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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 >> Cooper & Anor v Ibrahim & Anor [2025] EWHC 672 (KB) (18 February 2025) URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/672.html Cite as: [2025] EWHC 672 (KB)

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IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE ROYAL COURTS OF JUSTICE
ON APPEAL FROM THE COUNTY COURT SITTING AT MAYORS AND CITY OF LONDON
ORDERS OF HHJ HELLMAN DATED 30th JULY 2024 AND 27th AUGUST 2024
COUNTY COURT CASE NUMBER: K04CL360

		Royal Courts of Justice Strand London WC2A 2LL
		18 February 2025

MRS JUSTICE JENNIFER EADY:

Introduction

1. I refer to the parties as the claimants and defendants, as before the County Court.
2. This matter comes before me on the claimants' application, issued on 15 January 2025, to strike out the notices of appeal in both these appeals; alternatively for an order lifting the stay of execution of the possession order of 27 August 2024. That application is supported by a witness statement from Jonathan Warren, solicitor for the claimants, which attaches some ten exhibits. The claimants also filed a bundle for this hearing of some 227 pages.
3. By application dated 14 February 2025, the defendants ask that I dismiss the claimants' applications and exclude Mr Warren's witness statement (which is undated), or parts of it, or parts of the exhibit attached to it, and, at the same time, that I "halt these proceedings" to make an order under CPR Rule 81, which is to commence contempt proceedings, alternatively that I now make a formal referral to the Attorney General. The defendants' application notice is accompanied by a witness statement of the first defendant of some 55 pages and a 12-page witness statement of the second defendant, both dated 17 February 2025.
4. At 9.45 am today, I was also provided with a bundle of documents from the defendants of some 270 pages with an unpaginated bundle of authorities at the back. At 10.18 am, a skeleton argument from the defendants was forwarded to me. As the parties were aware, the hearing today was listed for a total of two hours which was to include time for the court to reflect on the submissions made and give its decision. Unhappily, the hearing (listed to start at 10.30 am) was only able to commence at 11.16 am; there had been some delays in accessing the Royal Courts of Justice today, but, even when those were resolved, the first defendant was not present. After waiting for just over half an hour, I commenced the hearing at 11.10 am to ask the second defendant how she wished to proceed, at which stage the first defendant arrived. I adjourned for a short time to allow the first defendant to get his papers in order and we were then able to commence the hearing.
5. Given the limited time available and the various applications that had been made, I started by asking both sides to set out their respective positions as to the agenda for this hearing. For the claimants, it was said that the court should first audit the degree to which there had been compliance with the order of Sir Stephen Stewart, seal dated 14 November 2024, and then determine whether there was a compelling reason to strike out the appeals or, in the alternative, whether an unless order should be made. The claimants urged me to keep in mind the prejudice that was caused by the ongoing delays in these appeals.
6. For the defendants, it was contended that the court should first address the questions that had been raised regarding Mr Warren's witness statement and exhibits, and whether these matters should be taken further. If, however, the court considered it should address the claimants' application, the defendants said that they could demonstrate that they had complied with Sir Stephen Stewart's order.
7. Having heard from the parties, I gave an initial ruling as to the agenda for today's hearing. I was unable to see that any question arose in relation to Mr Warren's statement, but, in any event, was satisfied that it was open to the court to police its orders: there was a question whether the defendants had complied with the order made by Sir Stephen Stewart, and that needed to be resolved to determine whether these appeals could properly proceed further. As for the defendants' suggestion that the court should be considering contempt proceedings and/or a referral to the Attorney General, plainly no adjudication had been (or could be) made on the allegations raised by the defendants and no application had been made pursuant to CPR 81. In the circumstances, I was satisfied that these were not matters properly before the court at this stage.
8. Having determined the agenda for the hearing, I then proceeded to hear from the first defendant, assisted from time to time by the second defendant, focusing on the evidence available to demonstrate compliance with Sir Stephen Stewart's order. I also received brief submissions from the claimants and then the defendants were able to reply.
9. Submissions having finished at 1.05 pm, the hearing adjourned until 2.05 pm, when I said I would give my ruling. During the lunch break, the defendants forwarded a soft copy of what are said to be the perfected grounds of appeal in relation to the first appeal. It appears those were not also forwarded to those acting for the claimants, but the first defendant has assured me that he will make good that error forthwith.

The Background

10. These proceedings come before the High Court by way of two appeals from orders of HHJ Hellman sitting at the Mayor's and City County Court. The first order was made at a hearing on 30 July 2024, but approved on 2 August 2024 and sealed on 6 August 2024. The second order was made on 27 August 2024.
11. The underlying proceedings relate to the claimants' possession claim in respect of a property known as 8A Randolph Road, London W9 1AN ("the Property"). I understand the Property to be the long-time residence and family home of the defendants, who are siblings.
12. The claimants' claim arises from a registered second charge created on the Property on 25 November 2022 as security for a loan made to the defendants, made on the same date, in favour of Century Capital Partners Limited and Century Capital Partners No 1 Limited, ("the Lenders"). The claimants are joint receivers appointed by the Lenders. As I have stated, the defendants reside at the Property. Although they act in person in these proceedings, the first defendant has told me that he is a practising member of the bar, called in 1998.
13. The claimants' claim for possession of the Property initially came before DDJ Clark on 7 February 2024 when directions were given for service of a defence and for the listing of the issues raised. When the matter returned before the court, then listed before DDJ Brooks, it was considered that there was insufficient time to deal with the issues raised and that these should be considered by a Circuit Judge. The case then came before HHJ Hellman on 30 July 2024, listed for a day, who gave a judgment that day holding that the claimants' claim was not defended on grounds that appeared to be substantial.
14. The defendants having applied for the suspension of the possession order that HHJ Hellman was otherwise minded to make, the matter was adjourned to another hearing. HHJ Hellman had invited the parties to agree the terms of the order, but, as they were unable to do so, competing versions of the proposed minute of order were forwarded by counsel for the claimants on 2 August 2024, and HHJ Hellman emailed back confirming that he approved the claimants' order. I refer to this order as "Hellman 1"; it is the subject of the first appeal before me.
15. The adjourned hearing then came back before HHJ Hellman on 27 August 2024. The judge refused to accede to the defendants' application and granted the claimants' possession of the Property forthwith. He reserved the issue of costs. I refer to this order as "Hellman 2"; it is the subject of the second appeal.
16. It would seem that the defendants then sought permission to appeal from the County Court and that application was put before HHJ Johns KC, who ordered that the application be transferred to the High Court.
17. In the meantime, as the defendants had not vacated the Property, the claimants applied for the proceedings to be transferred to the High Court for enforcement. HHJ Hellman made an order acceding to that application on 18 September 2024 ("Hellman 3").
18. By an appellant's notice dated 29 September 2024, the defendants sought permission from the High Court to appeal Hellman 1 and 2. That notice included an application for an extension of time for filing, the defendants explaining that they had wrongly applied to the County Court and that their error had been explained to them by court staff on 28 September 2024.
19. On 1 October 2024, the defendants also made a without notice application for a stay of execution in the High Court. That came before Master Stephens on 11 October 2024 who granted the application, staying execution "pending the hearings of the application to set aside judgment and the appeal" ("the Stephens Order").
20. On 13 November 2024, the defendants' appellant's notice was considered by the Honourable Sir Stephen Stewart. He made an order, seal dated 14 November 2024, in the following terms ("the Stewart Order"):

"(1) These appeals be linked and considered together.

(2) Appellants' applications to bring appeals out of time in respect of both appeals are granted.

(3) The appellants must file, by 4.00 pm 20 December 2024, a full consolidated appeal bundle in respect of both appeals, which must contain the document specified in PD52B, para 6.41, and may contain any relevant document specified in PD 52B, para 6.42. In particular, the bundle must include a transcript of the judgment in both appeals and a sealed copy of the order of Judge Hellman made on 30 July 2024. The appeal bundle must be paginated and indexed and must contain only those documents which are relevant to the appeal.

(4) The appellants must also file by 4.00 pm 20 December 2024, in respect of the first appeal, grounds for appeal which complies strictly with PD52B, para 4.2(d).

(5) NOTE TO THE APPELLANTS. If you are unable to comply by 4.00 pm 20 December 2024 and you wish to apply for further extension, you must apply to the court making a formal application on Form N244 before 4.00 pm, 20 December 2024.

(6) The applications for stays are granted only to the extent that the order of 27 August 2024 for immediate possession is stayed pending the determination of these appeals or further order.

(7) Any party may apply to have this order set aside or varied within 14 days of the date of service upon that party."


21. The Stewart Order further explained as follows:

"(1) Permission to appeal out of time has been granted based on the matters in section 11 of the appellants' notices, notwithstanding the fact that the first appeal was not originally filed at the County Court until 16 September 2024. The circumstances of the case, as known to the Court at this stage, favour the extension.

(2) It is noted that there is an email from Judge Hellman on the first appeal file which appears to approve the draft lodged by the respondents' counsel. However, this court needs a sealed copy and the appellants should ensure that, if they do not already have a copy, they obtain such from the County Court and that it is filed as soon as possible in this court and no later than 20 December 2024 when the appeal bundle must be filed.

(3) Practice Direction 52B para 42.2(d) requires that 'grounds of appeal … must be set out on a separate sheet attached to the appellants' notice and must set out in simple language, clearly and concisely, why the order of the lower court was wrong or unjust because of a serious procedural or other irregularity (Rule 52.21(3))'. The present draft grounds in the first appeal run to 44 pages. The appellants may also file a skeleton argument in support of and explaining the grounds of appeal, but this too should be as succinct as possible and not exceed 20 pages including exhibits.

(4) In the first appeal, five applications are made in section 10 of the appellants' notice (see also paragraph 10 of the draft grounds of appeal document). The application which this court could have dealt with is the application to stay the proceedings in the lower court. That is now inappropriate since there has been the further hearing at which immediate possession was ordered and this is subject to the second appeal and justifies a stay ordered above. The other applications in section 10 of the appellants' notice and in section 10 of the grounds are not matters for this court unless and until the lower court adjudicates upon them.

(5) The appellants must be aware that the court expects the time limits to be adhered to strictly. If, for reasons outside the appellants' control, an appeal bundle cannot be filed by the due date then there must be evidence, including documents, which justifies the delay. If, for example, there is a delay in obtaining the transcripts of judgments, then the court would expect to see that the transcripts were applied for promptly following this order and evidence that the appellants have made proper attempts to chase them up."


22. There is no dispute that the defendants did not file final grounds of appeal in both appeals and a complete appeal bundle by 4.00 pm 20 December 2024 in compliance with the Stewart Order. It is, however, the defendants' case that they partially complied with that order and that, in any event, they made an application for an extension of time in compliance with paragraph 5. The question of the defendants' compliance with the Stewart Order is the main issue for me at this hearing.

The Claimants' Application

23. The claimants' application was made pursuant to CPR Rule 52.18 which provides:

"(1) The appeal court may --

(a) strike out the whole or part of an appeal notice;

(b) set aside permission to appeal in whole or in part;

(c) impose or vary conditions upon which an appeal may be brought."

but, as stated at paragraph (2), the court will only exercise such powers where there is a compelling reason for doing so.

24. It was the claimants' case that there was a compelling reason for striking out these appeals because there had been wholescale non-compliance by the defendants with the Stewart Order. This, the claimants said, compounded the defendants' original failures, as referenced within the Stewart Order, and was yet further compounded by the failure to apply within time for an extension of time.
25. In his statement, Mr Warren makes the point that the consequences of the defendants' failures to comply with court rules and with the Stewart Order was that the determination of the applications for permission to appeal would take longer and require further court time. Meanwhile, given that the execution of Hellman 2 was stayed, the claimants were unable to take steps to recover possession of the Property in order to sell it on the open market such that the Lenders could enforce a security to which they were entitled.
26. It is further pointed out to me by the claimants that the defendants' indebtedness is not in dispute. Currently that stands at some £5.6 million, with £5.2 million due to the Lenders and the remainder owed to the first charge holder. It is further said that the sums secured by the second charge alone exceed the value of the Property. This is a point disputed by the defendants, but Mr Warren has exhibited two separate valuations of the Property valuing it just shy of £4 million. It is thus the claimants' case that the effect of the stay of execution of Hellman 2, pending the determination of the defendants' applications for permission to appeal, is that the position of the second charge holders is increasingly prejudiced. As Mr Warren says: "with each day that passes the redemption figure increases - as do the claimants' costs - increasing the scale of losses which they will now have to accept when the Property is sold".

The Defendants' Position

27. The defendants have said, however, that they (1) filed an appeal bundle with the court, albeit that bundle could not include all of the documents required for reasons beyond their control; and (2) made an application for an extension of time to comply with the Stewart Order before 4.00 pm on Friday 20 December 2024.
28. In support of this submission, the defendants have produced an email from the King's Bench Fees Office sent to the defendants at just after 4.00 pm on 20 December 2024 confirming a payment made by telephone that day. The first defendant has told me that, although he attended the court in person to file the application notice for the extension of time and the accompanying documents, the Fees Office was busy and he was advised to make payment by telephone, which he did.
29. On 6 January 2025, however, the King's Bench Listing Office emailed the defendants asking for a copy of the application to which the fee related as it was said this had not been received by the court. The defendants say they only saw this email on 23 January 2025 and they then emailed the next day attaching a draft index for the appeal bundle, a further witness statement by the first defendant and the final grounds of appeal.
30. The defendants say that all the required documentation is now available and they are able to fully comply with the Stewart Order. When filing the partially complete appeal bundle on 20 December 2024, the defendants say they were unable to include the sealed order from the 30 July hearing because they had not received that from the court. They could also not include the transcript from the 27 August 2024 hearing because they were still chasing that from the court and their transcribers. And, as they had not received the transcript relevant to the second appeal, they were also unable to finalise their grounds of appeal in that matter.
31. The first defendant has further referred to the fact that the defendants are awaiting another transcript in separate proceedings, which the defendants consider to be relevant to their appeals, albeit he accepted that this would not be an excuse for non-compliance with the Stewart Order and would have to be the subject of a separate application to the court if reliance was going to be placed on that matter.

Analysis and Decision

32. Having gone through the documentation with the first defendant, I accept that steps were taken to try to obtain the transcripts from the two hearings before HHJ Hellman. Although the defendants might have done more, I am prepared to take into account the fact that they are acting in person, with limited resources, and there is at least some evidence of attempts to chase the court and the transcribers in this regard.
33. The evidence is, however, far less compelling regarding the sealed copy of Hellman 1. On the material before me, the best that can be said is that, having received the Stewart Order sometime before 20 November 2024 (the date on which the defendants sent it to those acting for the claimants), it was nearly a month later, on 17 December 2024, that they first contacted the County Court for a sealed copy of the order. The defendants then sent a further email to the County Court on 18 December 2024, with a further request for a copy of Hellman 1, now enclosing a copy of the Stewart Order.
34. Given that the defendants were required to file the appeal bundle, including a sealed copy of Hellman 1, by 4.00 pm on 20 December 2024, that does not demonstrate an attempt to take all reasonable steps to comply with the Stewart Order.
35. It is also troubling to me that I had not seen a copy of the finalised grounds of appeal in respect of the first appeal until the lunch break today, and that both this document and the perfected grounds of appeal in the second appeal would seem to fail to comply with the Stewart Order and with the practice direction in terms of the need for concision; the first is 28 pages long, the second 35 pages.
36. It is, furthermore, a matter of concern that, although the defendants say they filed their application for an extension of time on 20 December 2024, the court appears to have had no copy of any documentation from them until after the chasing email was sent out from KB Listing on 6 January 2025. There is, I accept, some evidence - at least in terms of the payment of a court fee - that the defendants sought to file an application on 20 December 2024 and I cannot be sure that this was not lost by the court. To that extent, I would give the defendants the benefit of the doubt, and accept that there would appear to have been an attempt to comply with paragraph 5 of the Stewart Order, albeit that still would not fully explain why more had not been done to comply with other aspects of that order.
37. As I have already stated, even if I accept that steps had been taken to try to obtain the transcript from the 27 August hearing, and the delay in receiving that was not wholly the fault of the defendants, I am not satisfied that the defendants' inability to file the full appeal bundle was entirely out of their hands, in particular given the absence of evidence to demonstrate chasing for the sealed Hellman 1 Order. Having regard to all these circumstances, I do not consider that I can go so far as to say there are compelling grounds for striking out these appeals. That is a draconian step which should always be a last resort. On the other hand, I am satisfied that there are compelling reasons to ensure the defendants' future compliance with the court's orders and directions. The orders made by the court do not simply set out aspirational steps; they are made for a purpose and non-compliance should have consequences.
38. On the defendants' own case, there is now no reason why there should not be full compliance with the Stewart Order, and for all the required documentation to be filed with the court and served on the claimants. There remains a question as to whether the perfected grounds of appeal do in fact comply with the practice direction and with the Stewart Order, and whether that is also true of the proposed appeal bundle (which may be said to contain more documents than those strictly relevant to the appeal); these are, however, points that can be considered when the question of permission to appeal is before the court.
39. Having regard to all the matters I have set out, I am satisfied that the appropriate course is for me to now make an unless order, which will require the perfected and final grounds of appeal to be filed and served, along with the composite paginated indexed appeal bundle. I am prepared to hear further from the defendants as to the precise date for compliance with my order, but I make clear that it will be on an "unless" basis; that is, unless there is compliance with the order that I am going to make today, the appeals will stand struck out without further order of the court.
40. If, however, the defendants comply, then the question of permission to appeal will need to be considered by the court. My proposal (and again I am prepared to hear further from the parties on this question) is that that question be set down to be considered by the court at a further hearing which can be listed alongside any applications by the claimants at that stage.
(After further submissions)
41. Following on from the ruling that I gave earlier, and having heard further representations from the parties, I order that unless the defendants file and serve the documentation required by the Stewart Order within seven days (that is by 4.00 pm on Tuesday, 25 February 2025), these appeals will stand struck out by the court without further order. Upon compliance with that order, however, this matter will be restored before a High Court judge for determination of the question of permission to appeal, which will be at a hearing at which the judge will also consider the claimants' adjourned application for the lifting of the stay of execution of the possession order of 27 August 2024 and any other applications. The estimated length of that hearing will be one day.
42. Any other applications should be made at least 7 days prior to the date on which the permission hearing is listed.