Waldman v Mahajan

On an application for permission to appeal, a transcript is unnecessary where the lower court has given full reasons and the transcript would not assist in reviewing the decision. A litigant cannot reopen finally determined issues through a collateral challenge to the judgment, costs order or resulting bankruptcy order. Where a bankruptcy petition has been served under an order deeming service sufficient, the bankruptcy order will not be set aside without a real prospect of establishing defective service. Permission to bring serious dishonesty proceedings requires a careful balance between access to justice and the burden on proposed defendants. The court must be satisfied that credible evidence, or reasonable grounds for anticipating it, supports the allegations. An appellate court will not interfere with a properly exercised discretion.

Ashok Mahajan had lost a county court claim against Vivianne Bella Waldman concerning alleged payment for work. His permission application against that judgment was refused, and the resulting costs were certified. He was later adjudged bankrupt following service of a bankruptcy petition under an order deeming service sufficient.

Mahajan applied to Neuberger J to set aside the bankruptcy order and for permission to issue proceedings alleging conspiracy and dishonesty against eight defendants. On 23 July 2002, the judge dismissed the application concerning the bankruptcy order and refused permission to issue the proposed proceedings. Mahajan then sought a transcript at public expense, permission to appeal, and permission to adduce fresh evidence. The central issues were whether the transcript was necessary, whether service was valid, and whether the judge had properly exercised his discretion.

Lord Justice Aldous delivered the judgment, and Lord Justice Scott Baker agreed. Permission to appeal was refused. The applications were dealt with as follows:

1. The request for a transcript of the High Court hearing at public expense was hopeless. The critical material was the reasons given by Neuberger J, which were set out at length in the judgment. A transcript would not assist in deciding whether those reasons were correct.
2. The county court proceedings had reached finality. The refusal of permission to appeal had brought that dispute to an end. The certified costs were therefore a debt owed in law, and the applicant could not use allegations of conspiracy or dishonesty in later proceedings to reopen the underlying judgment or costs order.
3. The bankruptcy petition had been served properly. Mr Registrar Baister had ordered that sending a sealed copy of the petition and his order to the applicant would constitute good and sufficient service. The bankruptcy order consequently disclosed no real prospect of being set aside on service grounds.
4. Neuberger J had correctly approached the request for permission to issue proceedings containing grave allegations of dishonesty. The court had to balance the applicant’s opportunity to obtain legal redress and the public interest in exposing wrongdoing against the serious worry and largely irrecoverable expense that the proposed proceedings would impose on the defendants. The seriousness of the allegations also required the court to be satisfied that credible evidence, or reasonable grounds for anticipating credible evidence, existed.
5. The applicant had produced no independent evidence capable of supporting the allegations. His own assertions, the material concerning religious attendance, and references to eight lever-arch files did not establish a prospect of success. The judge had considered the relevant matters and exercised his discretion correctly. The Court of Appeal would not interfere with that decision.

The fresh evidence was admitted only to the limited extent necessary for considering the permission application. The formal order recorded that the applications were refused, and a copy of the judgment was to be provided to the applicant at public expense.

• Court of Appeal (Civil Division): On 29 November 2002, Lord Justice Aldous refused permission to appeal and dealt with the ancillary applications; Lord Justice Scott Baker agreed. [2002] EWCA Civ 1839
• High Court of Justice, Chancery Division: On 23 July 2002, Neuberger J dismissed the application to set aside the bankruptcy order and refused permission to issue the proposed proceedings.
• Central London County Court and earlier appellate proceedings: The county court gave judgment for Mrs Waldman on 8 December 1999 and awarded costs. On 25 July 2000, the Court of Appeal refused permission to appeal that judgment.