IN THE HIGH COURT OF JUSTICE NO: CO/1335/00

Royal Courts of Justice

Thursday, 26^th October 2000

B e f o r e:

and

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Computer-Aided Transcript of the stenograph notes of

Smith Bernal Reporting Limited,

190 Fleet Street, London EC4A 2AG

Telephone No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

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MR PAUL BROWN (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Claimant

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J U D G M E N T

(As approved by the Court)

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1. LORD JUSTICE PILL: This is an application made on behalf of the Attorney General for an order under section 42 of the Supreme Court Act 1981. That provides in subsection (1):

2. The order is sought against Mr Asa Singh Khaira who has been served with notice of the application, there being an affidavit of service which specifies today as the hearing date. Mr Khaira has not appeared today. His name has been called outside the court both in the course of the morning and now again at 2.15.

3. We have heard submissions on behalf of the Attorney from Mr Paul Brown of counsel. The proceedings are authorised by the Solicitor General, as the Solicitor General is entitled to do. Mr Khaira has had an opportunity to be heard. I am satisfied as to that, by reason of the service upon him, and I propose to deal with the application today.

4. There is a further affidavit from Mr Gary Murray, investigator and process servicer, that he has attempted to serve further documents, including the skeleton argument on behalf of the Attorney General, upon Mr Khaira and that is dated 13^th October. It sets out the circumstances. Documents have been left at an address in Hounslow where it is believed Mr Khaira lives or, at any rate, visits.

5. There is no doubt that Mr Khaira has been involved in a great deal of litigation. He does not agree with orders made against him years ago in favour of Barclays Bank. In June 1986 the bank brought an action (“the Debt Action”) against him for repayment of £144,412.55, which the bank contended was due under a loan agreement. Default judgment was entered on 19^th September 1986, no defence having been served. Mr Khaira made three attempts to have the judgment set aside in 1993, 1994, and 1995. All three applications failed and, on one occasion, an order was made prohibiting him from making further applications without the permission of a Master, so-called a Grepe v Loam Order.

6. That, however, is to go ahead of the further action which the bank brought against Mr Khaira. The loan which was the subject of the Debt Action was secured, claimed the bank, on Mr Khaira’s property at 297 Bath Road, Hounslow. The bank claimed that it was his property and having obtained judgment in the Debt Action they sought possession of the property, ( “the Possession Action”). Before that was heard Mr Khaira was made bankrupt, an order being made on 28^th April 1987. He was adjudicated bankrupt on the petition of a third party. The Possession Action was heard in October 1991 by Mr Thomas Morrison QC, as he then was, sitting as a Deputy High Court Judge.

7. Mr Khaira had leave to defend the action but only with the consent of his trustee in bankruptcy. That consent was not forthcoming and, indeed, was refused on 2nd February 1988. No defence was filed on Mr Khaira’s behalf. However, his wife, Mrs Khaira, defended the action. She had unconditional leave to defend and served, and relied upon, a comprehensively stated defence. The charge on the property was admitted. Mrs Khaira was said to be in occupation of the premises and it was alleged that there had been a transfer of an interest in it to her. Other allegations were made, including that her husband in certain negotiations had been acting as agent for the bank. She denied that the charge applied as against her and she alleged undue influence by Mr Khaira amongst other things.

8. It was claimed at paragraph 6 that her actual occupation of the property conferred upon her an overriding interest. It was alleged that Mr Khaira had represented to her that the proposed legal charge was to be a charge on a different property, namely 4 Spring Grove Road. It was alleged that the charge was procured by improper pressure and undue influence exerted upon her by her husband. Untrue representations were made to her. It is further alleged that the bank owed her a duty of care and that they were in breach of that duty, including in failing to advise her to seek independent legal advice. She claimed a declaration that the Legal Charge was voidable in equity by reason of the undue influence and improper pressure exerted upon her by her husband, the agent of the bank. Damages were also claimed and a counterclaim was made.

9. The hearing took place over three days: 29^th, 30^th and 31^st October 1991. Mr Morrison reserved judgment and read his judgment on 13^th December 1991. It was reported as Barclays Bank Plc v Khaira [1992] 1 WLR 623. The learned judge granted the bank an order for possession. The judgment, if I may say so, is comprehensive and deals with each of the points raised by Mrs Khaira. An issue had arisen, for the purpose of the proceedings and of the preceding events, as to her ability to understand English, and the judge made a finding that she was able to do so. She was represented in the case by counsel.

10. Mr and Mrs Khaira sought to appeal against the learned deputy judge, Mr Morrison’s decision. They appealed against that decision, permission at that time, unlike now, not being required. However the bank sought to strike out the notice of appeal. On 30^th April 1992 the Court of Appeal struck out the notice. It was held, first, that Mr Khaira by reason of his bankruptcy had no right to issue a notice of appeal and, second, on the ground that the appeal was unarguable.

11. The transcript appears in the bundle of documents, (Volume 1, p 198). The appeal was heard by Parker LJ, Leggatt LJ and Sir David Croom-Johnson. At page 208 Leggatt LJ, with whom Sir David Croom-Johnson agreed, stated that the proposed appeal was unarguable. Parker LJ stated:

12. Since that date many attempts have been made by Mr Khaira in a variety of ways to reverse, in effect, the decisions of the courts to which I have referred. I have referred already to the attempts made to have the judgment in the Debt Action set aside. Repeated attempts have been made to re-open the issues arising in the Possession Action and to prevent the bank from taking possession and selling the property. On two occasions application has been made for the judgment and the possession order to be set aside. One of those occasions, to which I will refer, being comparatively recent, they other was in 1995.

13. Two applications have been made to obtain stays of execution of the possession order, one in 1993 and one in 1995. Attempts have been made to have the possession orders suspended, one of which upon refusal was the subject of an appeal. Mr Khaira has sought an injunction to deny the bank’s right to possession, first in 1993 and, second, by a separate action commenced in the County Court, in 1995. On the first occasion Rattee J described the application as “doomed to failure” and made a Grepe v Loam Order prohibiting further such applications in the action without leave.

14. An action has been brought against the purchasers of the property from the bank for “inappropriate possession”. The bank, to protect their interests and prevent Mr Khaira from removing objects from the property, had themselves to obtain an injunction. Mr Khaira had attempted to occupy the property himself; that of course is nothing to do with the court proceedings which are relevant for the purpose of the present application. But in each case the bank sought, and was granted, leave to issue Writs of Restitution to protect their position. Mr Khaira for his part has made attempts to have the writs stayed or set aside. Mr Khaira has sought orders that the bank was in contempt of court for alleged failure to comply with an undertaking given to Lightman J on the bank’s third application for a Writ of Restitution. Those applications by Mr Khaira have not been successful. The undertaking referred to is at page 277 of the bundle when in the course an application in the possession action the Bank undertook by its counsel:

15. A number of applications have been made to set aside the Grepe v Loam Order, made by Rattee J, between March 1995 and July of this year. Outside the possession proceedings, but by way of indirect challenge to them, Mr Khaira has brought other actions against the bank. There have been four actions. The allegation have included: negligence; conspiracy; deception; fraud; theft; breach of trust, and breach of contract. Each of the four actions has been struck out. They had been brought two in 1993, one in 1994 and one in 1998. Within those proceedings individual bank officials and professional advisers of the bank were named, as well as members of Parliament, though those persons were not made defendants in the actions. There were, however, three separate actions against 13 officials and directors of Barclays Bank. In each action negligence, breach of thrust, and breach of contract was claimed. The actions were brought in 1999. In each case they were dismissed as an abuse of the process of the court. Actions have been brought against other parties by reason of matters arising out of the possession action. It must be recognised that these may be valid actions and cannot, as a matter of course, be treated as vexatious. They are relied on as showing the repetitive nature of Mr Khaira’s applications and his unreasonable refusal to accept the finality of the orders made, years ago, in the Debt Action and the Possession Action, against him. There have been two actions against parties associated with his bankruptcy, the firm of accountants acting as his trustee, and also the Secretary of State for Trade and Industry. The first action was in 1994 and the second in 1998, both were struck out by order of the court. In the case of the action against the trustee an appeal against striking out was dismissed.

16. There were two separate actions against the bank’s solicitors, each alleged negligence, breach of trust, and breach of contract. In one action a claim for conspiracy was made. In both cases, the actions being in 1998 and 1999, orders were made by the court striking the actions out. In addition, Mr Khaira brought actions against solicitors who had previously been acting for him but I take no account of those for present purposes. An action was also brought against a company which had a second charge on the Bath Road property. The present status of that action is not clear from the papers which are placed before the court. But it is difficult to see what merit the action could, in present circumstances, have. In 1999 an action was brought against Mr Michael Howard, former Home Secretary, alleging negligence, breach of trust, breach of statutory duty, and breach of contract. That has been struck out by order of the court.

17. Having set out the sequence of events, Mr Brown submits that the conduct of Mr Khaira requires the making of an order under section 42. The proceedings which Mr Khaira has issued, since he resoundingly failed in the possession action and in the appeal which followed it, have been vexatious. Moreover, even within the actions, applications have been made which are in themselves vexatious within the meanings of section 42(1)(b). Subsequent conduct is, in substance, a repetition of attempts to set aside the order of the court in the debt action and, more particularly and persistently, in the possession action. Attempts are made in a number of ways to defeat the finding of the court in the possession action or in some way to circumvent it, or to obtain relief indirectly when no such relief can properly be granted by the court, or can be expected to be granted by the court.

18. In the course of his submissions Mr Brown has underlined the repeated attempts to have the Grepe v Loam Order, made by Rattee J, set aside and the flouting of that Grepe v Loam Order. Applications have been made without permission first being sought. Other Grepe v Loam Orders have been made. Fresh proceedings have been issued to achieve the same result, that is the setting aside in some way or other of the possession order. Claims have been brought outside the limitation period, examples are given of that in the 1994 actions against the former solicitors and also against the bank. Breaches of contract are alleged in 1984 and 1985, that is, outside the limitation period.

19. I make more detailed reference to applications which have been made by Mr Khaira during the present year, 2000 (particulars of these are given in bundle 3 of the documentation). One is an application before Arden J, which appears at page 12 of that bundle, and the second an application which was heard by Ferris J, which appears at page 34. Both applications were made in the Chancery Division in the 1986 action, that is the action of Barclays Bank v Mr & Mrs Khaira. In both cases various types of relief are sought. If in enumerating the applications which have been made duplication appears it is because, in some of the cases referred to, more than one form of relief is sought by a single application. So one should not merely total up the number of compartmentalised applications, to which I have referred, to achieve the accurate number of court applications. The application at page 12, which is dated 26^th June of this year, is an illustration of that. Eight forms of relief are sought:

20. I will not refer to the application heard by Ferris J in full. In that case there are six claims for relief and they too are of a varied nature. For example at (2) judgment or injunction is sought in respect of the property at Bath Road. The injunction is referred to and is sought to be set aside, the order which it is sought to set aside being made on 7th October 1993. It is also sought to set aside the judgment of Mr Morrison, given on 13^th December 1991, in respect of the Bath Road property. The Court of Appeal having in resounding terms in 1992 set aside a notice of appeal against that decisions. Mr Khaira is still seeking to set it aside by application to the Chancery Division in the year 2000.

21. We do not have a transcript of the hearings before Arden J and Ferris J but there is what appears to be a careful note prepared by solicitors and I am prepared to rely upon that. Arden J refused the applications made to her in firm terms. Ferris J, who gave judgment on 27th July 2000, referred to earlier proceedings and stated:

22. The learned judge then set out the two grievances of Mr Khaira as he understood them, the first being the breach of the undertaking to provide Mr Khaira with a full breakdown of the original debt. The second was that the possession order made by Mr Morrison should never have been made. As to the first, Ferris J said that the complaint was entirely unwarranted and it was vexatious for Mr Khaira to raise a complaint now. In relation to the second, the judge said that it was completely impossible for any court now to undo that order, that is the order of Mr Morrison, and he could see nothing irregular about the order, or the case of the bank:

23. Ferris J repeated in strong terms that Mr Khaira’s conduct had to stop. Before referring to Mr Khaira’s written statements, which are before the court, I add that following the judgment by Ferris J the solicitor’s note records that:

24. Mr Brown has brought that paragraph to the attention of the court so that the court can consider the possibility that, whatever his conduct in the past may have been, Mr Khaira does not intend to trouble the courts further in any unreasonable manner. Mr Brown goes on to point out that since that date substantial written submissions have been made by Mr Khaira which far from indicate that, if permitted to proceed, he will desist in making further applications arising out of the original matters, which are still a source of grievance to him.

25. In the bundle is a statement of submissions from Mr Khaira dated 13^th June of this year. He persists in his allegations against the bank in relation to their records. He submits that the bank forged legal charges and falsified statements of his account. In 1987 before Deputy Master Platt, he submits, they suppressed vital, relevant information and perverted the course of justice. The evictions from the Bath Road premises were illegal and there had been by the bank and its officials an intentional campaign of racial harassment. The possession proceedings were improper, it is alleged. Mr Morrison had been wrong in his findings in relation to the proceeds of the sale of other premises in Lansdowne Road (paragraph 13 of the statement). The complaint is made that Mr Khaira was not permitted to appear at the trial of the action by Mr Morrison. The true position of the trial was that there was no plaintiff’s loan against him and no charge against the Bath Road premises. Mrs Khaira was the sole owner and in occupation of those premises.

26. Complaints are made that the bank suppressed vital information at trial and were guilty of contempt and perverting the course of justice in the matter. It was alleged:

27. The debt against Mr Khaira had not been properly proved. Reference is made to some of the earlier applications by Mr Khaira, including that before Rattee J on 7th October 1993.

28. Legal representatives of the plaintiff at that hearing “were not experts in conveyancing in the matter.” There had not been compliance with an undertaking given to Lightman J. On 11^th July a further letter was sent to the solicitors, again headed with the title, “1986 Action”. In summary form, similar allegations are made about the banks’s conduct over a period of years and, in particular, when the relevant orders were sought by the bank. Those letters predated the hearing before Ferris J but, notwithstanding Mr Khaira’s reference to that day as being his last hearing, he has submitted two further statements which are in bundle 3; one is dated 6^th August and, the second, is dated 23^rd August. There is a further and longer document running to ten paragraphs dated 29^th August. In these documents Mr Khaira covers ground which, I have to say, is familiar having referred to the earlier proceedings and the whole course of events since Mr Morrison’s decision in 1991.

29. Complaints are made about the bank and other organisations. The statement made to Ferris J by Mr Khaira about his future conduct is ambiguous in that he does also refer to seeking legal aid as well as to that hearing being his last.

30. I have referred to Mr Khaira’s written submissions at some length and I am satisfied that there has been no change of attitude by him and the court has to approach the present application on the basis of prolonged conduct which has been persisted in up to a recent date. In his acknowledgment of service it is submitted by Mr Khaira that the claimant, the Attorney General, is perverting the course of justice and issued this action on the advice of criminals who should have been locked up in prison a long time ago. It is suggested that the Attorney General has failed to enforce law and order on the criminals, Barclays Bank Plc, its officials, and others; that he has failed to commence criminal proceedings against Barclays Bank Plc and others. References are made to statutory provisions.

31. Similar allegations are made on the second page. That statement is dated 18^th July, that is between the hearing before Arden J and that before Ferris J.

32. The approach to be applied in circumstances such as these was considered by Lord Bingham, Chief Justice, in HM Attorney General v Paul Barker, (transcript 16^th February 2000). Lord Bingham stated at paragraph 22:

33. In that case the Lord Chief Justice held that persistence had not been shown. In my judgment, it has been abundantly shown in this case and the vice identified by Lord Bingham has reared its head in a powerful way in the circumstances of this case.

34. In his acknowledgment of service Mr Khaira also refers to the Human Rights Act 1998, that incorporates the European Convention on Human Rights in many respects into English law. It incorporates Article 6 which, to paraphrase, requires access to the courts and a fair trial. The requirements of Article 6 do not, in my judgment, preclude an order under section 42 of the 1998 Act. The courts exist for the resolution of legitimate litigation in the interest of the parties to it and in the public interest. Article 6 does not empower a particular litigant to abuse the process of the court. In my judgment section 42 is not contrary to the Convention and it is not contrary to the Human Rights Act 1998 to make an order against Mr Khaira upon the present facts.

35. Mr Brown has also referred us to two decisions of the European Commission of Human Rights, Golder v United Kingdom (1975) EHRR 524 and H v United Kingdom (1985) EHRR 281. That body has considered, and not found unlawful, the provisions of section 42. This court in Attorney General v Price [1997] COD 250 came to a similar conclusion. It is a duty of the court to consider the wording of the section, the manner in which it is to be approached as explained in Barker and, in earlier cases, to consider whether the criteria are satisfied and whether in all the circumstances it is appropriate to make an order under the section.

36. In my judgment, it is entirely appropriate to make an order in the present circumstances. Upon the history which I have set out an order is required to be made. For the reasons I have given I propose that it should be made.

37. MR JUSTICE POTTS: I agree.

38. MR BROWN: My Lords, I am very grateful. Your Lordships will probably be aware of the fact that in cases of this sort it is customary that the Treasury does not ask for costs. I, therefore, make no application in that regard.

39. My Lords, I do have an order which has been drafted by my instructing solicitor. I do not know if one has been handed in. Can I pass that up. Your Lordships will see that it starts with a recital of the claim form, what was asked for there, then refers to the witness statements of Mr Lutterodt (Same handed).

40. LORD JUSTICE PILL: Yes, I refer to the associate because he is experienced in drafting orders of this kind. Would you confer with the associate before leaving court. It appears to me to be an entirely appropriate form. If there are points of detail then they can be included but if there is anything of significance I shall be in my room, please refer them back to me.

41. MR BROWN: I am very grateful.

42. LORD JUSTICE PILL: There is nothing else, I ask particularly because Mr Khaira is not present? Is there anything else you ought to tell the court as a matter of duty to the court at this stage?

43. MR BROWN: My Lord, not that I can think of. Mr Khaira would need leave to appeal. I cannot make that application.

44. LORD JUSTICE PILL: Yes, thank you very much.

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