LEGALISTIC WHIMSY… AM I WRONG?
Spellen & 6 Ors v Santander & 6 Ors [2023] EWHC 1361 (KB)
On 21 April 2023, Master Thornett called a hearing of seven test cases where seemingly entirely unconnected claimants had issued materially identical Part 8 claims in the High Court. Master Thornett suspected a scheme or unidentified guiding hand behind the claims as designed to confuse, delay or otherwise attempt to thwart County Court mortgage possession proceedings.
[17] At the start of the hearing an individual entered the courtroom about ten minutes into the hearing, positioned himself in front of Counsel’s bench without introducing himself and then continued to operate the screen on his mobile phone. When asked to introduce himself he said he was “Beresford”. He declined to indicate he had any other name and, when pressed, provided his address as 124 City Road, London, EC1V 2NX. When asked to clarify whether he was either a party or a legal representative of a party, he confirmed he was neither. In language that was distinctly archaic but otherwise difficult to understand, he said he proposed to satisfy the court that all of the respective debts had been settled. He also observed, however, that the court was not correctly convened unless Master Thornett could identify “the clerk of the court”. When it was made clear that unless he was either a party or legally qualified with rights of audience, he had no right to conduct the litigation of others, whether they were present or not, “Beresford” left.
Beyond Beresford, there is no single name for the scheme in question. Despite the commonalities between the versions, the claims disclosed no single movement. The only uniformity was that the claim forms all featured similar assertions and rhetorical questions, ending with the following procedurally curious invitations to the court:
‘Does the Court see any reason why this claim should not be sealed on sight, as the Defendants have agreed in Absolute, to all the terms in the Original Affidavits and Addendums, am I wrong?’
‘Does the Court see any reason why they should not Compel the Defendants to specific performance of dispersal of funds due to the Claimant?’
‘Does the Court see any reason why the Defendants accounts should not be levied should the (sic) fail to perform?’
Master Thornett observed:
“[It was] readily apparent to anyone with even basic legal training that non-existent – or at least considerably adapted – legal terminology has been strung together to maintain a submission (interpreting the material as favourably as one can) […] the plainly legally erroneous nature of all of these claims is such that the time and resources spent considering each, arranging a combined attended hearing on 21 April 2023 through to this reserved judgment would not normally be justified. Taken in isolation, each claim would justify summary disposal without a hearing, and still less the time and expense of attendance of each defendant.”
Master Thornett, considering the colourful submissions of Counsel for the Defendants, concluded:
“Some counsel addressed me as to the commonality and similarity of the claims to those adopted by certain interest groups; one of which as is self-entitled the “Freemen on the Land”. As I commented at the conclusion of the hearing, the court in these cases has not directly been concerned with any ideals or philosophy underlying the claims. Very much to the contrary, its concern has been to stem what seems to have been a concerted plan to subvert - without realistic or rational conviction - collateral proceedings and decisions in possession proceedings in the County Court, all which constitutes an abuse of process.”
“The failure [of all Claimants] to attend court on 21 April 2023 and to justify [their respective positions] satisfies me that proceedings are and were an abuse of process from the outset, primarily because the inevitable conclusion the claim was always a wholly unfounded collateral attack on concluded County Court decisions”.
It should be understood that the reported case law is the proverbial tip of the iceberg. In Meads v. Meads, 2012 ABQB 571, Associate Chief Justice JD Rooke commented:
“[Similar schemes] as brought before this Court have proven disruptive, inflict unnecessary expenses on other parties, and are ultimately harmful to the persons who appear in court and attempt to invoke these vexatious strategies. Because of the nonsense they argue, OPCA litigants are invariably unsuccessful and their positions dismissed, typically without written reasons. Nevertheless, their litigation abuse continues. The growing volume of this kind of vexatious litigation is a reason why these Reasons suggest a strong response to curb this misconduct.
Beyond that, these are little more than scams that abuse legal processes. As this Court now recognizes that these schemes are intended for that purpose, a strict approach is appropriate when the Court responds to persons who purposefully say they stand outside the rules and law, or who intend to abuse, disrupt, and ultimately break the legal processes that govern conduct in Canada. The persons who advance these schemes, and particularly those who market and sell these concepts as commercial products, are parasites that must be stopped.”
The decision will prove a helpful indicator of how such schemes will be dealt with; were they to attempt a return to the Courts of England and Wales (or Canada) – but, furthermore, the case provides a more recent understanding and reminder of the Court’s powers and approach to statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognisable claim or defence.
This case summary was composed by Joshua Cullen, who appeared as Counsel for the Defendant, Oakwood Homeloans Ltd in Claim No. KB-2022-003554.