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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Peter Gaisiance v Mayor & Burgess of London Borough of Southwark [2023] EWHC 202 (KB) (12 January 2023) URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/202.html Cite as: [2023] EWHC 202 (KB)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 January 2023

MRS JUSTICE EADY :

Introduction

1. This is an oral hearing of the Applicant's renewed application for permission to appeal against the order of his Honour Judge Luba KC, made on 26 August 2022. The application for permission was initially considered on the papers by the Honourable Sir Stephen Stewart, but refused for the reasons provided in his order seal dated 2 December 2022. Although there are a number of proposed Respondents listed in the Applicant's grounds of appeal, the application for permission relates to the decision of his Honour Judge Luba KC in proceedings between the Applicant and the London Borough of Southwark, the first of the named Respondents. When I refer to the Respondent in this judgment, I am therefore referring to the London Borough of Southwark.

The background

2. This matter has a lengthy history from which I have sought to distil the most relevant dates and events as follows: On 4 July 2018, a civil restraint order ("CRO") was imposed on the Applicant under which he was:

"Forbidden for a period of two years from the date of this order (until 4 July 2020) … from issuing any new proceedings against any Defendant in the High Court of Justice or in any County Court in England and Wales, or from issuing any application, appeal, or other process in this action or in any other action in any court without first obtaining permission.".

3. On 7 May 2019, an order for possession was made on the Respondent's application before the Clerkenwell & Shoreditch County Court. The order related to premises at 99 Cronin Street, London, SE15, of which the Respondent is a freehold owner and in which the Applicant resides in a self-contained flat under a secure tenancy agreement. It seems that the Applicant had fallen into arrears of rent and an order for possession was made by District Judge Manners on the basis of arrears that at that stage totalled £7,810.39.
4. On 21 May 2019, the Applicant applied for a suspension of the order for possession and also sought permission to pursue five counterclaims. By order dated 18 July 2019, District Judge Sterlini transferred the Applicant's application to the High Court for consideration as required by the CRO. Under orders dated 19 August and 2 October 2019, Master Gidden refused permission. The Applicant applied to set aside the first refusal and appealed against the second. By order dated 20 November 2019, Mr Justice Stewart granted the Applicant permission to pursue his application of 21 May 2019 but restricted permission in respect of his counterclaims to only one aspect. The matter duly returned to the County Court and on 22 January 2020, District Judge Manners dismissed the Applicant's application. The Applicant then had 21 days to issue any appeal against that decision.
5. It appears that on making her order on 22 January 2020, District Judge Manners reminded the Applicant that if he wished to seek to appeal against her decision, he would first need the permission of a nominated High Court Judge in the light of the still extant CRO. It is the Applicant's case, accepted by his Honour Judge Luba KC, that he promptly presented an application to the High Court for permission to bring an appeal in the County Court against District Judge Manners' order. Unhappily, the High Court failed to process the Applicant's application and, in March 2021, his papers were returned to the Applicant without his application having been addressed (although, after 4 July 2020, that application had been unnecessary as the CRO had expired on that date).
6. In due course, the Respondent obtained a Warrant for Possession and a Notice of Eviction (dated 28 September 2021) was issued, with notification of a date for eviction on 27 January 2022. On 19 January 2022, the Applicant applied to suspend the Warrant for Possession. This matter then came before me in the interim applications court and, for the reasons set out in my order dated 26 January 2022, I granted the stay of the warrant pending the determination of the Applicant's application (out of time) for permission to appeal District Judge Manners' order of 22 January 2020.
7. On 28 January 2022, the Applicant issued his application for permission to appeal against District Judge Manners' order, which included a request for an extension of time. Meanwhile on 24 January 2022, the Respondent had written to the court to inform it that it no longer wished to pursue enforcement of the possession order as it had received £10,000 from an arrears fund which significantly reduced the arrears of rent. I understand that on 7 March 2022, the Department of Work and Pensions then provided a refund to the Applicant of some £13,999, from the proceeds of which the arrears of rent were extinguished. The Applicant's application before the County Court remained extant however, and on 20 May 2022, his Honour Judge Luba KC gave directions for the progression of this matter including a direction that the Applicant should file and serve a witness statement in support of his application to extend time:

"… explaining why the appeal was not filed (a) in time and (b) earlier than the date it was filed.".

8. The Applicant duly filed a witness statement with the County Court on either the 30 or 31 May 2022. Although there seemed to be an argument that it had been served some five days late on the Respondent, an extension of time was in any event granted.
9. This, therefore, was the background against which his Honour Judge Luba KC approached the Applicant's applications at a hearing on 26 August 2022. The Applicant represented himself at that hearing; the Respondent was represented by counsel.

His Honour Judge Luba's decision

10. His Honour Judge Luba KC first considered the application for an extension of time. As he observed, the Applicant had only presented his Appellant's Notice, seeking to challenge the 22 January 2020 order of District Judge Manners, on 28 January 2022. On its face, the application was very significantly out of time. Accepting that the Applicant had promptly presented an application to the High Court for permission to bring his appeal and that this had then "got stuck" in the High Court, his Honour Judge Luba KC identified the key question as being:

"What did Mr Gaisiance do once he had got his appeal papers back and once he knew, which he did know, that the civil restraint order had expired some seven months earlier?".

11. As there was nothing in the Applicant's witness statement that addressed the period from 16 March 2021 (when his papers had been returned by the High Court) to 28 January 2022 (when he issued his Appellant's Notice), this was a matter that the learned Judge sought to explore with the Applicant at the hearing, recording as follows:

"15. I pressed Mr Gaisiance in his courteous address to me to show me the evidence explaining that significant delay. He gave me three explanations. The first was that he believed it was right first to get an explanation from the High Court as to why there had been a block or holdup from January 2020 to March 2021. His second explanation was that he was having difficulties communicating with the County Court system as a result of problems in communication with the courts that he alleged had taken place as a result of the lockdown. The third reason he gave is that the court was not responding to his communications both, as I understood him, in respect of the High Court and in respect of this court.".

12. His Honour Judge Luba KC considered there was nothing of merit in any of those explanations. He found that the Applicant had been misguided in wasting time pursuing the question why there had been a holdup in the High Court and should have got on with his appeal before the County Court, in particular given that when his documents had been returned by the High Court there was no longer a CRO in place and therefore nothing to inhibit him going straight to the County Court.
13. As to the Applicant's reliance on the position during lockdown, the learned Judge disagreed finding that he could have presented his Appellant's Notice by post or by DX, both of which continued to function throughout the pandemic. As for the suggestion that the courts had been closed, that was simply not the case: the County Court had been operating throughout. Having thus concluded that there was no good explanation for the delay from 16 March 2021 to 28 January 2022, his Honour Judge Luba KC refused the application to extend time and the Appellant's Notice was duly struck out.

The application for permission to appeal, submissions, discussion, and conclusions

14. In seeking to challenge his Honour Judge Luba KC's decision, the Applicant has contended that the learned Judge erred in considering the wrong Appellant's Notice. The Appellant's Notice of 28 January 2022, it is said, was against the warrant of execution and not against the order of District Judge Manners of 22 January 2020 - which had been the subject of an earlier Appellant's Notice made to the High Court shortly after that order, in 2020.
15. This, however, is a bad point. Even accepting that the undated Appellant's Notice within the appeal bundle was sent to the High Court within 21 days of District Judge Manners' order in 2020, that could only engage the High Court's jurisdiction insofar as it amounted to an application for permission as required under the terms of the CRO; the High Court did not have jurisdiction in an appeal. Moreover, for completeness, even if I were to assume that such an Appellant's Notice was also sent to the County Court at or around the same time, it could not have been a valid Notice without the prior approval of the nominated High Court Judge or Master as required under the CRO. This analysis is, furthermore, consistent with my understanding of the position when this matter came before me in January 2022 at which time I observed:

"… any application for permission to appeal against the order of DJ Manners would now need to be accompanied by an application of an extension of time. I understand that the Claimant is now able to pursue these matters before the County Court without first requiring the permission of the High Court (the GCRO having expired on 4 July 2020).".

16. That also seems to have been the understanding of the Applicant himself. In his Appellant's Notice of 28 January 2022, he specifically identified the date of the decision against which he wished to appeal as being that of 22 January 2020, and set out the terms of District Judge Manners' order of that date at section 5 of his Notice.
17. More generally, and in any event, the Applicant says that his Honour Judge Luba KC was wrong to dismiss his explanations for the delay. The focus of his submissions before me has related to the first explanation given to his Honour Judge Luba, to the effect that he needed an explanation from the High Court for its delay, so as to then enable him to go to the County Court to demonstrate the reason for his delay. The Applicant has also told me that he received further confusing communications from the High Court after his documents were returned to him in March 2021, although he has not been able to take me to any documents in this regard, nor I should add, is there any reference to such further communications in the proposed grounds of appeal or accompanying skeleton argument.
18. The Applicant says that he returned his papers to the High Court after they were returned and he tells me that: "They said they would then look at them again.". He says he was then waiting for the High Court to get back to him but he heard nothing further.
19. I asked the Applicant whether he had referred to this additional part of the history in any way before his Honour Judge Luba KC and he has told me that he only discussed the documentation that was in the bundle. Indeed, having looked at the Applicant's witness statement in support of his application for an extension of time I cannot see that there was any reference to the High Court having said that it would be continuing to consider this matter after it had returned the papers to the Applicant on 16 March 2021.
20. The relevant passage is at paragraph 5 of the Applicant's witness statement from May 2022 in which he stated as follows:

"5. Then on 16 March 2021, the Appeal Court's office returned the bundle of appeal to me with enclosed letter saying that they were awaiting the sealed order of Judge Manners (see court letter dated 16 March 2021). After receiving this letter I contacted the Appeal Court's office again, demanded to speak with court manager (Mr David Jenkin), but he was nowhere to be found and could not speak to him until now. I could not go back to CSCC because Judge Manners already refused me to appeal to the Circuit Judge in her court even though the CRO would expire by 4 July 2020.".

21. For completeness, I note that the Applicant gave a similar explanation in his earlier witness statement, dated 11 January 2022, at paragraph 25.
22. In any event, even if the Applicant did continue to try to communicate with the High Court after his appeal bundle had been returned on 16 March 2021, there was simply no basis for his continued failure to file an Appellant's Notice in the County Court at that stage. He has told me that he continued to take very seriously District Judge Manners' advice regarding the need to get permission from the High Court under the CRO, but he had known from 4 July 2020 that the CRO had expired. As his Honour Judge Luba KC permissibly concluded, if that was the explanation for the Applicant's default then it was simply misguided.
23. The Applicant has not sought to rely on the second explanation recorded by his Honour Judge Luba KC, namely the inability to communicate with the County Court. Indeed, he accepts that there would have been no problem communicating with the County Court and he has candidly told me that he did not in fact try to communicate with the County Court at any stage at this time. He does, however, say that he was having continued difficulties trying to communicate with the High Court.
24. The Applicant has also told me that he suffered health issues at this time, in particular mental health difficulties which led to his being detained at various stages; he has said he was not always free to lodge court documents. He accepts that he did not rely on this as an explanation before his Honour Judge Luba KC but he has included in the documentation before me various documents relating to warrants under the Mental Health Act 1983, although these precede the key period as identified by his Honour Judge Luba KC. Even if I were to treat this as an additional application to rely on fresh evidence, however, it would not meet the test laid down in Ladd v Marshall 1954 EWCA Civ 1. First, these were obviously documents that could have been obtained and relied on by the Applicant before his Honour Judge Luba KC at the hearing below. Secondly, and in any event, they would have been unlikely to have had any influence on his decision given that they would not provide any additional explanation for the key period that his Honour Judge Luba had identified.
25. Having thus explored the proposed grounds extensively at this oral renewal hearing, I cannot see that the appeal has any real prospect of success. Ultimately, his Honour Judge Luba KC, for reasons that have been given clearly in his judgment, reached a decision that was sound, based on the evidence before him, and permits of no real prospect of appeal. The Applicant was unable to give a proper explanation for the delay from mid-March 2021 to 28 January 2022 and there is nothing in the proposed grounds of appeal that would warrant granting permission in this matter.
26. I therefore refuse this application and accordingly the appeal must be dismissed.
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