Thorogood v Walker & Anor

An application to reinstate an application for permission to appeal should generally be refused where the applicant had notice of the hearing, chose not to attend, and cannot show a very strong case that attendance would have produced a different result. A Grepe v Loam order must be construed according to its terms. An order restraining proceedings concerning earlier litigation does not prevent unrelated applications in bankruptcy. Where a bankruptcy application would challenge the earlier judgment or matters decided in the earlier proceedings, the proper course is to seek leave or variation from the judge who made the order.

The applicant brought proceedings against a solicitor and his firm. Master Leslie struck out the claim and dismissed the action. Curtis J dismissed an appeal and made a Grepe v Loam order restraining further proceedings or applications concerning the earlier litigation without leave.

Applications for permission to appeal were adjourned and later refused by Latham LJ when the applicant did not attend. The applicant sought reinstatement. The application relating to the strike-out order was not pursued because the cause of action had vested in the trustee in bankruptcy. The remaining issue was whether the application for permission to appeal against the Grepe v Loam order should be reinstated.

1. Reinstatement. The applicant had notice of the hearing before Latham LJ but chose not to attend. Reinstatement therefore required a very strong case that, had he attended and advanced the arguments now relied upon, the court would have reached a different conclusion and granted permission to appeal.
2. Scope of the order. The Grepe v Loam order did not prevent the applicant from making applications in his bankruptcy merely because he was bankrupt. Its terms restrained challenges, without leave, to the summary judgment of 31 August 1994, other orders or judgments in the Clerkenwell County Court proceedings, and the truth or accuracy of matters decided or raised there.
3. Application in bankruptcy. A bankruptcy application unrelated to those matters was outside the inhibition. If a proposed bankruptcy application involved a challenge to them, leave was required. The appropriate course was to apply to Curtis J for variation of the order or for leave to make the particular application.
4. Disposition. There was no real prospect that the Court would interfere with the order. The application to reinstate permission to appeal against that order was refused. The separate application concerning the strike-out order was withdrawn and directed not to be pursued further. Legal aid assessment of the applicant’s costs was ordered.

• High Court, Queen’s Bench Division: Curtis J dismissed the appeal from Master Leslie’s strike-out order and made the Grepe v Loam order on 15 October 1999.
• Court of Appeal: Latham LJ refused permission to appeal on 24 May 2000 after the applicant failed to attend.
• Court of Appeal (Civil Division): The application to reinstate was refused in relation to the Grepe v Loam order. The application concerning the strike-out order was withdrawn.