Nelson Trust v Bank of Scotland | Just-Us System Declared Void

There now follows a transcript of the judgment of HHJ Behrens, which is subject to Crown Copyright and published under a Fair Use and Fair Dealing Notice, for the purposes of educating the public and providing commentary about the Justice System.

The judgment was handed down at the ex-parte hearing of an application for permission to proceed with Judicial Review, which I presented in the High Court at Leeds on 28 June 2012, following an order by Judge Langan on 22 May 2012, striking it out as “vexatious” on paper, but allowing for an oral hearing upon the request of the trustees of my family’s private property trust, for whom I was appearing under limited powers of attorney.

His Honour Judge Behrens:

1. This is an application by the claimant’s representative on behalf of the Trustees to discharge the order that HHJ Langan QC made in these proceedings on 22 May 2012. Judge Langan struck the case out because he considered that it was vexatious and without any prospect of success. He did that on considering the papers. As a result the order provided that the Claimant would have the right to an oral hearing. The claimant’s representative on behalf of the Trustees has taken advantage of that right and he has addressed me politely, with great passion, in relation to a matter on which he plainly feels extremely strongly. He has also prepared and typed out with great care a lengthy skeleton argument, which is erudite and contains a large number of authorities.

2. In order, however, to consider whether Judge Langan was correct, it is important to understand what the case is about. I start with a hearing which took place before HHJ Walton in Chancery proceedings which had been instituted by the Trustees against the Bank of Scotland and DTZ Holdings Limited. There were various applications in that case, which came before Judge Walton. His judgment is dated 22 October 2010. He was dealing with an application to strike out the claim on the basis that there was no reasonable grounds for bringing it. Judge Walton produced a written judgment consisting of some 28 paragraphs and made an order striking out the claim as disclosing no reasonable cause of action. He certified that the claim was totally without merit and made various orders as to costs which it is not necessary for me to record. He refused permission to appeal.

3. It is perhaps important that I should note that The claimant’s representative contends that HHJ Walton made a fundamental error in the case, which concerned a mortgage. The claimant’s representative‘s contention is that there was a defect in the facility letter which vitiated everything. The claimant’s representative submits that the facility letter was not signed or not properly signed there could be no enforceable mortgage. He says that was a clear error by Judge Walton, who should therefore have permitted the claim in the Chancery Division in Newcastle to continue.

4. The claimant’s representative on behalf of the Trust exercised his right to appeal and applied for permission to appeal. The application was considered by Lloyd LJ on 9 February 2011. Lloyd LJ refused permission to appeal and certified it as being as being totally without merit. He directed that The claimant’s representative could not request that the decision be reconsidered at an oral hearing. He made the following observation which in my view is directly relevant to the arguments which have been raised before me:

“The contention that the agreement between the parties represented by the facility letter is void because it does not comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 is wrong. That section only applies to contracts for the sale or other disposition of an interest in land. The facility letter is not such a contract. The fact that security by way of a legal charge over property was required as a condition of drawing down the facility (see condition 1.1 and Schedule 2 paragraph 1) does not make it an agreement for the creation for a charge over land.”

5. So the position is that the argument which has been put before me with considerable force by the claimant’s representative has been specifically considered by Lloyd LJ and has been specifically dismissed by Lloyd LJ. It is also worth noting that Lloyd LJ concluded that the appeal was misconceived and totally without merit. He went on to say:

“…I have to consider whether it is appropriate to make a civil restraint order. Because the trustees have made applications both at first instance and by way of this appeal which have been dismissed as totally without merit, the conditions for making a limited Civil Restraint Order under paragraph 2.2 of the Practice Direction 3C to Part 3 of the CPR are satisfied. Nevertheless, I will not make such an order now as against the claimant’s representative or against any other of the trustees, in the hope that none of them will persist in making such applications. They should be aware, however, that if such applications are made in future and are dismissed on this basis, the court may then consider it right to make a civil restraint order against the person making the application.”

6. The claimant’s representative has submitted, firstly, that the decision of Judge Walton was wrong; secondly, as a result of his decision being wrong, the order that he made is a void order; thirdly, that the Administrative Court has jurisdiction to entertain what might be thought to be a second appeal against the decision of Judge Walton. He does so by reliance on certain observations, mainly of Baroness Hale, in a decision known as R(Cart) v Upper Tribunal [2011] UKSC 28 because, as he says, section 31 of the Supreme Court has been amended. He says in those circumstances this court should at least assume jurisdiction to put right an injustice. Judge Langan expressed the view that this court had no jurisdiction in relation to the matter.

7. Even if this court does have jurisdiction in exceptional cases to review a decision of the High Court, (and at the moment I cannot conceive of a situation where it would have), I am quite satisfied that it is not appropriate to do so in a case where there has been an application for permission to appeal to the Court of Appeal which has been dismissed in the terms of Lloyd LJ’s order. There has to be finality in litigation and that finality has been achieved, so far as this case is concerned, by the order of Lloyd LJ. I am conscious that the claimant’s representative thinks that both Judge Walton and Lloyd LJ are wrong, but I am afraid the system does not permit a further challenge to that order. Where permission to appeal is refused, as it has been by Lloyd LJ, there is no further right of any further appeal to the Supreme Court. The order itself records this decision is final. It is a case where there has been a full judicial consideration of the issues and, I am afraid to say, so far as the claimant’s representative is concerned they have been dismissed.

8. In those circumstances, it would be wholly inappropriate for me to comment on the detailed and careful arguments that the claimant’s representative has put forward as to the merits in, as I indicated at the beginning of this judgment, his full skeleton argument. I agree therefore with Judge Langan that this application is wholly without merit. Bearing in mind the warning given by Lloyd LJ, it does seem to me that this is a case where there should be a limited civil restraint order against the claimant’s representative in bringing any further proceedings in relation to the issue of this mortgage.

9. So this application is refused.

The claimant’s representative:

May I have leave to appeal that decision, sir?

Judge Behrens:

As far as I am concerned, permission to appeal is refused. Thank you very much.

The claimant’s representative:

May I say one more thing?

Judge Behrens:

Yes?

The claimant’s representative:

I would just like to say that I really appreciate the time and consideration that your Honour has given to this case, but I must also declare that this is a miscarriage of justice which is not sustainable… As far as I am concerned, a system of justice that does not deliver justice is void ab initio and needs to be struck down. Thank you very much for your time.

Judge Behrens:

Thank you very much, and also I thank you for the polite way in which you addressed me.

Two Years Later

Despite HHJ Behrens issuing a Limited Civil Restraint Order, in an attempt to stop my family’s claim of mortgage fraud being sustained, in the summer of 2014, he was forced to concede the very points he, Walton and Lloyd dismissed in 2010, 11 and 12, when Bank of Scotland issued a High Court claim against the trustees, seeking £1.85 M in alleged mortgage arrears, having already received around £650 K from the proceeds of eight of the trust’s fire-sold properties.

After two torrid hearings at Leeds Combined Courts, Behrens gave summary judgment to the trustees, in total contradiction of his previous judgment, declaring that the Law of Property (Miscellaneous Provisions) Act 1989 applied to the mortgage documents relied upon by the bank and that the mortgage deed over one of the three properties left in the portfolio was illegal under section 52(1) of the Law of Property Act 1925 because the signatures of the trustees were not attested to by an independent witness at the moment of execution, in breach of section 1 of the 1989 Act.

As a direct result, the Land Registry cancelled the entry of the void mortgage in the Charges Register in early 2015. However, since Behrens also declared that the bank was entitled to another mortgage, with or without the consent or signatures of the trustees, another fraudulent charge was illegally registered, albeit after a two year battle with the Land Registry and the Property Chamber, both of which refused to grant our applications to cancel it on the same grounds as the first removed from the register, which resulted in the property being fire-sold at a fraction of its market value.

Bank Capitulates

Nevertheless, almost five years after our summary judgment win and three months after the UK release of The Great British Mortgage Swindle, Bank of Scotland cancelled the last remaining portfolio mortgage over my sister’s family home, thereby giving up its claim for a further £1.8 M from the trustees and implicitly conceding that all the monies they have received have been fraudulently rinsed from Nelson Trust, with the complicity of every judge who ruled against us.

Moreover, this capitulation also emphatically demonstrated that my declaration that Behrens’ dismissal of my arguments in June 2012 was void has now been sustained at law, even if the official records of proceedings have not yet been duly amended to reflect the actual facts of the matter.

It is also somewhat worthy of note that Walton, Lloyd and Behrens, the three judges who dismissed our claims as “totally without merit”, have long since retired, leaving the void judgments they handed down all the more vulnerable in the TGBMS Class Actions, which are set to hit the courts in early 2019.