleton argument. He concluded the hearing by stating that his order would be sent out by post to the parties. That order, dated 5 February 2021, included the directions of which the appellant was found by HHJ Baucher to have been in breach. From the transcripts with which I have been provided, it does not appear that they had been canvassed with the parties in the course of the hearing before Judge Luba, though paragraph 11, in so far as it related to the respondent, had been the subject of submissions and paragraph 14 broadly reflected the basis upon which the hearing of the appeal had been adjourned, at least in so far as it required the appellant to produce a bundle of legal materials upon which she herself wished to rely.

The parties' submissions

The appellant

The appellant produced detailed skeleton arguments, supplemented by focused oral submissions. In summary, she contended that, albeit made following a hearing at which both parties had been present, the directions made by Judge Luba KC which she had applied to set aside had been made of his own motion, and without the benefit of the parties' submissions. In such circumstances, she had been entitled to make, and had made, an application under CPR 3.3(5)(a) to set aside the affected parts of his order, in a form compliant with paragraphs 2.1 and 3.2 of PD 5B. Having done so, Judge Luba's order ought to have been deemed suspended pending the determination of her application, and she ought not to have attracted criticism for not having complied with it. Furthermore, she submitted, albeit that her application had in fact complied with Part 23 and PD 23A, neither of which obliged a party to use Form N244, CPR 3.3(5)(a) did not require that an application be made in the form for which Part 23 provided (and would, otherwise be redundant). Accordingly, Judge Baucher had improperly (1) refused to consider, or (2) rejected, her application. The fee payable upon issue of an application made on Form N244 was not required in circumstances in which the substantive application related to matters on which the court had not sought prior submissions at a hearing and which, thus, sought to achieve the court's compliance with the rules in accordance with which it ought to operate and which litigants had the right to expect. By contrast, the fee required for the lodging of Form N244 reflected the need for the court to list a hearing ‘purely’ for the benefit of the applicant. In any event, submitted the appellant, any failure to comply with Part 23 (should compliance have been required) would have constituted no more than an error of procedure which, per CPR 3.10, would not have invalidated any step taken in the proceedings and would have been capable of remedy by the court. In the appellant's submission, she had been under no obligation to apply for relief from sanction, or to have appealed from the Luba Order. In any event, Judge Baucher had misapplied the principles set out in Denton v TH White [2014] EWCA Civ 906 and had had regard to irrelevant caselaw. She had mechanically addressed limbs one and two of the Denton test and had been unable meaningfully to address limb three having been unaware of the material background to the appeal and of the case papers. Her approach had denied the appellant's right to a fair hearing under Article 6(1) ECHR and section 6(1) of the Human Rights Act 1998. It followed that her order should be set aside and the substantive appeal from the order of Deputy District Judge Morley reinstated for hearing.

In support of the above submissions, the appellant relied upon a number of earlier decisions, some of which being simply examples of cases in which an application made under CPR 3.3(5)(a) had been considered on its merits, or a direction given that the affected party could apply for the substantive order to be set aside, varied or discharged within seven days, in accordance with CPR 3.3(5)(b). On the points of principle, she pointed to the dicta of Dyson LJ (as he then was), in Collier v Williams [2006] EWCA Civ 20, in particular those at [29] and [36], submitting that his logic applied equally to orders made of the court's own motion:

‘29. …if it were decided by this court that an applicant cannot, as a party affected by an order, invoke CPR 3.5(5), but is obliged to appeal if he wishes to challenge an order made without a hearing, that would deter applicants from asking for their applications to be disposed of without a hearing.’

…

36. We would point out …that there is no express provision which prevents an unsuccessful applicant from asking the court to reconsider the matter (rather than appeal) in the event that the court makes an order without a hearing even where the applicant...