Ayobiojo & Anor v Easyspace Ltd

Permission to appeal was refused where the lower judge’s findings were clearly expressed and the alternative legal basis for making a charging order disclosed no arguable error. A judgment creditor’s expectation of obtaining a charge over a husband’s beneficial interest in matrimonial property should be displaced only in exceptional circumstances. Under Article 6(1), legal aid is required only where self-representation prevents the court from doing justice. The equality of arms principle does not require different procedural measures where effective access to justice remains possible.

Mr Bashiru Adebola Ayobiojo sought permission to appeal against Pitchers J’s order of 26 March 2003. That order allowed Easyspace Limited’s appeal from Master Ungley and made a final charging order over the applicant’s alleged interest in property formerly held jointly with his wife.

The underlying claim against Easyspace had been struck out, followed by an indemnity costs order and a default costs certificate. Master Ungley had discharged an interim charging order after relying on a divorce petition said to record an intended transfer of the property to Mrs Ayobiojo. Pitchers J found that document was not genuine and held alternatively that, applying Austin-Fell, the charging order should be made.

The applicant challenged the findings, the refusal of production and representation orders, the conduct of the hearing, and several ancillary matters. The central issue was whether any proposed ground disclosed an arguable basis for appellate intervention.

Disposition. Pill LJ gave judgment, with which Jonathan Parker LJ agreed. Permission to appeal against Pitchers J’s order was refused, and all ancillary applications were refused.

1. Charging order. There was no arguable basis for reversing Pitchers J’s findings concerning the provenance of the divorce documents. The judge had conducted the investigation which the material before him required and had made clear findings. His alternative reasoning also disclosed no arguable error.
2. Creditor’s expectation. The alternative reasoning properly applied the guidance in Austin-Fell v Austin-Fell & Another (1990) FA 172. A wife’s interest in matrimonial property would defeat a judgment creditor’s expectation of a charging order only in exceptional circumstances. The court had to balance the creditor’s expectation against the wife’s and children’s rights of occupation. On the stated facts, substantial equity existed and enforcement was not intended while the wife and children remained in occupation. The balance therefore favoured the final charging order.
3. Legal aid and Article 6(1). The court applied Perotti v Collyer Bristow and Others [2003] EWCA Civ 1521. The relevant question was whether the litigant’s own presentation prevented the court from grasping the facts and legal principles sufficiently to reach a just decision. It was not enough that representation would make the court’s task easier or improve the presentation. The applicant had written submissions, had been offered the opportunity to address the court by video link, and showed no sufficient basis for a representation order. There was no breach of Article 6(1) or the equality of arms principle.
4. Ancillary applications. The court was entitled to proceed in the applicant’s absence after he declined the video-link opportunity. A belated request to revive an expired pro bono arrangement and an insufficiently particularised health complaint did not justify an adjournment. There were no grounds for recusal. The remaining applications, including requests for production, joinder, fresh evidence, a stay, orders against Registry officials, and committal for contempt, were inappropriate, unsupported, or outside the court’s jurisdiction.

• Court of Appeal (Civil Division): On 29 July 2004, permission to appeal was refused and all ancillary applications were refused: [2004] EWCA Civ 1247.
• High Court, Queen’s Bench Division: Pitchers J allowed Easyspace’s appeal from Master Ungley’s order on 26 March 2003 and made a final charging order.
• Master Ungley: Granted an interim charging order and subsequently discharged it on the application for a final order.
• Master Prebble: Struck out the underlying claim against Easyspace and ordered indemnity costs.