Goodfellow v Markos

A judgment debtor cannot reopen an unappealed costs judgment within later enforcement proceedings. A party alleging that an order was made without notice should first use the set-aside remedy in the court below under the Civil Procedure Rules; the appellate court should not determine the issue until that remedy has been exhausted. There is no general entitlement to state-funded legal representation in civil proceedings, although the court may decline to proceed where justice cannot be done without representation. A debtor who refuses available means of paying a judgment debt cannot complain that the court enforces a charging order by possession and sale rather than devising another method of realisation.

The defendant sought renewed permission to appeal against a possession order made by HHJ Yelton on 21 June 2006, when sitting as a deputy High Court judge. The order permitted the claimant to issue a writ of possession to enforce a charging order securing costs awarded in earlier litigation. Permission to appeal against the original costs order had been refused in [2003] EWCA Civ 622. Enforcement proceedings had previously been transferred to the High Court following the Court of Appeal’s judgment in [2005] EWCA Civ 1407. The defendant challenged the possession order on grounds including lack of notice, inadequate legal assistance, human rights, proportionality and alleged defects in the costs order. The central issues were whether permission should be granted and whether the alleged lack of notice should first be addressed by the High Court.

1. Disposition. The renewed application for permission to appeal was refused. Grounds attacking the original costs order could not be pursued in these enforcement proceedings. Permission to appeal against that order had been refused almost four years earlier, so the costs judgment had to be treated as beyond challenge in the present context.
2. Legal assistance. The court, referring to Perotti v Collyer-Bristow (A Firm), held that there is no general principle requiring the State to provide legal assistance or representation in civil matters. If the court considers that it cannot do justice without representation, it may decline to hear the matter, invite counsel to act pro bono, or invite the Attorney General to appoint an advocate to the court. That safeguard was not engaged. Public funding had been available to pursue the application, and the substantial equity in the property gave the defendant an apparent means of obtaining legal assistance.
3. Enforcement and alternative means. The earlier suggestion that the debt might be realised from the property without possession and sale depended upon the defendant’s co-operation. She had provided none and continued to dispute the underlying costs judgment. In those circumstances she could not complain that the claimant was receiving the assistance to which he was entitled in enforcing the charging order, or that the court had not devised another method of realising the debt.
4. Lack of notice. If the possession order had been made without notice, the defendant’s remedy was an application to the High Court under CPR 39.3 subparagraph (3) to set it aside. The issue should not be brought to the Court of Appeal until the remedies provided by the Civil Procedure Rules had been exhausted, since the court below and its officers were best placed to determine whether notice had been given.
5. Further applications. The Court of Appeal directed that future applications by the defendant should receive careful consideration on the papers and could be refused without an oral hearing if devoid of merit. The High Court could make an appropriate civil restraint order if necessary, but no such order was made at this stage.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was refused on 28 February 2007: [2007] EWCA Civ 254.
2. Court of Appeal (Civil Division): Permission had initially been refused on the papers on 18 July 2006, with the defendant directed to seek relief in the High Court if the order had been made without notice.
3. High Court of Justice, Queen’s Bench Division: HHJ Yelton, sitting as a deputy High Court judge, made the possession order on 21 June 2006 and granted permission to issue a writ of possession.