KB-2023-000128 - [2025] EWHC 2085 (KB)

The third stage is to evaluate the circumstances of the case to enable the court to deal justly with the application, including under Rule 3.5(1)(a) and (b). Therefore, I now examine all the circumstances to deal with the case justly. I must consider the interests of both parties and also the interests of the public.

I have to consider, and indeed have considered, factors listed in the overriding objective at Civil Procedure Rules 1.1(2). This is objectively not a complex matter. It has been made procedurally tortuous by the applicant's refusal to comply with court orders. What he was required to do could not have been spelled out for him with greater clarity. The case has used up a great deal of court resources unnecessarily. As Ritchie J poignantly and succinctly put it at paragraph 20, “This cannot continue.” Ritchie J stated in the next paragraph, “I have made a further extension of time for the service of a bundle with or without a transcript. If that is not complied with, the appeal will stand struck out.”

As is made clear by the King's Bench Guide 2025, there is a particular need for litigation to be conducted efficiently and at proportionate cost, and there must be enforcement of compliance with the rules, Practice Directions and court orders. In my judgment, it would be disproportionate to restore the struck-out appeal or to vary the order of Ritchie J. That would run contrary to the objectives of dealing with the case expeditiously and saving expense. It would inevitably incur unnecessary and disproportionate further cost and use up a greater and therefore inappropriate share of the court's resources. It would unnecessarily prolong these chequered and unsatisfactory proceedings. Compliance with the orders of this court must be enforced in these circumstances. Therefore, to deal with the case justly, as is my duty, and at proportionate cost, as is my duty equally, the appeal remains struck out.

I have carefully considered the King's Bench Guide 2025 at paragraph 16.3. It provides that an application can be marked as totally without merit if:

“… it is dismissed and is totally without merit (CPR 23.1(2) or where an appeal court refuses an application for permission to appeal strikes out an appellant's notice or dismisses an appeal (CPR 52.20(6)).”

The King's Bench Guide continues at paragraph 16.4:

“A claim is totally without merit if it is bound to fail. See R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 and R (Hossain) v Secretary of State for the Home Department [2016] EWCA Civ 82.”

I judge that this application was bound to fail. I find that it is totally without merit. Therefore, it should be marked as the same. The order I am going to invite Mr Skjøtt to draft in due course must record that fact. There is already a limited civil restraint order against the applicant.

As to costs, the respondents make an application for costs on the indemnity basis. I have indicated to Mr Skjøtt that in due course the court will receive costs submissions. I judge it important that Mr Zelman has an opportunity to respond in writing to the application for an order for costs on the indemnity basis and also for any response he wishes to make about quantum. The respondents will have an opportunity to reply after that. The court will decide the matter on the papers. I judge it disproportionate to convene a further court hearing in order to deal with this confined consequential matter.