In re Norris

Under the Drug Trafficking Offences Act 1986, a third party must receive a reasonable opportunity in High Court enforcement proceedings to make representations about an interest in property. That opportunity includes asking the court to reopen a Crown Court finding, but it does not require the court to do so. Reopening may be justified where the third party was not heard, fresh evidence entirely changes the case, or the Crown Court was wrong in law. Where the third party had a fair opportunity, adequate representation, and seeks to re-litigate on the same or substantially the same evidence and submissions, refusal is proper as an abuse of process.

Clifford R Norris was convicted of drug-trafficking and firearms offences. The Crown Court made a confiscation order and found that the matrimonial home, held in his wife Teresa W Norris’s name, was beneficially owned by him. After the order remained unpaid, the High Court appointed a receiver. On the wife’s application to vary that order, Latham J refused to reopen the Crown Court’s finding on ownership. The appeal concerned whether a third party who had given evidence at the confiscation hearing, but had not been a formal party, could require the High Court to reconsider the same property-interest issue.

Disposition

The Court of Appeal unanimously dismissed the appeal. The order appointing a receiver was not varied, and legal aid taxation was ordered.

1. Statutory framework. The Drug Trafficking Offences Act 1986 values only the defendant’s interest in realisable property and recognises third-party interests. Section 11(8) makes it mandatory to give persons holding an interest a reasonable opportunity to make representations before the relevant enforcement powers are exercised. That opportunity includes a request to reopen findings made by the Crown Court, but the High Court is not bound to grant the request.
2. Reopening and abuse of process. Reopening may be appropriate where the third party was not heard and has a good arguable claim, where fresh evidence entirely changes the aspect of the case, or where the Crown Court decision was wrong in law. Consistently with Hunter v Chief Constable (1982) AC 529 and Ashmore v British Coal (1990) 2 QB 338, the categories of abuse of process are not closed. A third party may be prevented from re-litigating an issue decided in earlier proceedings where there was a fair opportunity to present the case and the proposed case relies on the same or substantially the same evidence and submissions.
3. Application. The wife and defendant had made common cause. Her evidence was substantially the same as that proposed in the High Court and had been adequately presented through leading counsel for the defendant. Her lack of formal party status and absence of a right of appeal caused no real disadvantage. Re-litigation in the hope that another judge would accept the same evidence would therefore be an abuse of process. The court rejected the broad reasoning in Re K (unreported: 3/7/1995) that the High Court had no jurisdiction in any circumstances to reopen the Crown Court’s findings, but upheld the result on the narrower abuse-of-process basis.

• Court of Appeal (Civil Division) — [2000] EWCA Civ 14: dismissed the appeal and ordered legal aid taxation.
• High Court, Queen’s Bench Division — Latham J appointed a receiver over the defendant’s property and refused to vary the order to permit the appellant to reopen the Crown Court’s ownership finding.