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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 >> Foenander v Foenander [2004] EWCA Civ 1675 (10 December 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1675.html Cite as: [2004] EWCA Civ 1675

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE PRESIDENT
MR JUSTICE COLERIDGE
FD91DO3418

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2004

Lord Justice Wall:

Prefatory remarks

1. Mr. Johan Michael Richard Foenander (the applicant) applies for permission to appeal against two orders. The first in time is that made by the President of the Family Division, Dame Elizabeth Butler-Sloss P on 24 March 2004. The second is that made by Coleridge J on 22 June 2004. Both orders were made in the context of matrimonial proceedings between the applicant and his former wife, Carol Iris Foenander.
2. This case has a very long history, a knowledge of which is necessary for a proper understanding of the current applications. An indication of the length and complexity of the litigation is given by the volume of the documentation presented to the court. For the current applications, the applicant has produced four bundles of documents. The first contains 498 pages: the remaining three are continuously paginated from 1 to 1371. I make it clear that I am not going to refer to every event. The core events are, however, important and it is those which I propose to identify.
3. The oral hearing of the two applications for permission took place on 5 October 2004. The applicant's case was well and fully argued by Mrs. Eva Adshead, whom I allowed to advocate the applicant's cause as his McKenzie friend. However, because of the volume of the documentation and the complexity of the background, I decided to take an unusual course on 5 October. I allowed Mrs. Adshead to develop her argument for the whole of the time allocated for the applications. I then reserved judgment. This has given me the opportunity to consider the documentation and Mrs. Adhead's arguments (both oral and written) more fully. It has also, however, involved an element of delay in reaching my decision.
4. At the outset of the hearing of the two applications which are the subject matter of this judgment, Mrs. Eva Adshead queried my suitability to hear them on the ground that I had been in the same chambers as a number of participants in the case whom the applicant criticised. These included the President of the Family Division, Dame Elizabeth Butler-Sloss; Singer J and Mr. Christopher Wood of counsel. It is also a matter of public record that until the publication of the 17^th edition in 1997 I was the principal editor of Rayden & Jackson on Divorce and Family Matters of which district judge Maple was also an editor.
5. I explained to the applicant that specialisation at the London family bar inevitably meant that a number of judges came from the same chambers; that barristers from the same chambers were often against each other, and that the fact of a common stable had no impact of any kind on outcome. Mrs Adshead did not, as I understood her, invite me to recuse myself, but had she done so I would have refused. I made it quite clear to the applicant that if at the conclusion of the argument I took the view that an appeal from either or both orders had a real prospect of success, or that there was any other good reason to grant permission to appeal, I would grant permission. The identity of the judges making the orders at first instance was immaterial.

The orders to which the applications relate

6. On 24 Match 2004, the President made what is now known as a "civil restraint order" against the applicant in the following terms: -

1. The application of the Petitioner to set aside the Order of District Judge MAPLE dated 3^rd November 2003 is hereby dismissed

2. There be a Civil Restraint Order against the Petitioner in respect of these proceedings for a period of two years from 24^th March 2004, as more particularly set out below

(a) The Petitioner is forbidden for a period of two years from 24^th March 2004 from making any further application or issuing any new proceedings in the High Court (whether in the Royal Courts of Justice or a District Registry) or in any County Court, if those proceedings relate to the former marriage of the Petitioner and the Respondent or any financial relief or consequences of that marriage;

(b) If the Respondent wishes to make any application falling within paragraph 2(a) above he must first make an application in writing to the Senior District Judge of the Family Division or a District Judge of the Principal Registry nominated by the President or by the Senior District Judge (such application to be dealt with on paper alone) and in the event of refusal make an application to a High Court Judge in writing (such application to be dealt with on paper alone) and in the event of refusal that refusal shall be final and no further application shall be made to the Court of Appeal in respect of it;

(c) Any amendment or discharge of this Order (except by the way of an application for appeal this Order to the Court of Appeal made within fourteen days of the 24^th March 2004) may be made only by a High Court Judge and only after a written application for leave to do so as specified in sub-paragraph 2(b) above;

(d) Any written application under sub-paragraph 2(b) or (c) must be served upon the Respondent's Solicitors, Lawfords, six working days before it is made to the court;

(e) If any claim form, Notice of Application, Summons, Notice of Appeal or Petition which is within the scope of this Order is served on or given to any persons save for Lawfords without permission having first been obtained under sub-paragraphs 2(b) or (c) above that will be a Contempt of Court and the person served shall be required to respond or appear and the purported application or proceedings shall automatically stand dismissed and struck out;

(f) This Order shall not include an appeal to the Court of Appeal and shall not apply to any steps taken to enforce existing or future Orders or in relation to the Adjudication in Bankruptcy in respect of the Petitioner made in October 2002;

3. The Petitioner is to pay the costs relating to the hearing of the 24^th March 2004 and the hearing before Mr Justice KIRKWOOD dated 10^th November 2003 and any costs previously reserved in the proceedings.

4. There is to be Legal Aid Assessment of the costs of the Respondent to include not only the costs relating to the hearing of 24^th March 2004 but also those relating to the previous hearing before Mr Justice COLERIDGE dated 16^th December 2003, Mr Justice BENNETT dated 3^rd December, and Mr Justice KIRKWOOD dated 10^th November 2003, District Judge MAPLE dated 3^rd November 2003 and District Judge BRASSE dated 21^st March 2003.

7. On 22 June 2004, Coleridge J made the second order, which the applicant seeks to challenge. As the recital to the order makes clear, it was made without an oral hearing, and is in the following terms: -

UPON READING the file herein and the letter from the Claimant to Sir Ronald de Witt dated 19^th May 2004

AND UPON READING the order of the President dated 24^th March 2004

IT IS ORDERED THAT:-

1. Paragraph 2(a) of the order of the President dated 24^th March 2004 be amended under the Slip Rule to add the words "for the avoidance of doubt making any further application includes pursuing any existing and outstanding application already lodged".

2. The Claimant's application for leave to appeal the order of Costs of Judge Simons dated 3^rd September 2002 be and is hereby dismissed.

3. Any further or existing application in relation to this matter be dealt with only in accordance with paragraph 2(b) of the said order of 24^th March 2004.

8. The "slip rule" to which Coleridge J refers is rule 40.12 of the Civil Proceedings Rules 1998 (CPR). It is headed: "Correction of errors in judgments and orders" and reads: -

40.12 – (1) The court may at any time correct an accidental slip or omission in a judgment or order.

(2) A party may apply for a correction without notice.

I will return to the applicant's arguments on the use of the slip rule in this case later.

9. On 27 August 2004, the applicant wrote to Coleridge J's clerk asking for the judge's reasons for making his order of 22 June 2004. The judge replied on 23 September, the delay no doubt being caused by the summer vacation and the judge's absence from the Royal Courts of Justice. The judge's response was as follows: -

"Reasons for the Order of 22 June 2004

1. The file was referred to me together with a copy of the President's Order of 24 March 2004 and the letter to Sir Ronald de Witt. Having read them I concluded that the order of 24 March 2004 as drafted did not reflect the President's intention underlying paragraph 2 of the Order.

Accordingly I amended it under the slip rule. Having now read her judgment I am fortified in that view.

2. The application for leave to appeal Costs Judge Simons Order has no prospect of success.

10. The terms of the applicant's letter of the Chief Executive of the Court Service, to which the judge refers were as follows: -

" Re: My Formal Complaint dated 19^th February 2004 against the Principal Registry of the Family Division; In the matter of Foenander v Foenander 3418 of 1991

I have patiently waited a further 14 days from your last letter for you to produce to me your substantive reply and report, which, according to your earlier letter, should have been with me on 5^th March 2004, some 10 weeks ago.

Would you please ensure that I am in receipt of your substantive reply/report as referred to by Tuesday 25^th May 2004 in the absence of which I shall have to consider what action to take.

At this stage, I must put on record that I find it scandalous that since my formal complaint of 19^th February 2004 regarding such serious matters as refusal by the Court Service to list issued pending applications and theft of documentation off the court file which have put me in a position in which I am unable to defend and exonerate myself, you have to date not provided a substantive reply.

Please explain to me what difference it could possibly make to a Court Manager in making his report to you on which you rely because "the file is still active" as he has had since February 2004 to make the report i.e. some 3 months.

Further, he has had months, if not years, to reply to my letters with regard to the listing of my 18^th September 2002 application as set out in my letter to him dated 30^th January 2004 and copied to you and since my letter to him dated 26^th September 2003 and copied to you to reply with regard to the theft of valuable instruments/documents off the court file, the absence of such evidence/documents permitting the continuation of this miscarriage and perversion of justice.

With respect, do you consider these further delays legitimate, proportionate and reasonable?

I await your reply,

Yours faithfully

Johan MR Foenander

The essential history: the order made by district judge Maple on 12 December 1994

11. At page 35 of what I have designated volume 2 of the documentation, the applicant produces a detailed chronology from which I select the essential dates. The applicant and his former wife, Carole Iris Foenander (whom I will call "Mrs. Foenander") were married on 1 February 1969, and divorced by means of a decree absolute made on 24 January 1991. They had two children, both girls and now, of course, adult and independent.
12. For present purposes, it is sufficient to take up the story with the hearing of the applicant's and Mrs Foenander's cross-applications for ancillary relief in the divorce proceedings between them. These were commenced on 14 December 1990 (Mrs. Foenander) and 17 June 1991 (the applicant). The applications were heard by district judge Maple in the Principal Registry over four days from 11 to 14 July 1994. The district judge then heard argument during a further half day on 7 October 1994 and delivered his judgment on 12 December 1994.
13. The order made by the district judge on 12 December 1994 appears at page 91 of what I have designated bundle 1. It is in the following terms: -

"IT IS ORDERED THAT

1. The Petitioner do pay the Respondent a lump sum of £30,000 within two months of today, with interest to run in the event of non-payment by the due date.

2. Upon payment by the Petitioner of the said lump sum and (if applicable), interest, the Respondent's claims for periodical payments, secured periodical payments, lump sum and property adjustment orders be dismissed and it is directed that the Respondent shall not be entitled to make any further application in relation to the marriage for an order under Section 23(1)(a) or (b) of the Matrimonial Causes Act 1973 and it is directed that the Respondent shall not, on the death of the Petitioner be entitled to make an application under Section 2 of the Inheritance (Provision for Family Dependants) Act 1975.

3. The Petitioner's claims for periodical payments, secured periodical payments, lump sum and property adjustment orders be dismissed and it is directed that the Petitioner shall not be entitled to make any further application in relation to the marriage for an order under Section 23(1)(a) or (b) of the Matrimonial Causes Act 1973 and it is directed that the Petitioner shall not, on the death of the Respondent be entitled to make an application under Section 2 of the Inheritance (Provision for Family Dependants) Act 1975.

4. This is certified for the purpose of the Civil Legal Aid (General) Regulations 1989 that the lump sum payable to the Respondent is to enable her to purchase a home for herself.

5. The Petitioner do pay the Respondent's costs of this application including those reserved.

6. No order as to the Intervenor's costs

7. Costs of the Respondent and the Intervenor be taxed in accordance with the provisions of the Legal Aid Act 1988. Certificate for Counsel.

8. The taxation of these costs be reserved to District Judge Maple if available.

9. There be no order as to costs in respect of the order of the 5^th March 1991.

14. A few words of explanation are required. The Intervener to whom reference is made is the applicant's brother, who had an interest in the parties' former matrimonial home, a property at 154, Knolly's Road, London SW16 2JU (154, Knolly's Road). As is clear, the order provided for a clean break on the payment by the applicant of a lump sum of £30,000, and paragraph 4 was inserted because Mrs. Foenander was legally aided. Paragraph 4 would enable her costs, insofar as they were not recovered from the applicant to be charged against any property she acquired. As it transpires, however, the lump sum has never been paid, nor have the costs.
15. It is the order made by the district judge on 12 December 1994 which provides the basis for nearly everything which follows. Fortunately, there is a transcript of the district judge's judgment, which runs to some 28 pages of typescript. I have, of course, read it more than once, and I have no hesitation is saying that it strikes me as a careful and conscientious piece of work. It was not an easy case for the district judge to try, for a variety of reasons. Apart from the question of the applicant's lack of disclosure, the applications were rendered difficult by the condition of 154, Knolly's Road and the need to quantify the intervener's interest in it.
16. In the light of what follows, it is important to note that the district judge found Mrs. Foenander credible, but was not "over impressed" by the applicant. He was also critical of the applicant's lack of disclosure, which was sufficiently serious to cause the district judge to say that it had rendered it more difficult to ascertain what the applicant's assets were. There were also difficulties over the applicant's representation. What seems to have happened is that he applicant was represented for the hearing, but parted company with his lawyers at the end of the evidence. This meant that fresh counsel had to make submissions pm the applicant's behalf without having had the conduct of the case.

The appeal to Singer J

17. In any event, the applicant was dissatisfied with the result, and appealed to Singer J, who, after a hearing lasting two days, delivered judgment dismissing the appeal on 5 February 1996. Once again, I have a transcript of Singer J's judgment. The applicant was represented on the appeal by counsel. Singer J conducted a careful review of the district judge's judgment and also heard oral evidence from the applicant, with whom he was not impressed. The judge described him as making aspersions which the judge hoped "with reflection he will recognise are entirely without reason". The judge was critical of the applicant for his expenditure on legal costs since the hearing before the district judge, and described as not attractive the argument that the applicant could not, as a consequence of this expenditure, pay the lump sum ordered by the district judge.
18. Singer J then examined the applicant's allegations of non-disclosure against Mrs Foenander. He looked, in particular, at an allegation that Mrs. Foenander had failed to disclose a Halifax Building Society account; alternatively that an account opened in the name of her daughter was, in reality, being used by her. The judge had delayed the judgment to enable documentation to be obtained from the building society. The judge deals with this account, and concluded that none of the matters individually raised by the applicant either in relation to his own circumstances or those of Mrs. Foenander detracted from the overall view of the case, which the district judge concluded he had before him. Furthermore, nothing that had happened since caused Singer J to take a different view. The district judge had been entitled to reach the conclusion he had. Singer J concluded, accordingly, that the appeal should be dismissed.

The applications for permission to appeal to the Court of Appeal

19. The matter did not rest there because the applicant applied for permission to appeal to this court. The application was refused by Thorpe LJ on paper on 24 October 1996 on the basis that none of the applicant's arguments in the draft notice of appeal had the least prospect of success. The applicant then renewed the permission application at an oral hearing in this court conducted by leading counsel on his behalf before Waite and Potter LJJ on 17 April 1997. They dismissed the application.

Summary as at 17 April 1997

20. It will thus be apparent that the judgment of district judge Maple has been through the entire appellate process, and has been examined by four different judges (a High Court judge and three members of the Court of Appeal) in three appellate processes. All four judges were of the opinion that the district judge's judgment was sound, and any appeal against it unmeritorious.

Subsequent events

21. That, however, was not the end of the litigation process. Unsurprisingly, Mrs. Foenander took steps to enforce the order. On 16 October 1997, the applicant was committed to prison for 28 days by HH Judge Pearlman on a judgment summons issued by Mrs. Foenander. There had been a previous suspended committal order initially made by HH Judge Callman on 29 October 1996 pending the outcome of the applicant's appeal to the Court of Appeal. Neither order, however, produced any payment, and with the exception of one sum of £4, 972 obtained by way of a garnishee order on 6 June 1998, Mrs Foenander has been unsuccessful in obtaining any payment. On 28 March 2000 she obtained a charging order on the former matrimonial home. However, Mrs. Foenander's application for possession of the property in order to achieve a sale has not been pursued because the applicant was declared bankrupt on 30 September 2002. Mrs Foenander says this was on the application of one or more of his previous solicitors, and relates to unpaid legal fees. The applicant disputes this. He says Mrs. Foenander made an application for possession in the Lambeth County Court which was "fatally flawed". He says the matter was then transferred to the High Court where the Master gave directions which Mrs. Foenander has not followed. Mr. Foenander points out that debts in family proceedings are not provable in bankruptcy, and remain outstanding, notwithstanding the bankruptcy.
22. The applicant is thus today in the unattractive position of not having obeyed the order of the district judge, and of not having paid Mrs. Foenander the lump sum due under the order of 12 December 1994, an order now nearly 10 years old.

The attempts to set aside district judge Maple's order of 12 December 1994:

(1) The hearings before district judge Brasse

23. Unable to appeal the district judge's order of 12 December 1994, the applicant has, instead, attempted to have it set aside. These attempts began with an application dated 30 August 2002. That application was heard by district judge Brasse in the Principal Registry on 21 March 2003. At page 521 of Bundle 3 there is a note of the district judge's judgment. The applicant was in person, and Mrs. Adshead spoke for him. The district judge identified three grounds upon which the application was being made: -

"The irregularity relied upon falls under several headings. First at the original hearing, submissions were made relating to the non-disclosure of information and documents by the wife. If disclosure had been before the Court, it would have made a material difference to the outcome. 13 accounts were suppressed. Particular reliance placed on suppression of accounts at a building society held between 1991 and 1992. Also bank and post office accounts.

The second ground of attack is even more serious. It is to put it broadly, that Counsel for the wife, Christopher Wood, District Judge Maple and Mr Justice Singer who heard the appeal from the District Judge conspired in or around July to pervert the course of justice by in effect pre-judging the hearing that application to be heard in a way unfavourable to Mr Foenander.

The third ground of attack does not relate to the hearing but to the conduct of the legal representatives of Mrs Foenander. Mr Foenander says that his barrister was incompetent and failed to follow instructions. Counsel for the wife was racially motivated against him and that he or Solicitors tampered with evidence before the Court…. Documents not put before the Court.

The grounds are supported by a plethora of what is described as evidence. (Foenander, Bothwell and Glynn). Mr Bothwell has such an encyclopaedic knowledge that I allowed him to sit in Court. He in affidavit argues the case as if he were an advocate. Mr Glynn, who exhibits the bulk of the pleadings, does likewise. The tone and content of Mr Glynn's evidence is argumentative rather than evidential. Both affidavits are based on study and the evidence of others. That being said, they have provided me with a wealth of information as to understanding …"

24. Having dealt with the history, District Judge Brasse gave the following reasons for refusing the application to set aside district judge Maple's judgment: -

"I now return the grounds. First, non-disclosure of documents. In my judgment, it is plain that the husband believed documents existed before District Judge Maple's judgment. It is clear that the wife was accused of non-disclosure. It is clear that District Judge Maple accepted the wife's evidence and found the husband guilty of non-disclosure. Non-disclosure was re-opened before Singer J. He considered and dismissed the appeal. It was dismissed again by Thorpe LJ and the full Court of Appeal. I consider the ground of non-disclosure fully explored by the Court and can find no further grounds for consideration. In addition, this application is made nine years after the hearing and nearly six years after. Not within reasonable time and applying order 37.5.2 I should not allow the application."

25. For all its imperfections, this note of the judgment makes the basis upon which district judge Brasse refused the application very clear. On 6 June 2003 district judge Brasse refused to set aside the order he had made on 21 March 2003 and to restore the application to district judge Maple.

The attempts to set aside district judge Maple's order of 12 December 1994:

(2) The hearings before district judge Maple

26. The applicant then applied to district judge Maple himself on 3 November 2003 for an order discharging the order of 12 December 1994. The district judge dismissed the application. On this occasion I have a transcript of the judgment of the district judge, from which it is quite clear that he considered the case carefully. I do not propose to reproduce the bulk of his judgment, which is available on the record. Having set out the history, the district judge deals immediately with the allegation made by the applicant that there were undisclosed accounts and a forged bank statement. Over the next six pages of single spaced typescript he deals with the applicant's allegations in detail. He describes how he had been "led through an exercise to try to indicate that there are other Nat West accounts that have not been disclosed" at the hearing. He is not impressed. He says that the indications of other accounts are "slight in the extreme" and that if these matters had any relevance, that was in 1994, not 2003.
27. In paragraph 15 of that judgment, he district judge deals fully with the applicant's argument about the Calderbank correspondence, to which I need not return.
28. The district judge is particularly concerned by two affidavits sworn by Mr. Lawrence Bothwell. As to these, this is what he says: -

"What gives me great cause for concern in this case, and is something which I have to refer to, are the two affidavits of Lawrence Bothwell. I sincerely hope that Mr Bothwell knows precisely what he is doing because he is treading on very serious and difficult grounds and ones where I can assure him, if he is not careful, he will find himself in deep, deep trouble. He accuses all kinds of people of all kinds of things. He seems to think that there has been some sort of meeting between Christopher Wood of counsel, myself and Singer J. I have no idea why he thinks that we should need to meet about this case. It is beyond belief that we should even wish to speak about this. He is very vociferous in his accusations. He talks about secret meetings … a secret meeting took place and the Maple judgment was in accordance with a secret meeting? Singer J unlawfully procured the appeal to himself? He even includes District Judge Brasse in all of this. I find it unbelievable. I take great exception to the way he has sworn these affidavits and I am considering whether they should be referred to the Director of Public Prosecutions so that action can be taken. Both these affidavits are littered with such references and also to Messrs Lawfords. There seems to be some campaign against Messrs Lawfords."

29. The district judge then dismisses the allegation that Mrs. Foenander's solicitors had behaved improperly, and concludes his judgment with the following paragraph: -

"I am told that the husband is still living in the house with his brother and it is still with the difficulties that I found. It had serious underpinning problems and indeed, he has now been declared bankrupt. It seems to me, having heard carefully what has been said, having seen the mass of papers that have been presented to me, that I quite understand how Mr Foenander has found himself in this position. He will not listen, he will not take note. He has an order against him which clearly he did not like or agree with, I do not have any difficulty with that. He appealed it. I have no difficulty with that either. He also says that it has been explored and finished and yet still he is pursuing this litigation still with applications to the court and the time has come for it to stop. There are no grounds at all for re-opening the original decisions of December 1994. I can find no lever where I could just say that justice demands the case to be re-opened so the application is dismissed."

The application for a civil restraint order

30. No doubt encouraged by the final paragraph of this judgment, Mrs. Foenander applied for what used to be called a Grepe v Loam (1887) 37 Ch D 168 order and is now known as a civil restraint order, and on 10 November 2003, Kirkwood J gave directions in the application. On 18 November 2003, the applicant sought to appeal district judge Maple's refusal on 3 November 2003 to set aside the order made on 12 December 1994, and on 16 December 2003, Coleridge J gave directions which fixed a hearing for 24 March 2004, with the applicant's appeal against the order made by district judge Maple on 3 November 2003 to follow if the civil restraint order was refused.

The order made by the costs judge (Master Simons)

31. Before turning to the decision of the President on 24 March 2004, there is, I think, one further thread in the proceedings, which it is necessary to mention. This relates to the costs of the proceedings for ancillary relief. Mrs. Foenander's solicitors were late in lodging their bill for assessment, and on 3 September 2002 before costs judge Simons, the claimant took the point. Mrs. Adshead, on his behalf, argued that in the light of the delay, all Mrs. Foenander's costs should be disallowed.
32. The costs judge did not agree. He pointed out that the applicant had not made an application to the court seeking a detailed assessment of Mrs. Foenander's bill. As a consequence his jurisdiction was limited to disallowing interest. Accordingly, he disallowed all interest from 24 June 1998. The costs judge also had before him on 3 September an application by the applicant to adjourn the detailed assessment pending his application to set aside district judge Maple's order of 12 December 1994. The district judge refused that application, and gave reasons for doing so (Bundle 1, p 177). The costs judge also refused permission to appeal (Bundle 1, p 179). The applicant complains that this appeal from an order now more than two years' old has never been listed for hearing, and remains outstanding. I shall deal with this point in due course.

The hearing before the President on 24 March 2004

33. I now come to the hearing before the President on 24 March 2004. I have both a transcript of the hearing, and a transcript of her judgment. I turn to the latter. She dealt first with the application to set aside the order of district judge Maple made on 12 December 1994. Having summarised the history, she pointed out that the order made by District Judge Maple on 12 December 1994 had been through the entire appellate process, and that it was not for her, sitting as a High Court judge to "second guess" any of the matters with which the applicant was dissatisfied. She stated, however, that there were two matters, which, it was said, had arisen since the original hearing before the district judge, namely non-disclosure in relation to Halifax Building Society accounts, and the alleged forgery of a National Westminster bank account. She pointed out that the question of the Halifax account had been before Singer J, and that it was too late for the High Court to be concerned with it. As to the forgery issues, she was unimpressed with the evidence, and said that it did not have sufficient credibility for her to take it into account. There was nothing from the bank supporting the proposition that the documents were forged. Moreover, the allegation had not been made until 2002. Even if, however, she had taken a different view, she thought it would have made no difference. She said: -

"15. Thirdly, even if I did, the order of District Judge Maple was £30,000 in relation to a marriage lasting something in the region of twenty years, as a one off payment, and no further financial relief. The possibility that over a period of a year or so sums of £300 may or may not have gone into a bank account, was not the sort of figure that apart from disapproval if it was true, would be likely to have made a great deal of difference, in my judgment, to the outcome of the case.

16. For those reasons, it seems to me that Ladd v Marshall does not begin to be taken into account, and I cannot see that there is any realistic prospect of success from the decision of District Judge Maple, who gave it a degree of time, effort and attention that was extraordinarily generous to an application made many years after the hearing was completed before the District Judge… and unsuccessfully appealed all the way through. District Judge Maple was generous in his time to Mr Foenander, gave a great deal of time and wrote a long and careful judgment."

34. The President then considered the case for the civil restraint order. She identified three objections advanced on the applicant's (that is Mr. Foenander's) behalf. These were: -

"17. I turn now to whether or not there should be a Civil Restraint Order. On behalf of the husband, it is said three points: one, that there has been no stamped application; secondly, that there has been an absence of a plethora of applications; thirdly, at no stage has anyone said in the orders that the application was totally devoid of merit. Those are really the main reasons for suggesting that Mr Foenander should not have this order made against him together with the perfectly reasonable matter that he might be precluded from defending any applications for enforcement of the order, which should in my view quite clearly be excluded from any order that might be made."

35. The President was not impressed with any of the points she had identified. Her conclusion is expressed in the final three paragraphs of her judgment: -

"I am sad to say that despite Mr Foenander going through the appellate processes which he was entitled to do between 1994 and 1997, he starts this matter all over again when having searched to get some additional evidence in 2002. Although it is all part of the same application--- and I understand the point made by his McKenzie friend – that in my view is not the answer to the fact that there have now been before District Judge Brasse on 21^st March 2003 an application dismissed, then there is a renewal of that application, it is then heard on 6^th June 2003 and that is dismissed, then on 3^rd November an application to set aside District Judge Maple's original order of 1994 (all part and parcel of the same issue) was dismissed, and then the applications to this court in relation to what was then called a Grepe v Loam order.

Mr Foenander is pursuing a resistance to an order, which was completed by the appeal process in 1997. We are now in 2004. He has got new energy. He has got new evidence which I have explained in my judgment is not of value and is not acceptable. He has an appeal, which is an appeal from District Judge Maple's dismissal of the application to set his original order aside. That appeal, in my judgment, has no merit whatever – totally devoid of merit. The point has now come, in my judgment, to a requirement that the courts should be given a little peace from Mr Foenander making applications to try and set aside the order made by District Judge Maple, which has been upheld consistently and was made as long ago as nearly ten years – that is to say December 2004

The Court of Appeal in Bhamjee referred to a nuisance that these activities represent to the judges, lawyers and staff of the court; referred to hopeless applications; referred to the way in which there must be some control over endless applications. My view in this case, that control should be imposed now, and not in, say twelve months time, because the cost of coming to court is not only a cost to the public in legal aid which the former wife is receiving for these cases to continue, and that bill is continuing, it is the cost of the court staff, the cost of the judge, the use of a court for this which then delays other cases being heard. This is unjust to other members of the community whose litigation has to go through these courts, and whose litigation is held up by this sort of application, and unjust to the enormous bill of the administration of justice which is properly spent on some cases, and is not appropriate to be spent anymore on Mr Foenander's case."

The applicant's attack on the President's judgment

36. In her skeleton argument prepared for the permission applications before me, the first point taken by Mrs. Adshead is that the order as sealed does not reflect a true construction of the order pronounced in court. Furthermore, she submits that any discussion of the terms of the order after 24 March and without the involvement of the applicant constitutes a breach of his rights under articles 6(1) and 7 of the European Convention on Human Rights.
37. I do not think there is anything in this point. It is commonplace (as happened here) for a judge to invite counsel to draft an order reflecting the judgment, which the judge has given. It is plain that the President was alert to the possibility of any injustice to the applicant both by her comments in the final paragraph of page 386 of bundle 2 and in the manner in which she described the operation of the order on page 388. Contrary to the assertion made by Mrs. Adshead in her skeleton argument that civil restraint orders are "a new toy that the judiciary together with the officers of the court have created to silence court users of their choice", the judiciary guards jealously the right of access which ordinary citizens have to the courts. Such orders are, in my experience rare.
38. There is on the court file a letter from one of the associates in the Family Division to the applicant dated 24 September 2004 explaining that the draft of the order was lodged by counsel, referred to the President for her approval on 25 March 2004 and drawn in accordance with her directions. These procedures seem to me entirely proper. Far from breaching the applicant's rights, they are a demonstration of the care, which is taken in the drafting of such orders.
39. Mrs Adshead next points out, and in this I agree with her, that there is a difference in procedure between an application for a civil restraint order on the one hand and a civil proceedings order under section 42 of the Supreme Court Act 1981 on the other. The latter requires the intervention of the Attorney General. The difference, of course, is that the former relates specifically to the proceedings, which are currently on foot, and restricts further applications in those proceedings. The latter relates to all proceedings of any kind. Thus paragraph 2(a) of the President's order forbids the applicant from making any further application or issuing any new proceedings "if those proceedings relate to the former marriage" of himself or Mrs. Foenander or "any financial relief or consequences of that marriage". Thus, for example, were the applicant to be so unfortunate as to be involved in a traffic accident and wish to bring proceedings for negligence against the other driver, there is nothing in the President's order to prevent him.
40. Mrs. Adshead's next point is that there was no formal notice of application or summons in support of the civil restraint order. Since the order is semi-criminal, she argued, formal procedures should be strictly adhered to.
41. I do not disagree with this submission in principle, although in my judgment, civil restraint orders are not "semi-criminal". They have nothing to do with the criminal law. However, the purpose of a summons or notice of application is to enable the person against whom the relief is being sought to know what is being alleged and to enable him or her to prepare a defence. Committal proceedings for contempt of court, which can result in imprisonment, are quasi-criminal, and the criminal burden of proof is applied in deciding whether or not a contempt of court has occurred. But in appropriate cases, the strict procedural rules as to notice and service can be waived, provided no unfairness is caused to the alleged contemnor. Here, the applicant can have been in no doubt whatsoever about what was being sought. He had an abundance of time to prepare, and was in no sense taken by surprise by anything which occurred at the hearing before the President. In my judgment, the President was entirely correct in proceeding with the hearing.
42. Mrs. Adshead next alleges that the absence of a number of documents from the court file has prejudiced the applicant's preparation and results to a breach of the rules of natural justice and perversion of the course of justice, which, she argues, vitiates the proceedings ab initio.
43. Whilst it is always regrettable if documents which should be on the court file go missing, I am quite unable to see that this has prejudiced the applicant in the presentation of his case, let alone perverted the course of justice and rendered the proceedings void ab initio, as Mrs. Adshead alleges. I have already commented that the papers put forward for this application total more than 1,850 pages, and I am quite unable to see how the absence of the documents which the applicant identifies in his correspondence with the Principal Registry prejudices the proper presentation of his case.
44. I pass over Mrs. Adshead's next submission, which, in my judgment serves to underline why the President thought that the civil restraint order was necessary. The suggestion that there was a judicial conspiracy between Singer J, district judge Maple and Mr. Christopher Wood of counsel to "sort out" (the applicant's word in his letter of 24 March to the court manager (2/44)) the applicant's case and to suppress Mrs. Foenander's alleged dishonesty is not merely far-fetched; there is not even the slightest evidence for these allegations. That the applicant has convinced himself of their truth I do not doubt, but that it quite a different matter. That he is not minded to accept any decision by the court, which does not agree with him, is, I think, illustrated by the fact that Mrs. Adshead's submission is that "the court is put on notice under sections 328 and 330 of the Proceeds of Crime Act 2002".
45. Mrs, Adshead next casts doubt on the lawfulness of civil restraint orders. I have already dealt with that argument. She then criticises the President for not having read the papers, of acting on only limited information, of having had the case switched to her at the last moment, of having been to a meeting before the court sat and of having to go to another meeting at 1.00pm. These factors, it is said, amount to a breach of the applicant's article 6 rights.
46. As to the transfer of the case from Singer J to the President, the latter in the transcript of the hearing makes clear her understanding that the matter had been listed before Singer J, but that he had quite properly recused himself on the ground that he had heard the original appeal from the decision of district judge Maple (transcript, volume 2 p. 425). The applicant had himself invited Singer J not to hear the matter in any event, and in my view the judge was plainly right to recuse himself. There can, accordingly, be no criticism of the fact that the matter was transferred to the President.
47. The allegation that the hearing was defective because the President had not read all the papers is not, in my judgment, arguable. What documents a High Court judge pre-reads is a matter for the judge. The President is an extremely experienced tribunal, having herself been a district judge for 9 years before spending 9 years on the High Court bench before her promotion to the Court of Appeal. The fact that she had not read every piece of paper in the voluminous documentation would only vitiate her decision if, as a consequence, she failed to take into account information which was necessary to that decision with the result that the judgment was rendered defective in some material way.
48. I have, of course, read the transcript of the hearing before the President. It is very clear that the President listened carefully to everything Mrs. Adshead had to say, and at the conclusion of her argument complimented her on the way she had advocated the applicant's case. Mrs. Adshead was given every opportunity to advance the applicant's case, and did so. I cannot detect any element of unfairness in the hearing. The President plainly had a clear grasp of the essential issues in the case, and amply sufficient material on which to make her decision.
49. It is, of course, the case that, before considering a civil restraint order, the President looked first at the prospects of an appeal from district judge Maple's refusal on 3 November 2003 to revisit his order of 12 December 1994. But in my judgment this was correct. As the President herself pointed out, it would manifestly have been wrong to make a civil restraint order if the applicant had outstanding a meritorious appeal against the order of 3 November 2003. I shall deal separately with the costs appeal against the order of costs judge Simons.
50. I have already dealt with the other procedural points raised by Mrs. Adshead. In my judgment, the President was entitled to make a civil restraint order on the facts presented to her. She properly excluded from its operation applications in the bankruptcy proceedings, and the applicant's ability to defend himself against any applications made against him. She took the view, for which there was abundant material, and with which, having read the papers, I fully agree, that the continuing pursuit of an attempt to re-open the order of district judge Maple made on 12 December 1994 was pointless and a waste of the court's resources. In my judgment, an appeal against her decision would have no prospect of success.
51. I therefore refuse the applicant's application for permission to appeal against the President's order made on 24 March 2004.

The order of Coleridge J

52. The applicant complains that the President did not deal with his application for permission to appeal against the order of Master Simons, costs judge, made on 3 September 2002. He also complains that this application for permission has never been listed. He therefore complains that it was wrong of Coleridge J to dismiss his application for permission to appeal against that order without hearing him on it. It is, I think, convenient to deal with this argument in the context of Coleridge J's order made on 22 June 2004 generally.
53. The terms of paragraph 2(a) of the President's order of 24 March 2003 forbid the applicant from "making any further application or issuing any new proceedings…if those proceedings relate to the former marriage" of the applicant and Mrs. Foenander.
54. In identifying the applications which it should cover, the President said the following at paragraph 25 of her judgment: -

"I make the Civil Restraint Order for the period of two years. That Civil Restraint Order is not to include any application to the Court of Appeal, because that is a matter for the Court of Appeal, and in my judgment it is not appropriate that a High Court judge should prevent Mr Foenander from going to the Court of Appeal. It will not in any way affect any proceedings in the Bankruptcy Court or connected with his Bankruptcy Order. It will not include any proceedings for enforcement of the £30,000 order, or any application by Mr Foenander in defence of any application made to enforce that order. What it will apply to are any applications of any sort in any court which apply directly to the ancillary relief proceedings, the order of District Judge Maple, and any consequences from that order, other than bankruptcy or enforcement, or other than going on to the Court of Appeal." (my emphasis)

55. Coleridge J took the view that the President intended to include within the civil restraint order the pursuit by the applicant of any outstanding applications. In the light of the passage from her judgment, which I have highlighted, that is a perfectly logical, indeed in my view, the correct construction. The President plainly took the view that the applicant's attempts to set aside the order of district judge Maple of 12 December 1994 were a substantial waste of the court's resources and stood no prospect of success. She wanted to include within the Civil Restraint Order "any applications of any sort in any court" relating to it. As I have already made clear, that was plainly a view, which she was entitled to hold and to put into effect.
56. In my judgment, the phrase in the President's order, "making any further application" taken without reference to her judgment is ambiguous. It could mean (1) making a fresh application – for example a further, but new application to set aside the order of 12 December 1994; or (2) making a further application to the court in an outstanding application already before the court. Coleridge J's order clears up that ambiguity. He thought "further application" meant any application, as the President's judgment makes clear. In my judgment, that is the correct view. Another way to test the matter is to ask: if the President's order had been originally worded as it is now is following Coleridge J's amendment, could the applicant have complained about it? I do not think so: certainly, had it been so worded, I would still have refused permission to appeal against it.
57. Although it is of course the case that the "slip rule" is primarily designed to correct typographical or grammatical errors, it is permissible to use it to use it to amend a court order to give effect to the intention of the court: - see Bristol-Myers Squibb v Baker Norton Pharmaceuticals (2001) EWCA Civ 414. As this court said in paragraph 25 of that case: -

… Once the order is drawn up any mistakes must be corrected by an appellate court. However it is possible under the slip rule to amend an order to give effect to the intention of the Court.

58. I must, I think, also maintain a sense of proportionality here. If I were to grant permission to appeal, I do not think that the applicant's appeal would stand any reasonable prospect of success. The full court, in my judgment, would almost certainly take the view that the civil restraint order was designed to cover all applications in the proceedings for a period of two years, including any application, which were pending.
59. I understand that the applicant feels a sense of grievance that the amendment was made administratively, as was Coleridge J's dismissal of his application for permission to appeal against the orders of the costs judge. But in my judgment, that grievance is misplaced. Coleridge J was dealing with the matter in the context of the applicant's letter to the chief executive of the Court Service dated 19 May. That complained (inter alia) of the failure to list what the applicant describes as "my 18 September 2002 application". The judge read the file. He plainly looked at the application for permission to appeal the order of costs judge Simons carefully, decided that it had no merit and should not be listed but dismissed. In my judgment, that is something Coleridge J was entitled to do, and having read the documentary material myself, I would have come to the same conclusion.
60. In any event, as a matter of jurisdiction, it is clear that Coleridge J's dismissal of the permission to appeal against the order of costs judge Simons is final, and that no appeal lies from it to the Court of Appeal: - see Riniker v University College London [2001] 1 WLR 13. Irrespective of the merits, therefore, on which I would have refused permission in any event, I have no jurisdiction to interfere with paragraph 2 of Coleridge J's order.
61. In these circumstances, the applicant's application for permission to appeal against the order of Coleridge J made on 22 June 2004 will likewise be dismissed.