Afzaal Hussain, Mona Qutb (By her Litigation Friend Azam Qutb) v Bank of Scotland Plc (2012)
Permission to appeal had been obtained by the deception of a person without standing to launch an appeal or to obtain permission to appeal and, on the permission being set aside for those reasons, there was no appeal to be decided and so it had to be dismissed.
The applicant bank (B) applied to set aside an order granting permission to appeal and dismissing the appeal.
The appeal notice had been issued by a person (P) purportedly acting as the litigation friend of his mother (Q). Q had sold her house to a fraudster (H) and he had charged it to B to secure a loan. B started possession proceedings and Q, acting by P, began proceedings against H. H was convicted of conspiracy to defraud and the transfer by Q to H was set aside. The property was transferred back to Q, subject to the charge. B pursued its possession action and Q claimed that she had an overriding interest in the property. P carried on the litigation having been appointed as Q's receiver by the Court of Protection. The judge made a possession order against Q and also declared that she did not have an overriding interest. He held that she was bound by B's charge on the basis of consent and estoppel, despite her lack of capacity; she had so conducted herself as to give B reasonable grounds for believing that she consented to the creation of the charge, which would have priority to her interest, and she was thereby estopped from asserting a prior interest. P obtained permission to appeal on the basis that since Q lacked capacity she could not be taken to have authorised the charge or to have acquiesced in any assumption made by B as to the priority of its charge. B then discovered that Q had died before the hearing of the possession action. B applied to strike out the appeal or set aside permission to appeal and P applied for an adjournment of the application and appeal.
P ceased to be Q's litigation friend on her death. No application had been made for the appointment of a person to represent her estate. Neither at trial nor when he obtained permission to appeal did P have any standing to conduct litigation on behalf of Q's estate. He had no legal standing to conduct the appeal on the basis of that permission, even though he had since obtained a grant of letters of administration to Q's estate. An administrator's title was derived solely from the grant of letters of administration, which did not retrospectively validate antecedent suits. P should have informed the court, the Court of Protection and the parties of Q's death, instead of carrying on with the litigation while positively asserting that his mother was alive. He actively and intentionally misled the court and B. The order granting permission to appeal was set aside on the basis that there was a compelling reason to do so under CPR r.52.9(2). Permission would not have been granted to P if the court had known that Q had died and that he had no legal standing to act for her or for her estate. The appeal notice was struck out for the same reason underr.52.9(1)(a). There was no point in granting an adjournment. In the absence of permission to appeal, the appeal could not be pursued and was dismissed (see paras 37-43, 45 of judgment).
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08 Mar 2012
Court of Appeal
Mummery LJ, Toulson LJ, Kitchin LJ
LTL 8/3/2012 :  EWCA Civ 264
Thomas Grant QC