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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Frewin v Boski & Ors [2001] EWCA Civ 120 (31 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/120.html Cite as: [2001] EWCA Civ 120

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON COUNTY COURT
(His Honour Judge Bishop)

		Royal Courts of Justice Strand London WC2 Wednesday 31 January 2001

Wednesday 31 January 2001

1. LORD JUSTICE MAY: This is a reinstated application by Mr Arthur Frewin, the claimant, for permission to appeal. The matter has already been dealt with by Jonathan Parker LJ on 27 July 2000. On that occasion, unfortunately Mr Frewin did not attend because he was ill. Jonathan Parker LJ reckoned that in the circumstances he ought to proceed to determine the matter. I do not think that there is any reason to go into that question. But today Mr Frewin has appeared and has asked for his application to be reconsidered. Well, I am going to reconsider it.
2. Mr Frewin was a director and a member of a company called South London Dial-a-Ride Ltd, which was a company limited by guarantee. On 19 February 1997, by a resolution by the board of directors, of whom he was one, he was dismissed, both as director and as a member of the company. Mr Frewin reckons, and has always contended, that his dismissal was illegal because it was contrary to the Articles of Association. In the proceedings that are the subject of this application, he claims damages for conspiracy, constituting the agreement to dismiss him illegally; a declaration that he was illegally deprived of his membership of the board and of the company; an order that the defendants, who were, I think, originally seven in number (but two have since died) be dismissed from the board; and that the defendants be banned from seeking office for a period to be set by the court.
3. He issued the proceedings on 29 January 1998. There was a defence, a pre-trial review and an amended defence, and there were various orders in relation to the conduct of the proceedings, until on 21 October 1998 the defendants made an application to strike out Mr Frewin's claim, and about a month later, on 23 November 1998, he made an application to strike out the amended defence on the grounds, among other things, that the defendants had failed to comply with a previous order of the court.
4. Each of these applications was listed to be heard before District Judge Sturdy on 13 January 1999. She decided to hear the defendants' application first. She acceded to it, and Mr Frewin's claim was struck out. He promptly appealed against that order, and the appeal was heard before His Honour Judge Bishop on 18 February 1999. He dismissed the appeal and he refused permission to appeal. Mr Frewin then sought permission to appeal to this court against that decision, which was refused by Jonathan Parker LJ on 27 July 2000. On 11 September 2000 Mr Frewin renewed his application for permission to appeal on the ground that his non-attendance before Jonathan Parker LJ was due to his ill-health on that occasion.
5. It is convenient to refer to a substantial part of the judgment of Jonathan Parker LJ because he sets out the position in it. This is paragraph 4 of his judgment:

"The application is an application by Mr Frewin for permission to appeal against an order made by His Honour Judge Bishop, sitting in the Kingston County Court, on 18 February 1999. By his order, Judge Bishop dismissed Mr Frewin's appeal against an order made by District Judge Sturdy on 13 January 1999, whereby the District Judge struck out the Particulars of Claim under Order 13, rule 5 of the relevant rules, on the ground that the Particulars of Claim disclosed no reasonable cause of action and were otherwise an abuse of the process of the court. Thus, the proposed appeal, should permission be granted, would be a 'second tier' appeal in the sense that the decision appealed from is itself a decision made on appeal. Rule 52.13 of the Civil Procedure Rules provides that the Court of Appeal will not give permission for such an appeal unless it considers that the appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear it."

6. I have, in the course of discussion with Mr Frewin this morning, drawn his attention to and emphasised that provision of the rules. Going back to Jonathan Parker LJ he said this:

"5.The background to the action is, in summary, as follows. The seven individuals who are joined as defendants to the action, two of whom have unfortunately died since the commencement of proceedings, are or were members and directors of a company called South London Dial-a-Ride Limited ("the Company"). The Company is limited by guarantee and its object, as stated in clause 3 of the Company's Memorandum of Association, is:

'... the relief of persons with disabilities by the provision of transport for such persons being in need thereof.'

7. Clause 5 of the Company's memorandum provides as follows (so far as material):

'The income and property of the company shall be applied solely towards the promotion of the objects of the company as set forth in this Memorandum of Association and no portion of them shall be paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to members of the company.'

8. .Mr Frewin was also a member of the Company and he contends that he remains a member of it, despite attempts by the directors of the Company to remove him as a member, pursuant to Article 5 of the Company's Articles of Association. Article 5 provides as follows:

'Every person who is a member of the company shall cease to be a member upon the passing of a resolution of the Board terminating her/his membership, providing always that the member is invited to attend the Board meeting at which such resolution is considered.'

9. In January 1998, Mr Frewin, by then acting in person, commenced the present action against the seven individual members and directors. He chose not to join the Company as a defendant. I use the word 'chose' advisedly since it appears that it was pointed out to him in clear terms, by the solicitors representing the defendants, that he might be in a serious procedural difficulty if he did not join the Company as a defendant, given the nature of the relief which he claims, to which I shall turn in a moment. By his Particulars of Claim Mr Frewin claimed, firstly, damages for conspiracy against the defendants. The claim is pleaded in these terms:

'I claim damages from the defendants, all directors of South London Dial-a-Ride Limited, for conspiring to illegally dismiss me as a Member and as a Director of the said Company and Charitable Trust ...'

10. By way of particulars under that pleading, Mr Frewin alleges that a resolution of the directors to dismiss him, purportedly passed on 19 February 1997, was ineffective and illegal. Secondly, he sought by his Particulars of Claim, a declaration to the effect that he was illegally deprived of his membership and illegally dismissed from the Board. In this respect, the Particulars of Claim read as follows:

'I ask the Court to confirm that I was illegally deprived of my membership of South London Dial-a-Ride Limited and illegally dismissed from the Board of the Company.'

11. Thirdly, Mr Frewin, in his Particulars of Claim, asked the court to 'recommend' the dismissal of the defendants from the Board of the Company. Lastly, he sought an order that the defendants be banned from acting as directors for a period set by the court. As I understand that last claim, what Mr Frewin was seeking was in the effect the disqualification of the defendants as directors.
12. On 20 April 1998 an order for directions was made, setting out, as I understand it, a timetable for delivery of further pleadings, disclosure, inspection, exchange of witness statements and so forth. Mr Frewin contended that the defendants failed to meet the timetable laid down by that order and he further contended that that failure amounted to a contempt of court on the defendants' part. Accordingly, on 23 November 1998, Mr Frewin applied for an order striking out the defendants' Defence on the grounds that the defendants were in contempt.
13. In the meantime, however, on 21 October 1998, the defendants had applied to strike out the Particulars of Claim on the ground that they did not reveal any cause of action, alternatively that they constituted an abuse of process. The defendants' application was supported by an affidavit from their solicitor, Mr Philip Pollecoff, in which he contended that in the absence of the Company as a defendant, the declaratory relief sought could not in any event be granted. He asserted that the claims for damages for conspiracy against the individual defendants were not properly or adequately pleaded and that the claim against the individual defendants was bound to fail, given the absence of any factual basis for the allegations and the absence of any allegation of loss and damage.
14. Both the applications, that is to say Mr Frewin's application to strike out the Defence and the defendants' application to strike out the Particulars of Claim, were listed to be heard by the district Judge on 13 January 1999. It is Mr Frewin's contention that the District Judge should have heard his application first on the basis that, as he contended, the defendants were in contempt, and that having struck out the Defence on that ground he was entitled to judgment. Not surprisingly, in my judgment, the District Judge did not accept that contention. She turned first to the defendants' application to strike out the Particulars of Claim, on the basis, no doubt, that this was the logical order in which to take the applications, since if the particulars of claim were struck out then there was no need for any Defence.
15. The District Judge apparently pointed out to Mr Frewin, in the course of the hearing, the difficulties he faced in consequence of his having chosen not to join the Company as a defendant, but Mr Frewin indicated that he intended nevertheless to proceed against the individual defendants. In the result, the District Judge acceded to the defendants' application and struck out the Particulars of Claim.
16. Mr Frewin appealed to the County Court Judge. In his notice of appeal, Mr Frewin asserted, in effect, that the District Judge ought to have heard his application first. That was the basis of his appeal as presented to Judge Bishop. Before the judge, Mr Frewin did not seek to argue the substantive issue whether the Particulars of Claim should have been struck out as failing to disclose a reasonable cause of action or as being an abuse. As the judge said in the course of his judgment. (Page 2 of the transcript, letter H):

'His [that is Mr Frewin's] notice of appeal confines itself to a complaint that the district judge refused to deal with his application to strike out the defence. At the end of the submissions today, he came back again to that point. Now it seems that he sees it as the main point of his appeal.'

17. The judge had no difficulty in rejecting Mr Frewin's submissions on the point. Later in his judgment (at page 4 of the transcript, letter E), he said this:

'Mr Frewin believes that the district judge dealt with the defendants' application first because it was issued first. I told him that that is clearly not right. Both applications, irrespective of the date of issue were listed for hearing at the same time before the same district judge and she was able to consider them in whatever order she thought right. In my earlier discussions [this is referring to discussions with Mr Frewin which took place in the course of the appeal hearing] I made the point that it would be logical to deal with the application to strike out the particulars of claim first because if that succeeded the action would fall and there would be no need -- in fact it would be irrelevant -- to consider the application to strike out the defence. That, in my judgment, is what happened on 13th January. It is clear from the note of judgment that the district judge gave very careful thought to this complicated matter and that she offered solutions to the plaintiff which he refused to take up. It was her decision that the particulars of claim -- in the form in which they remained, therefore had to be struck out.

'The strict form of the notice of appeal pays no attention to that decision. Nowhere does the plaintiff ask me to allow an appeal against that decision -- that the particulars of claim should be struck out -- and the whole of his notice of appeal is taken up with the complaint that she refused to deal with the application to strike out the defence.'

18. On that basis, the judge dismissed Mr Frewin's appeal.
19. In his written skeleton argument in support of this application, Mr Frewin sets out his account of what he contends to be an ineffective and illegal attempt by the defendants to remove him as a member and director of the Company; but he also returns to the procedural history, making once again the submission that the defendants, having failed (as he would have it) to comply with the orders for directions, were at the material time in contempt of court.
20. In my judgment, however, the proposed appeal against the judge's dismissal of his appeal from the District Judge's order will stand no chance of success. The judge clearly reached the right conclusion on the single argument presented to him, namely the argument that the District Judge ought to have considered Mr Frewin's application first. The District Judge was plainly entitled to deal with the two applications in whatever order she, in her discretion, thought fit and her decision to consider the defendants' application first was logical and sensible and cannot possibly be open to challenge. In any event, rule 52.13 of the civil procedural rules would preclude the grant of permission in this case since it raises no point of principle or practice, nor is there any other reason why the Court of Appeal should hear the appeal."
21. That then was Jonathan Parker LJ's decision. Of course he sets out in full detail the circumstances in which the application for permission to appeal arises.
22. This morning, Mr Frewin has made a number of points. Many of them are the same points with which Jonathan Parker LJ, and indeed the judge before him, dealt; some of them put the matter in a different way or provide additional material.
23. The first point that Mr Frewin alluded to was that, he says, there is now new material to impugn the position of the defendants in relation to the order of April 1998. The new material, as I understand it, is to be found in a Bill of Costs which they have submitted. Mr Frewin tells me that the defendants' solicitors had said that they had not complied with the order of April 1998 in order to save costs, but he tells me - and I am sure he is right - that the Bill of Costs makes claims for the costs of taking statements on, I think, three occasions; indicating, as I understand what he says, that the solicitors were not failing to comply with the order but, on the contrary, were incurring costs taking the statements. That is a detail which seems to me to make no difference to Jonathan Parker LJ's decision.
24. The next matter is not new. That is that Mr Frewin insists that he is in a position to be able to prove that there was a conspiracy in this case, and that he has people who have told him so and would, no doubt, come to court to prove that matter. That, as I say, is not, in substance, new. Mr Frewin referred this morning to the fact that he was told, and now understands, that an application to disqualify directors of companies from being directors cannot be made in Kingston County Court and, therefore, could not be made in the proceedings with which this appeal was concerned. Of course, that is right. He now understands that any such application would have to be made in the High Court and in the Companies Court. I do not think that is central to any decision that has been made in this case. He makes the point, again with which Jonathan Parker LJ dealt, that Judge Sturdy decided to hear the defendants' application first, and I have no doubt that Mr Frewin continues to maintain that the applications ought to have been taken in the other order. I, like Judge Bishop and Jonathan Parker LJ, consider that the district judge was entitled, and indeed obliged, to take these applications in the sensible and logical order, and the defendants' application was indeed the one which ought to have come first.
25. Mr Frewin repeats this morning his position that, although he was given the opportunity to ask to join the company as a defendant to these proceedings, he is convinced that he could not do that. He explains that to me by saying that under article 5 the board may dismiss a member, but under article 31 the company is empowered to dismiss a director. It was the board that dismissed him. Mr Frewin's position is that it is impossible for him to bring proceedings against the company, that is to say, according to his understanding, the people who had, very shortly before the occasion on which he was dismissed, elected him as director. He tells me that he has striven to deal with this matter over a long time. He maintains that the defendants knew that his case was a good one and that they could not establish their case, and that it was for this reason that they tried a purely procedural tactic of saying that his action was an abuse of the process of the court. He had no intention whatever of abusing the process of the court, and he reiterates that he has a strong case for conspiracy. He explains that the reason why he and the other defendants were at loggerheads was that he was, to use his expression, "asking too many questions" of a management which, he says, was running the company for their own sakes.
26. I am afraid to say that I do not think that any of this is material which impacts on the decision of Judge Bishop so as to make it arguably wrong. It seems to me that the reasons given by Jonathan Parker LJ for refusing permission to appeal are unaffected by these matters also.
27. In addition - and I think this is important - this would be a second appeal, and the Rules, and indeed an Act of Parliament, section 55 of the Access to Justice Act 1999, make it perfectly plain that this court cannot give permission to appeal unless it considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. I have explained that, as I said, to Mr Frewin. When I asked him what he said was the important point of principle or practice, he alluded to his contention that the conduct of the legal team for the defendants was "unethical", as he would have it, and such as would require investigation by the Court of Appeal. He said that this unethical conduct consisted of his being handed a bundle of documents and authorities only just before the hearing. He did not have time to read them or take them on board, and he did not really understand what was going on. He also says that the defendants' solicitors played, to use his expression, "ducks and drakes" with the court and the order of the court by constantly saying that they could not supply this and that, and saying that they had arranged interviews for statements to be taken when, only twelve days later, they applied to strike out his claim; and so forth. He ends by saying that he has striven to bring this case not only on his own behalf, but on behalf of other people as well.
28. I am sorry to say that I do not see that there is any basis for giving permission to appeal. I do not think that there is any important point of principle or practice. The matters to which Mr Frewin alludes are, in a sense, commonplace in litigation; but in any case they are not a point of principle. Although I fully appreciate that Mr Frewin regards this as a most important matter, and I have no doubt that for him it is, in the context of the rules there is, as I see it, no important point of principle or practice. Furthermore, it seems to me that this is a proposed appeal which would have no reasonable prospect of success, for the reasons which Jonathan Parker LJ gave, and I reach the same conclusion as he did; that is, that this application must be refused.
29. Application refused