Case No: HC07C02896
Neutral Citation Number: [2008] EWHC 3443 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Date: Thursday, 20 November 2008

BEFORE:
HIS HONOUR JUDGE PELLING QC
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BETWEEN:

	MILLER-FOULDS	Claimant/Respondent	
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	THE SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS	Defendant/Appellant	
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Digital Transcript of WordWave International, a Merrill Communications Company PO Box 1336 Kingston−Upon−Thames Surrey KT1 1QT Tel No: 020 8974 7300 Fax No: 020 8974 7301 (Official Shorthand Writers to the Court) 
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MR C WOLMAN (instructed by Hunters) appeared on behalf of the Claimant
MR T MORSHEAD (instructed by the Treasury Solicitor) appeared on behalf of the
Defendant
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Judgment

JUDGE PELLING QC:  

1.	In these proceedings, the claimant seeks various declarations, the general effect of which is designed to lead to the conclusion that there is no evidence of the existence or effect of an order supposedly made by Brentford County Court on 5 November 1991 whereby it was supposedly ordered that the claimant deliver up possession of a property, 63 Eastmead Avenue, Greenford, Middlesex (“the property”), to Abbey National Building Society (“Abbey”), the plaintiff in the proceedings in which the order was supposedly made. It was also supposedly ordered that the 1991 order was not to be enforced providing the claimant made certain payments.  Abbey contends that the terms of the suspension have not been complied with and a hearing is due to take place on 24 November 2008 at Brentford County Court at which Abbey’s application to enforce the suspended order will be heard. I understand the Brentford proceedings have been adjourned at least once in order that they can be heard after judgment in these proceedings has been given. The claimant’s case in those proceedings is that various orders obtained from Brentford County Court by Abbey over the years since 1991 have been obtained on the basis of a fundamental mistake or misrepresentation as to the existence of the 1991 order, including but not limited to an order obtained from HH Judge Edwards at Brentford in 2005 that was the subject of an appeal, first to Langley J and then to the Court of Appeal, allegedly on different grounds to those I am concerned with.

2.	In paragraph 4 of his first witness statement in these proceedings, the claimant’s solicitor, Mr O’Halloran, identified the purpose of these proceedings to be:

“… to allow her [the claimant] to return to Brentford County Court and ask His Honour Judge Edwards to revoke his judgment and order of December 2005 on the grounds of a fundamental mistake and misrepresentation.”

In a case which is unusual in a number of respects, one of the most striking features (given the supposed purpose of this litigation) is that if these proceedings were appropriate at all they were not brought against Abbey, either alone or together with the current defendant.  The failure to join Abbey is surprising for a declaration (and that is all the relief sought in these proceedings) is declaratory of the rights of the parties in suit and thus any declarations I grant in these proceedings would not be binding on Abbey in the Brentford proceedings. This is highly material because the power to make declarations is discretionary.  In deciding whether to grant a declaration, the court is bound to take into account whether the declaration sought would serve any useful purpose. Although the claimant’s counsel sought to avoid this issue by asserting, first, that the claimant had invited Abbey to apply to be joined and, second, that in any event Abbey might choose not to challenge the issues covered by the declarations afresh at Brentford, neither of these explanations are satisfactory, in my judgment. As to the first, it is for the claimant to decide who is to be or ought to be a party to the proceedings it or she commences.  As to the last, there is no evidence that suggests, and the history of the Abbey litigation does not suggest, such an outcome to be at all likely.  In my view, the overwhelming probability is that the issues litigated before me are likely in substance to be litigated again before HH Judge Edwards.  This point was sufficiently obvious for me to raise it at the start of the trial, since it seemed to me that even at that late stage an application to join Abbey might be made, even though that might result in an adjournment.  This fell on stony ground, however, and I was left with the impression that a deliberate decision had been taken not to join Abbey to these proceedings.

3.	This made it all the more surprising, therefore, that in his closing submissions counsel for the claimant asked me to determine the hearing before me by standing over the trial and directing the joinder of Abbey.  This application was combined with the suggestion that I should also adopt that course in order to permit the claimant to apply for specific disclosure against the defendant and also against Abbey, either as a party once joined or as a non-party.  I return to this application at the end of this judgment.

4.	Before turning to the substance of the dispute, I record that on 14 November 2008, shortly before the trial was due to start, the defendant issued an application to strike out the proceedings on the grounds that they were an abuse of process.  However, counsel for the defendant (wisely, in my judgment) accepted that to attempt to deal with these proceedings on that basis when the matter had been listed for trial was likely to generate in the end more delay and more expense and so it was left that the defendant would rely on the abuse points as part of his closing submissions.

5.	The trial took place on 14, 17 and 18 November 2008.  I heard evidence from the claimant and the statements of Mr Pliener of counsel (A201) and Mr O’Halloran, the claimant’s solicitor (A211), were admitted unchallenged.  In addition, the claimant called Mrs Knight, the court manager at Brentford County Court, who attended under a witness summons.  The defendant called as witnesses Mr Rothay, Abbey’s current solicitor, who has conduct of the Brentford proceedings on its behalf; Mr Malcolm Bennett, a senior official of Her Majesty’s Court Service; and Miss Fleming, a section manager employed at Brentford County Court.

6.	I start with the relevant facts, most of which derive from the procedural history of the litigation between the claimant and Abbey.  As might be expected with proceedings that started as long ago as January 1990, that history is extensive and tortuous.  I confine what I say in this judgment to what appear to be the centrally relevant events only.

7.	The claimant owns and occupies the property as her home.  It was acquired by her and her late husband in July 1986 with the aid of a mortgage from Abbey.  In January 1990, Abbey commenced possession proceedings at Brentford County Court.  After a hiatus, the possession proceedings were restored in October 1990.  After various interlocutory steps, which are recorded on the Brentford County Court record card at pages 35 to 36 in the supplemental bundle, it is the defendant’s case that a hearing took place before a district judge at Brentford on 5 November 1991, at which a suspended possession order was made.  A copy of the order supposedly made appears at A215. I find that the order was drawn up by Miss Fleming, whose evidence was that it was she who drew up the order.  She recognised the handwriting on the order as hers.  I accept her evidence on this point and, indeed, generally.

8.	The order was drawn up using the standard form for possession orders in respect of mortgaged land then used in the county courts and it purports to bear the seal of Brentford County Court.  In the supplemental bundle at pages 35 to 36 is what purports to be a copy of the record card maintained by Brentford County Court as its record of the proceedings between Abbey and the claimant.  In the box entitled “Details of Judgment/Order” appears the statement:

“Judgment for the plaintiff 5/11/91.  Possession 28 days susp on payment of £7,803.97 at £175 pm plus cm.”
(Quote unchecked)

The reference to “cm” is to “current mortgage”, which in turn means the current monthly payments required to be paid to Abbey, and “pm” means “per month”.  This shorthand note reflects what appears in the order. Miss Fleming told me and I accept that she is the author of this part of the record card.  She also told me and I accept that at that time the method adopted for the preparation of orders of the sort I am concerned with was that the hearing would take place in the chambers of the district judge, who would then set out on a sheet of paper the order made.  Files for the cases would be brought to her by an usher as the cases were completed.  She would then draw up the order, complete the record card and arrange for as many copies of the drawn-up but unsealed order to be made as were necessary for a copy to be supplied to each of the parties.  Once the copies had been prepared by photocopying, each copy would be sealed and sent to the parties or their solicitors.  The draft from which the copies were taken was retained unsealed on the court file.  If anyone thereafter asked for an order, a further copy would be taken, sealed in the way described and sent to the requesting party.

9.	It was suggested by counsel for the claimant that this prevented it being possible to be sure that any subsequent order issued in this way was in truth a copy of the order made because there could, hypothetically, be any number of drafts on the file.  I reject that contention as being unrealistic and unsupported by evidence.  In fact, the check is provided by the summary of the judgment on the record card to which I have referred above.

10.	On 24 March 1992, Abbey applied for a possession warrant.  To get its warrant, Abbey had to certify that the land had not been vacated in accordance with the order for the recovery of possession.  This provides some further evidence that the order was in fact made as the record card suggests.

11.	On 6 April 1992, Brentford sent to the claimant a letter in standard form in these terms:

“Plaint no 9000946-A2157.  Take notice that a Possession Warrant has been issued for the recovery of [as above] and Bailiffs will attend on Tuesday, 12 May 1992.”

On 1 May 1992, Abbey wrote to the claimant in these terms:

“Dear Mrs Miller, 

I write to confirm that on receipt of the payment of £709.00 received 30 April, the eviction that was to take place on 12 May 1992, has been cancelled.  I trust that the above is to your order.”

On 30 April 1992, the claimant wrote to the court in these terms:

“Please be advised the payments have been made in accordance with Building Society requirements and as Abbey National plc have agreed to cancel the order for Possession on 12 May 1992.  A situation developed when two of my customers did not honour their cheques which I had deposited in my bank account and subsequently the bank returned my own cheque to the Building Society.  I was not aware of any problem at the time as I was confined to bed with the flu.  On my recovery and becoming aware of what had happened, I immediately paid cash due.  I had been in contact with the Building Society when I received notice from the court on 7 April 1992.  Apparently, the process had already begun.  They have agreed to cancel and are sending a letter to confirm when I again spoke to them for confirmation.  

Yours faithfully [et cetera].”

It is significant in my judgment that at no stage in this process was it suggested by the claimant that no possession order had been made, even though she was aware of the process that had been gone through following the interlocutory steps taken prior to 5 November 1991.  This is significant because her oral evidence to me today was at this stage she has no personal recollection of whether an order was made or not.  This is not altogether surprising given the passage of time and her age. However, the correspondence suggests to me that the claimant fully understood at the time that a possession order had been made.  Had the position been otherwise, she would have challenged the idea that possession could be obtained from her without a court order following a hearing of which she had been notified and given the opportunity of attending.

12.	There was an issue about service of the order.  It was suggested by the claimant’s counsel that the claimant might not have been served with a copy of the order and that she may not have attended on 5 November 1991 because, shortly before that date, the solicitors who had been acting for her had ceased to act for her. Again, this is a wholly unreal submission, in my judgment.  First, the events post 5 November 1991 referred to above simply do not support that as a likely hypothesis. Secondly, I was entirely satisfied by the evidence of the relevant court officials that, in the event the defendant’s solicitor’s details had been crossed through on the record card prior to 5 November 1991, the order would have been sent to the defendant at the address for her on the card, being the property’s address. Thirdly, I reject the contention that a reference to a “Miss Denne” in the box for the defendant’s name had any relevance to this issue, contrary to what was suggested by the claimant’s counsel.  The phone number for Miss Denny is clearly that of the claimant’s solicitor and, more importantly in my judgment, there is no address for the defendant other than that I have referred to.  Thus the claimant’s hypothesis does not work.  If the solicitor’s name and address had been crossed through prior to 5 November 1991 and even if Miss Denny’s name was where it now appears on 5 November 1991, there was still no address to which the order could be sent other than the property address.  If solicitors were still on the record and had they received a copy of the order, it is inconceivable that they would not have forwarded it to the claimant.  It is equally unlikely that they would have failed to inform the claimant of the hearing date if notice of the hearing was received by them, rather than the claimant.  This is so irrespective of whether the retainer had by then been terminated or not. I accept the submission of the defendant that on the material I have so far considered it is overwhelmingly probable that (a) the claimant knew of the hearing on 5 November 1991, (b) attended that hearing either herself or through her solicitors and (c) irrespective of whether she attended or not, she received a sealed version of the order made on 5 November 1991 shortly after that date.

13.	A further application for a warrant was made in December 1994.  From the record card, it would appear that various applications to suspend were made, culminating in a direction on 1 October 1995 by which a hearing due to take place on 6 October 1995 was vacated and a direction to relist with a time estimate of one day.  Thereafter, it would appear, nothing happened so far as the court was concerned until 2002.

14.	At this stage, I should record a submission by the claimant’s counsel concerning further records.  His concern is that there ought to be a further record card for the events which took place after October 1995.  That was one of the bases for his application that there should be an adjournment for the purpose of enabling an application for specific disclosure to be made. I reject the factual premise of this submission as wholly unsustainable.  The evidence from the various officials is that computerised recording of court proceedings was introduced in 1998.  The evidence is that nothing happened in the litigation between Abbey and the claimant between October 1995 and 2002.  The evidence of the officials was that records for the case in relation to events from 2002 forward were or would have been recorded by entries on CaseMan, the computerised court record system.  Thus, while I accept that if events had occurred after October 1995 that required recording, they would have been recorded on a further card, in fact, there were no such events and thus no further card.  The further events that occurred were recorded on CaseMan, not cards, because by then cards had ceased to be used.

15.	Out of court, a dispute continued between Abbey and the claimant concerning the amount of arrears that had accumulated before as well as after 5 November 1991.  In April 2002, Abbey applied again for permission to issue a possession warrant by reference to the 1991 order.  By then, Abbey had changed solicitors and it would appear it no longer had a copy of the order.  Mr Taylor, an employee of Abbey’s solicitors, filed a witness statement in which he said:

“4.  On 5 November 1991 This Honourable Court made an order that the defendant do deliver to the plaintiff (claimant) possession of the property known as 63 Eastmead Avenue, Greenford, Middlesex.
6.  I am unable to produce a copy of the said order as the file of papers received from the claimant who previously acted on its own behalf does not contain a copy of the same, and I have been unable to obtain a copy of the same from the Court as the Court file has been destroyed.
7.  The source of my belief as to the details of the order made is a copy of the record card of the Brentford County Court relating to this matter a copy of which is now produced to me and marked ‘TRT1’ which has details of the order endorsed thereon.”

16.	TRT1 was a copy of the front page of the record card to which I referred earlier in this judgment and which contained the note of the order prepared by Miss Fleming I have set out above.  The record card was destroyed by the county court on a date unknown but in accordance with procedures sanctioned by the Lord Chancellor and authorised by the Public Records Act 1958, as was the court file.

17.	The question then arises as to where the copy of the sealed order now available came from.  Where it came from is a matter of dispute. The defendant’s case is that on the balance of probabilities it could only have come from the claimant.  In the course of cross-examination there was a dispute between counsel as to whether this was admitted as a fact or not.  For reasons I gave at the time, I considered that this fact had not been admitted by the claimant.  It is the defendant’s case that the copy now available could only have come from the solicitors then acting for the claimant, who, under cover of a letter dated 24 June 2002, sent an admittedly incomplete bundle of pleadings and orders to the court.  It is submitted that inferentially the copy order must have come from the claimant’s solicitors. I accept that submission since, as at that date, the court did not have any copies of the order and the defendant did not either.  Thus the only place the copy could have come from was the claimant’s solicitors in the way I have described.

18.	As to whether the copy included within the bundle was a copy of the original sealed copy sent to the claimant, that is not something on which there is any direct evidence.  However, logically, it can only be either (a) a copy of the original sent to the claimant or (b) a copy of the original sent to Abbey.  There is no evidence at all to support the hypothesis put forward by the claimant’s counsel that it was a copy generated years after the event by the court at the request of either the claimant or possibly the defendant.

19.	The claimant sought to challenge the arrears Abbey claimed as the basis for its application for a warrant.  After various procedural steps I need not take time describing, there was a hearing before a district judge at Brentford in which the judge held that the claimant could not go behind the arrears recorded in the 1991 order.

20.	On 6 April 2004, an appeal was commenced, which was heard in the end on 12 July 2004 by HH Judge Edwards.  He set aside the district judge’s order and ordered that an account be taken of the arrears that had accumulated.  He further suspended the warrant for possession and directed that any application for permission to appeal the 5th November 1991 order be made by no later than 26 July 2004. Such an application was made and was heard and dismissed by HH Judge Edwards on 29 November 2004.  It was not suggested in the course of that appeal that the 1991 order had never been made.  Indeed, an appeal is inconsistent with such a contention.  However, it was contended that the claimant was not aware such an order had been made, which is a different point entirely.

21.	Notwithstanding all of this, the claimant sought again to challenge the arrears recorded in the 1991 order.  This led to yet another hearing before HH Judge Edwards in which the claimant’s case on this point was rejected.  The judge concluded that the starting point for the taking of the account he had ordered were the arrears recorded in the 1991 order, which was unassailable, being res judicata between the parties. From this, there was an appeal following the grant of leave by Silber J, which was heard by Langley J on 14 June 2006.  The judgment is at E1525.  Having recorded some of the history and in particular the previous decisions and orders, which apparently address the question of the level of arrears, Langley J said:

“5.  It may be wondered how, in those circumstances, the matter can still be live.  But to my mind, by the wholly misplaced ingenuity of counsel it was sought to contend that the claimants were estopped by convention from seeking to rely on the November 1991 order as conclusive as regards the amount of arrears at its date.  It was argued that there was a common understanding of the parties manifested, it seems, in and after 1995 and until 2002 or 2003 that the appellant should be allowed to question the amount of arrears prior to November 1991 notwithstanding the terms of the order.  
6.  In a sense, that proposition, granted the failure to advance it over the intervening period, or on the application to appeal out of time, is one which would be viewed with natural scepticism if not incredulity …
9.  Mr Wolman, for the appellant, has now also sought to argue that in any event the November 1991 order itself is ‘of no validity’ because it does not bear the name of the judge who made it nor a very clear sign of a court seal and, in a submission made late yesterday evening, for several other reasons.  It is again, in my judgment, far too late for such points to be raised.  In any event, they also show an ever increasing departure from any sense of reality.  The points were not before His Honour Judge Edwards and form no part of this appeal in principle but I think they should nonetheless be addressed, as otherwise they may yet feature in future proceedings which would be of no benefit, in my judgment, to anybody.  
10.  The application for permission to appeal the order out of time, and the whole basis of the present proceedings before His Honour Judge Edwards was that the Order was (as in my judgment it plainly was) properly made and effective as such, absent appeal or estoppel.  The appellant should not be allowed to resile from that.  Moreover, after the passage of time in this case, it is hardly a surprise that the paperwork cannot be made available or is not in apple pie order, if indeed (as to which I am far from convinced) that is the case.  For years, the parties have proceeded on the basis of the order.  The copy of it in the papers came from the court.  There is no possible basis on which it could be disputed that there was a court hearing and that it resulted in a suspended possession order in the terms of the order before the court.  The order itself records both parties were represented by solicitors on the occasion it was made.  Although the appellant does not recall that, I think she must be wrong about it.  After all, she must have realised the importance of the proceedings and no doubt, the need to comply with the terms of the resulting order which I am told she did indeed seek to do.  As I said, ever since, the parties have proceeded on that basis.  Edwards J was right.  The appeal must be dismissed and I reject the further submission that the November 1991 order was or is to be considered in any way to be invalid or ineffective.”
(Quote unchecked)

22.	From that, there was a further appeal to the Court of Appeal, this time with leave obtained from a single lord justice.  By the time this appeal came to be heard, the position of the claimant (who I emphasise has been represented during this part of the proceedings at all stages by the same counsel) was that she was neither present nor represented at the hearing on 5 November 1991 and heard nothing about it until sometime in late 1994.  I reject that case for the reasons already given.

23.	The appeal came before Laws, Carnwath and Moore-Bick LJJ on 8 February 2007.  Insofar as it is material, in the leading judgment Carnwath LJ said:

“Mr Wolman submitted that at the very latest it is evidence that the order was not ‘perfected’ and that, not being perfected, it cannot be treated as a valid order and, indeed, that the parties including the courts have all proceeded on a mistaken basis ever since.  That suggestion seems in itself not to be self-evident.  The only evidence about it, if it can be called evidence, is a letter from the court manager of Brentford County Court in which he says in answer to a question from Mr Wolman himself in her letter dated 22 September 2006:
‘The original order on the court file would not be sealed.  This is because copies of orders are frequently requested and the original would need to be photocopied and then an original seal stamped on it.  If the original file copy was sealed, the seal would come out on the photocopy and it would make it difficult to distinguish the photocopied seal from the original.  This procedure is standard practice in civil courts.  I hope this answers your query.’
Mr Wolman says that that is clear evidence that the order was not sealed because, in those days, Brentford County Court apparently had a practice of not sealing orders.  At the same time, he has referred us to various decisions in which apparently sealed orders of Brentford County Court in that period have been referred to.  I only need to refer to that letter to illustrate the sort of issues which would need to be gone into if it was seriously to be suggested that there was a systemic failure by Brentford County Court in that period to seal any of its orders and that, as a result, all those orders were invalid …
17.  I would add, in any event, that for my part I would entirely agree with the way in which the judge dealt with this matter.  Even if there was evidence that this order was not validly made, it seems to me that, like him, it is far too late to take the point.  The respondent in its skeletons has referred to Johnson v Gore Wood & Co [2000] UKHL, in which the House of Lords discussed the principles of abuse of process …
18.  It seems to me that in this case, where all the parties have proceeded on the basis that there was a valid order, where the applicant herself sought relief on the basis that there was a valid order and has obtained a consent and indeed continued suspension of the original order, that it would be an abuse for her to be allowed some 16 years later to take the point that the original order was not valid.  For those reasons I would dismiss the appeal.”
(Quote unchecked)

In the course of a short concurring judgment, Moore-Bicks LJ said at paragraph 21:

“The questions that Mrs Miller seeks to raise in relation to the 1991 order give rise to issues of fact as well as law, which in my view are not susceptible of being determined for the first time on an appeal to this court.  But quite apart from that, I am satisfied for the reasons give by the judge below and by my Lord, Lord Justice Carnwath, that it is now too late for Mrs Miller to challenge the validity of the order.  I too would dismiss the appeal.”
(Quote unchecked)

Laws LJ agreed with both judgments.

24.	An issue arose in the proceedings before me as to whether the points now relied on were available at all in the light of what the Court of Appeal said.  As to this, I do not consider that it can be said with certainty that the Court of Appeal dealt with or intended to deal with the existence point now being litigated before me.  The comments made concerning the validity points are at least, arguably, obiter.  Thus the better course is to address these issues by reference to the merits and the more fundamental abuse points relied upon by the defendant’s counsel, rather than simply to dispose of these proceedings on the basis that they are not available by reason of the contents of the Court of Appeal judgment to which I have referred.

25.	It is convenient to start by noting that what in essence is alleged against the defendant in these proceedings is that the defendant acted in breach of statutory duty by failing to keep proper records of proceedings and/or by issuing orders bearing the seal of the court by copying an unsealed copy on the court file and then sealing that copy.  All of this is to be used as a springboard for an attack on the relief sought by Abbey in the Brentford County Court.

26.	In relation to the copy order now extant, I am satisfied that it is in fact a copy of the sealed order sent either to the claimant or to the defendant shortly after the hearing on 5 November 1991 for the reasons already set out above.  There is no evidence to support the factual contention that the copy is of a sealed document produced years later, as is the underlying thesis relied upon by the claimant. It was submitted by the claimant’s counsel in the course of his closing submissions that the method of production of orders by Brentford County Court described above meant that no original orders were ever sent to the parties.  I reject that submission as wholly wrong.  The method of production involved copying an original draft and then sealing the copies thus resulting.  The copies, once sealed, were original orders.  The original draft was just that: a draft.  The fact that the documents that were sealed were produced by photocopying rather than copying out by hand the same document umpteen times is wholly irrelevant, in my judgment, as long as the document itself resulting from the copying process was sealed.

27.	Next, it is said that no relevant record has been kept by Brentford County Court and, if that is so, it would preclude Abbey from proving the existence of the 1991 order and thus Abbey would not be able to get its warrant.  This submission is advanced on the basis that the copy of the order currently in existence is not self-proving because it is not either an original or a certified copy.

28.	Putting to one side for a moment the question of whether a judgment can be proved by secondary evidence, I reject the suggestion that the county court failed to keep relevant records as being without any substance at all.  The obligation to keep records is imposed by section 12 of the County Courts Act 1984, which provides:

“(1) The [district judge] for every district shall keep or cause to be kept such records of and in relation to proceedings in the court for that district as the Lord Chancellor may by regulations made by statutory instrument prescribe.”

The statutory instrument there referred to is the County Court (Records of Proceedings) Regulations 1967.  Regulations 2 and 3 provide:

“2. The registrar of every county court shall keep or cause to be kept the records of proceedings in that court specified in column 1 of the Schedule to these Regulations and those records shall constitute the books of the court.
3. Without prejudice to any requirement imposed by or under any enactment every record kept pursuant to the last foregoing Regulation shall contain in relation to each proceeding appearing in the record the details specified opposite thereto in column 2 of the said Schedule.”

In relation to proceedings of the sort now under consideration, an action for possession, the records required to be kept are:

“(a) The names, addresses and descriptions (if any) of the parties; (b) The nature and amount of the claim or the nature of the relief sought; (c) Concise minutes of the proceedings, including a note of any judgment given, order made or decree granted”. 

- see column 2 to the schedule to the statutory instrument, paragraphs a to c.

29.	The evidence from Mr Bennett was that prior to 1970 the county court records were kept in cause books.  The information contained in the cause books was entered therein by court officials and the records were entered in plaint number order for the relevant year.  In 1970, those records were replaced by record cards, of which the record card referred to above is an example.  The form of record cards never changed while they were in use and they continued in use until 1998 when CaseMan, the computerised record facility, was introduced. I accept all that evidence and I accept that no other relevant records were kept at the relevant time.

30.	It was submitted by the claimant’s counsel that the record cards did not satisfy the requirements of the regulations and thus, in truth, there was no relevant record maintained from which the making of the 1991 order could be proved. I reject that submission as being without foundation.  The regulations do not specify any particular form in which scheduled information is to be kept, any more than does the statute. The information that is required to be recorded all appears on the record cards.  Thus the name and address of the parties appears.  The description if any appears (see the description of the claimant on the record card in this case).  The nature of the claim appears (in this case that it is a possession claim) because there is a tick in the box marked “possession” on the bottom right-hand side of the front of the record card.  The nature of the claim is described in the box marked “what is claim for” where the description “possession of the above” appears.  In context, that can only mean possession of the property whose address is given as that of the defendant, namely the address of the property.  I am entirely satisfied that the document contains a note of the relevant judgment or order, namely that written by Miss Fleming in the box marked “details of judgment/order” to which I have referred above.

31.	It was submitted that the document was defective because it did not contain or contain provision for concise minutes of the proceedings.  It seemed at one stage to be suggested that this ought to include notes of what happened at every hearing, other than noting the terms of orders made. As ro this submissions, first, I am satisfied that, in context, the word “proceedings” means the particular claim for which the record card is created.  In those days, county court proceedings were characterised as being either actions or matters and “proceedings” is simply a generic description of both. Secondly “concise notes” include matters concerning the lodging of bundles and the receipt of letters and other notes relevant to the proper administration of the process, nothing more and nothing less.  I am simply not able to accept the claimant’s submission in regards the record cards.  They are the records of the court, kept in accordance with the statutory instrument, and thus they are the books of the court. It was suggested that in some way, because the, or a, district judge did not supervise this process the record cards could not be records.  I reject that proposition.  The duty imposed on the district judge is to cause records to be kept.  If officials in fact keep those records, the duty is complied with.

32.	The next point to consider is the role, if any, played by secondary evidence in proving an order of the county court.  It is submitted than an order can be proved only by the production of either the original sealed order or a certified copy of the sealed original order or production of the records of the court or a certified copy of the records of the court.  None of this can be done because the original sealed orders have been lost and the original records of the court have been destroyed pursuant to the destruction procedure authorised by statute.  Thus all that is left is the uncertified copy of the order and the uncertified copy of the record to which I have referred above.

33.	It is submitted that secondary evidence of such materials is not and never has been admissible, at any rate, to support a claim for estoppel by record.  If correct, the outcome would be extraordinary for it would mean a successful litigant could be deprived of the fruits of his litigation by the negligence of officials in failing to record an order or judgment or by an accident such as destruction of the records in a fire or by flooding or by the destruction of court records pursuant to an authorised destruction programme.  Such an outcome is counterintuitive and, in my judgment, plainly wrong.

34.	I fully accept that extrinsic evidence is generally inadmissible in substitution for judicial documents.  This is simply an application of the best evidence rule.  However, that rule assumes the availability of the best evidence.  If such material is not available, secondary evidence becomes admissible.  In my judgment, this is so as much in relation to orders and records of the court as it is in relation to other documents. So in  MacDougal v Young [1826] Ry & M 393 it was decided that where judicial records have been lost, they can be proved by secondary evidence.  As Lord Best CJ said in that case:

“I do not receive the payment of tithes in one parish as evidence of the right in another, a custom in one parish cannot be proof of any custom in another; but when I find in the printed statutes a copy of this decree, and find that no enrolment now exists, I think the plaintiff is entitled to go into secondary evidence of its having been enrolled, otherwise parties would be prejudiced by the negligence of those who have the custody of the records.  The best secondary evidence would certainly be that the decree has been acted on in the parishes affected by it.”

To like effect is Dyson v Wood [1824] 3 B&C 449, where the issue concerned the proof of the judgment of an inferior court.  In the course of his judgment in those proceedings, Lord Abbott CJ said:

“It is not a Court of Record, and it is not necessary to enquire whether it be the duty of the steward to make an entry of the proceedings, but supposing that to be so, and he neglect to do his duty, I cannot say that the judgment has absolutely no effect.  Giving the largest construction to the words of the replication, they may be considered to import that no memorandum exists or ever was made, and if so, the steward might be guilty of a misdemeanour by his neglect.  But if he do so neglect his duty, that ought not to deprive a party of his judgment.  For the question, whether the judgment was given for him in such a court is a matter of fact, the entry would merely give him a facility of proof which he would not otherwise have …
But a judgment may be proved as a fact, and by other evidence than a written memorandum; and that being so, the effect of this replication is not to deny that judgment was given in the court below, but merely that it is not capable of being verified by a particular species of proof.  It is therefore insufficient, and judgment must be for the defendant.”

In my judgment, these decisions are clear authority for the proposition that secondary evidence is admissible.

35.	Here in my judgment there can be no doubt that there is adequate secondary evidence of the 1991 order.  Copies are now admissible, providing they are authenticated - see section 8 of the Civil Evidence Act 1995.  Here the copy order and copy record of the order are both authenticated by Miss Fleming, who described in great and compelling detail the method by which these documents had been prepared by her.  I accept that evidence. I accept there may be cases where it can be said that the fact that the copy had been in the custody of third parties for any material time might diminish or extinguish the value of the copy as secondary evidence.  However, this case is not one of those.  It was not suggested by or to Miss Fleming that the copy had in any way been tampered with and there is nothing on the face of the document to suggest it had been. Counsel for the claimant at one point suggested that the arrears figure might have had a 7 added to the front of it.  But that extraordinary suggestion was never put and Miss Fleming’s evidence, which I accept, is that the document is in her writing.

36.	I now return to the relief sought in these proceedings.  I have very great doubt as to the utility of the declarations sought for the purpose they have been sought.  Not merely would the declarations not be binding on Abbey if granted but, in any event, there is ample secondary evidence from which the existence and terms of the 1991 order could be proved.  Thus the exercise with which I am concerned is entirely pointless and, as such, in my judgment, is an abuse of process and one which the court should not embark upon. 

37.	In any event:

a.	I am satisfied that the record cards are the books of the courts for the reasons I have given already, that they were properly kept and eventually were destroyed in compliance with the document destruction programme sanctioned by primary legislation.  Secondary evidence of the record is admissible and here proper secondary evidence in the form of the copy of the record card coupled with the oral evidence of Miss Fleming, in my judgment, proves the record to be as set out in the copy. For these reasons, there can be no question of the court granted declarations to the effect prayed for in paragraphs 6 and 7 of the particulars of claim.
b.	Further, as set out above, on balance I conclude that the copy order is a copy of the original sealed order sent to either the claimant or Abbey in 1991.  I reject the suggestion it was brought into existence at a later date on the balance of probabilities but, even if it was, it does not matter.  The terms of the order match the note of the order which appears in the record of the court proved as stated above.  The order was drawn by Miss Fleming in her handwriting and, because it reflects the note she made in the records of the court, I am satisfied that the copy had been appropriately authenticated by the evidence before me.  It follows that a declaration in the terms sought in paragraph 5 of the prayer must be refused; and
c.	The suggestion that the sealed orders sent to the parties in 1991 were not originals is to be rejected for the reasons given above.  Thus the declarations sought in paragraphs 1 to 4 of the prayer are refused as well.
In summary, these proceedings are factually and legally misconceived and abusive, in my judgment, because they fail to join all the relevant parties and because the relief sought in the claim as formulated could have no practical utility in any event.

38.	It is necessary to consider briefly the claimant’s counsel’s application to abort the trial.  Aside from the fact that such a course would result in yet more delay and yet more expense, it seems to me that the application is flawed for the following reasons:
a.	The application to join Abbey at this stage would serve no useful purpose because 
i.	Abbey could properly apply to strike out the proceedings on Johnson v Gore Wood grounds and/or on the basis that the point should be deployed, if it is deployed at all, in the Brentford proceedings, but in any event
ii.	It would not serve any useful purpose because Abbey would be entitled to rely upon secondary evidence if called upon to prove the order.
b.	The suggestion that standing over the trial would enable disclosure to be sought of additional post-1995 record cards has no substance because I am satisfied on the evidence that there are no such cards.  No material events occurred after 1995 until 2002.  In that time, the cards had been phased out and CaseMan introduced.
c.	The further suggestion that the trial should be stood over to allow an application to be made for the disclosure of the material considered by the defendant prior to the rollout of CaseMan is also to be rejected.  The material is sought on the grounds that it might throw light on whether the cards were the books of the court.  This inquiry could serve no useful purpose.  The fact is that there were no other records at the relevant time other than the cards which, as I have held, satisfy the statutory requirements for the records of the court. It is that last point that matters not how the cards were or might have been regarded by the author of some as yet unidentified report or memoranda that might or might not be in the custody or control of the Department for Justice.

39.	I regret to say I regard the failure to join Abbey to these proceedings in the first instance to be a stratagem.  I regard the late application at the end of the trial to stand over the trial to be equally a stratagem.  In his judgment, Langley J referred to the misplaced ingenuity on the part of the claimant’s counsel and to the points taken as showing an ever-increasing departure from any sense of reality.  I regret to say that those comments apply with at least equal force to these proceedings.

40.	In the result, I dismiss the claims.  Furthermore, I do so on the basis that they are wholly without merit.

Permission To appeal and Costs Ruling

41.	I have before me an application for permission to appeal the judgment I have just given.  In delivering this judgment I remarked that the case before me, like that before Langley J, demonstrated misplaced ingenuity on the part of the claimant’s counsel and an ever-increasing departure from any sense of reality in relation to the points relied upon.  Regrettably, those remarks apply equally to the application for permission to appeal.

42.	I do not intend to go through the various points which are relied upon in any detail.  The conclusions it is sought to attack are in essence, ones which enable the disputed order to be proved by secondary evidence.  On the evidence, first, there can be no realistic prospect of attacking the findings of fact I have made and, second, the conclusions of law I have reached are, in my judgment self-evidently correct.  Thus I do not consider there is any realistic prospect of success in appealing my order and therefore permission is refused.

43.	So far as costs are concerned, I have an application for costs to be assessed on an indemnity basis by the Secretary of State.  This is met by the suggested submission that in some way costs should be reduced to take account of late evidence being filed.  At the same time, however, the Secretary of State has indicated he intends to apply for a wasted costs order against the solicitors who act for the claimant and/or counsel.

44.	It seems to me desirable in those circumstances that all issues concerning costs be dealt with at the same time.  Since a wasted costs order could not possibly be made until adequate provision has been made (1) for the issue of the application, (2) for the filing of evidence in answer to it but, above all, (3) for an opportunity to be given for the recipient of the application (whomever he or they should be) to seek proper advice in relation to it. Thus it seems the only correct course as far as costs are concerned is to stand over the question of costs to be resolved at the same time as any application for the determination of a wasted costs order application. With that in mind, I direct that any application for a wasted costs order is to be issued and served, together with all the supporting evidence relied upon, no later than 12 December 2008.  I will allow the respondents to any such application until 30 January 2009 to file any evidence in response, which would give them the opportunity to seek proper advice in relation to it.  I direct that evidence in reply shall be filed by 13 February 2009. The application to show cause in relation to any application for wasted costs plus all other costs issues is to be listed on the first available date after 20 February 2009 before me at the Manchester Civil Justice Centre.