Neutral Citation Number: [2013] EWHC B42 (QB)
Case No: HQ11X03617
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Strand
London
WC2A 2LL

Date: Thursday, 14th November 2013
BEFORE: MASTER KAY Q.C.
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BETWEEN:

DAVID ONAFEKO
Claimant
- and -

(1)  HALIFAX PLC
(2)  ANOTHER
Defendants
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The Litigant appeared in Person
MR JULIAN HORNE (instructed by Lance Mason) appeared on behalf of the First and Second Defendants
MISS CHARLOTTE FORD (instructed by Swift Legal) on behalf of the Third Defendant

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Judgment
MASTER KAY Q.C.:    

1.	This is a case in which the first and second defendant submit that the claimant’s claims against them should be struck out and alternatively they are entitled to summary judgment to be entered in their favour.

2.	By another application dated 11th November 2013 the claimant, Mr Onafeko, cross-applied asking for an order for summary judgment in his own claim and certain ancillary and supplemental directions in respect of the earlier orders made.  In respect of that application Master Leslie ordered that it should be heard today if time permitted and we have done our best and I have heard both sides in respect of these matters.

3.	The background to this case is that in January 2004 the claimant took out a mortgage with the first defendant in relation to the property then owned by Mr Onafeko.  At the same time or very shortly after the claimant also took out PPI insurance with the second defendant, which is Halifax Insurance (Ireland) Limited and is part of the same group, so I am told, as the first defendant. Indeed, Mr Onafeko says that he was introduced to the second defendant by the first defendant.

4.	It is apparently the case that the PPI policy was on an annual basis so that a payment of some £9,187 odd was necessary in order to make good the mortgage repayment sums which were necessary to keep the mortgage going.

5.	Subsequent to that, some three years later in June 2007, the claimant took out a loan from the third defendant, for a completely different matter.  It was not based on a mortgage, it was done to obtain further payments from the lenders, but nonetheless it was secured on the same property so there was a contractual security provided by that agreement.

6.	In March 2010, I am told by Mr Horne, the claimant made a claim under the PPI policy, because he was in arrears for his contract, he was not working and he therefore needed the money to pay off the mortgage at that stage.  For technical reasons the second defendant refused to pay out under the policy and at that point the claimant was very much in arrears and therefore, could not pay the mortgage.  I should add that I am told that at the same time the claimant was also significantly in arrears in respect of repayments due to the third defendant after that loan agreement.

7.	On 1 October 2010 the claimant issued proceedings against the second defendant in Dartford County Court and the issue in that was whether or not he was entitled to recover monies under the PPI policy. Following that the first and third defendants sought orders for possession of the Hanover Road property in order to recover the outstanding sums due, as they were entitled to do, both under the mortgage and under the loan agreement.

8.	Although both the first and third defendants obtained such orders, it was only in fact the third defendant who executed the order and they obtained possession of the property and in due course it was sold.

9.	One of the complaints made by Mr Onafeko is that it was sold, he says, at an undervaluation. Another of his complaints, as we can see from his Particulars of Claim, was that a number of his possessions have been lost and damaged. In the Particulars of Claim, the claimant asks for is firstly, immediate return of property if not sold; secondly, against all the defendants, again for the proceeds from any sale or rental of the property; thirdly compensation and/or damages against the second defendant for breach of insurance contract relating to unemployment benefit including any liability for extra costs arising from such breach; fourthly for determinations as to which of the excessive charges applied to the claimants cover from the first and third defendants are allowable; and fourthly compensation and/or damages against the all of the defendants, relating to loss of personal belongings to be assessed and/or to any belongings which are still in the possession of all of the defendants. Further for compensation and/or exemplary damages for negligence, inconvenience and stress against the defendant, compensation and/or damages for any data protection breaches and an injunction.

10.	I should hesitate at that moment in time to say that although this application for a summary judgment is made by the first and second defendants, it is not made also by the third defendant who recognises that on the face of the pleadings there are actual issues which they may have to deal with in due course.  So they are not party to this particular part of the application.

11.	Now, what is said by Mr Horne, on behalf of the first and second defendants, is that each of the claimant’s claims made against those two defendants, is either an abuse of process or alternatively it discloses no reasonable grounds for bringing the claim or is in breach of a court order and/or is liable to summary judgment in favour of the defendants, I think on the basis he says, that they show no real prospect of success.

12.	The principles relating to summary judgment and strike outs, are very clearly set out in the White Book and I do not intend to set them out at any length.  But dealing with the points made by Mr Horne, firstly, the claimant has sought damages from the second defendant for its failure to pay him what he says was due under the PPI policy and consequential losses.  What Mr Horne says is, that is a claim that has already been brought in the Dartford County Court.  It was disposed of by the District Judge in the Dartford County Court although there are some questions about what happened in respect of the appeal (the appeal was heard before his Honour Judge Simpkiss although unfortunately Mr Onafeko was unaware or did not know of the hearing date which took place in Brighton). Nonetheless, the application for permission to appeal before his Honour Judge Simpkiss was dismissed.  In addition, on the grounds expressed by the judge, it was held that the application showed no real prospect of success.

13.	Mr Onafeko says that, in any event he is still seeking to have that decision set aside and it follows that those proceedings are still continuing. There are two aspects to this.  If they are not continuing and if there has been a final decision, which is unappealed, it follows that the issue between the claimant and the second defendant has been decided by a competent court and cannot be further challenged unless permission to appeal is given.  That has not happened at the moment and so, as it stands at this moment in time there is a decision of a competent court which is against the claimant on this particular aspect. The second and alternative point is that it does not really matter very much whether or not there has been a decision of the Dartford County Court, because, as Mr Horne points out, it is an abuse of process of the court to proceed in two separate courts on exactly the point. That is, in my view, unanswerable.  Even if the Dartford County Court proceedings were still continuing, it seems to me that those are proceedings on the same point which are going on in two courts. That is an abuse of the process of the court. 

14.	I hesitate for just one moment there; because Mr Onafeko says I am asked to make an order staying the process until the final decision from Dartford.  To the extent that that is correct it is an interlocutory decision relating to a stay and it seems to me that it should be considered on its own merits.  If there is an abuse of process by virtue of the two separate sets of proceedings continuing at the moment, it seems to me the court can revoke its view about the earlier stay at any stage and review the situation as an abuse of process. If that is what I am doing technically, then so be it.  In any event, it seems to me that the claim against the second defendants in these proceedings stands to be struck out.

15.	The next point is what Mr Horne seeks to deal with as part of paragraph 4 of the Particulars of Claim that is the determination as to which of the excessive charges apply to the claimant’s account by the first and third defendants are allowable.  He says that the matter is unparticularised, it is vague and it should be struck out on that basis and he says in the alternative it does not accord or comply with Master Eyre’s order of 14 February 2011.  I agree with him on both points and therefore, that matter stands to be struck out as well.

16.	Mr Horne then turns to deal with the various remedies in relation to personal property, which as he says, are set out in paragraphs 1, 2, 5, 7 and 8 of the claimant’s claim. Insofar as they are made against the first and second defendant, I can see no possibility of these having any prospect of success at all.  The reality of this situation is it was the third defendant who took possession of the property; it is the third defendant who may, if appropriate, have some liability or some responsibility for the claimant’s goods which were in the property or indeed for any other of the compensatory claims made by the claimant.  It is incomprehensible that the second defendant should have any liability in respect of these at all.  

17.	Nonetheless, Mr Onafeko says that he has some doubts about the relationship between the first defendant and the third defendant and he has suspicions about what is going on in the background and if one looks at his skeleton argument what he is seeking to do at the end of the day is to raise questions of fraud. It is upon that basis I think he is asking for the veil to be lifted between these various parties.  Well in my view that approach is utterly without merit.  I asked him very specifically where in the Particulars of Claim fraud was alleged and he agreed initially that it was not.  That being said it is a matter which simply cannot be run at this stage.  It is not good enough for a party to come and say,  ‘in due course, I will produce evidence in the future of something’.  This is the opportunity to deal with these matters.  If it is not properly pleaded. He cannot run it.  In any event, I would like to say that, in my view, the claimant can have no prospect of success at all, real or otherwise.

18.	The next point raised by Mr Horne is the compensation and exemplary damages for negligence which arose from paragraph 6 of the claimant’s prayer and once again, Mr Horne says this is not properly pleaded and he says on that basis alone it should be struck out.  I agree.  It is not properly pleaded.  There is no cause of action properly set out in respect of either the first or the second defendant in respect of this matter.  It is a matter which can be struck out, because it has no prospect of success.

19.	That deals with all the prayers in respect of the first and second defendant.
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