Barabutu & Anor v Timmis [2017] EWHC 1777 (Ch) (02 June 2017)

Neutral Citation Number: [2017] EWHC 1777 (Ch) Case No. HC-2016-003378 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION Royal Courts of Justice 2 June 2017 B e f o r e : CHIEF MASTER MARSH ____________________ (1) CHRISTIAN BARABUTU (2) LESLIE GAYLE-CHILDS Claimants - and - ELIZABETH TIMMIS (aka ELIZABETH CLAXTON) Defendant ____________________ THE CLAIMANTS did not attend and were not represented. MS G. CHAKRAVARTY (instructed by Russell & Co) appeared on behalf of the Defendant. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © THE CHIEF MASTER : This morning the court heard three applications in this claim, the nominal claimant in which is Mr Christian Barabutu and the defendant is Mrs Jacqueline Elisabeth Timmis. The two applications brought by the claimant are: (1) he seeks to set aside an order which itself set aside judgment in default; and, (2) he applies for an entity, if indeed it is such, called KB Trustees to be substituted for him as the claimant. The third application is an application brought by the defendant, Mrs Timmis, by which she seeks to strike out the claim under CPR 3.4(2)(a) and (b) on the basis that the claim shows no reasonable grounds, and, in the alternative, that it is an abuse of the court's process. There is a very involved background to this claim which I will attempt to summarise. The claim itself relates to events in April 2008 and concern a sum of £100,000 said to have been deposited by KB Trust Company in trust with an entirety named Heritage. Heritage was a business run by the defendant's husband, Mr John Mark Timmis. The claimant, Mr Barabutu, is said in the claim to be the assignee of the cause of action from KB Trust Company, a BVI company. The indications are, however, that the way in which the case is put in this claim do not sit comfortably with claims of a very similar nature which have been brought previously and struck out. Before going to those claims, I will first deal briefly with the procedural history of this claim, and then turn to the history. This claim was issued in the Chancery Division of the High Court on 25 th November 2016. Judgment in default was entered in favour of the claimant on 11 th January 2017 for a total sum of £171,358.90. The defendant applied to set aside that judgment on the basis that the claim had not been served on her. The application notice was considered by a Deputy Master and an order was made at a hearing on 9 th February 2017 setting aside the judgment. An order was also made that if the claimant was not served by a specified date it would be struck out. It was so served and thereafter the defendant made the application that is before me today to strike out the claim. The two further applications I have mentioned made on behalf of the claimant were issued at varying times. On 15 th March 2017, I made an order of the court's own volition that the three applications should be heard by me today. An order was also made that the claimant be produced for the hearing from HMP Swaleside, where he currently resides. The claimant, or, more precisely, Mr Barabutu, is a serving prisoner, having been convicted of a murder and sentenced to a minimum term of 18 years. He is a co-resident at HMP Swaleside with a person who has gone by a number of different names, but I will refer to, for the purposes of this judgment, as Mr Gayle-Childs. In unrelated proceedings brought in the name of Mr Barabutu - that is claim number HC-2016-003010 - an application came before me on 24 th January 2017. In those proceedings I gave judgment and, at para.16 of that judgment, I recorded my findings that Mr Barabutu was a nominal defendant and that the cause of action, again said to have been assigned, was, in fact, a claim brought by Mr Gayle-Childs. Mr Gayle-Childs is a serving prisoner in HMP Swaleside having been convicted of an attempt to defraud the state of Libya in relation to a very large sum of money. In yet further proceedings, in a claim called Sanderson v The State of Libya , am order has been made be me striking out the claim and, similarly, concluding that Mr Sanderson, also a serving prisoner at HMP Swaleside and a convicted murderer, was a nominal claimant in relation to a claim brought, in reality, by Mr Gayle-Childs. This claim bears the hallmarks of Mr Gayle-Childs' involvement. Mr Gayle-Childs has pursued what can properly be described as a 'campaign of litigation' against Mrs Timmis. There have been five claims previously brought by Mr Gayle-Childs against Mrs Timmis, all of which have been struck out. Three of the five cases were struck out on 15 th January 2008 by District Judge Silverman in the Central London County Court, and two further claims were struck out on 22 nd July 2008 by the same District Judge. The claims that were struck out concerned Mrs Timmis and a complaint relating to a £100,000 payment said to have been made into a Heritage account on 3 rd April 2008. That brief summary suffices to indicate in the clearest terms that the facts underlying this claim, and the facts in the previous claims brought against Mrs Timmis, show a remarkable degree of similarity. It might be that the claim that is before me today is expressed in different terms, but undoubtedly it relates to the same underlying facts. Certain matters relating to Mr Gayle-Childs are pertinent to the matter today. First of all, he was the subject of a bankruptcy order made against him on 2 nd August 2010. To the extent that he was the beneficiary of a cause of action against Mrs Timmis at that time, then that cause of action vested in his trustee in bankruptcy. It is also of relevance to record Mr Gayle-Childs had asserted before the District Judge that the cause of action against Mrs Timmis had been assigned to GC Financial London Limited. The pattern of claims being brought on the basis of an assigned cause of action, and now claims being brought by nominal claimants, becomes clear when the judgment of Newey J, dated 14 th January 2013 is considered against the more recent events I have briefly summarised. In that judgment, the judge set out in considerable detail the history of Mr Gayle-Childs' dealings with Mrs Timmis. He had before him two claims and the outcome of the hearing was that a general civil restraint order was made against Mr Gayle-Childs for the maximum two year period. That was not, however, the first occasion upon which a general civil restraint had been made against Mr Gayle-Childs. Previously, a civil restraint order had been made in the County Court by His Honour Judge Mitchell, again for a two year period, on 24 th August 2010. The order made in the County Court was of a more limited scope than the order made by Newey J. The latter order has had the effect of discouraging Mr Gayle-Childs from pursuing his campaign against Mrs Timmis to some degree, but it is now plain that he intends to revive that campaign by arranging for proceedings to be brought in the name of others. In her helpful skeleton argument, Ms Chakravarty, who appears for Mrs Timmis, has drawn my attention to the disturbing fact that Mr Gayle-Childs has brought a total of 54 claims, all of which have been dismissed, set aside or struck out. He has also been the beneficiary of fee remissions on numerous occasions, including claims brought in the names of other parties. Given that two civil restraint orders have already been against him, it may be thought that he is vulnerable to a further order being made. That is not a matter for today, and is a matter that is outside my jurisdiction. A factor which is of significance for the purposes of today is that the court order dated 15 th March 2017 requiring Mr Barabutu to be produced to the hearing today has not resulted in his presence. Mr Barabutu, I am told, was asked to attend today, and the Prison Service was in a position to produce him, but he declined to leave his cell. He has refused to attend this hearing in response to the order. To my mind, that lends some weight to the concern that he is not, in reality, the claimant in these proceedings. He is a mere nominal claimant. Mr Gayle-Childs is a convicted fraudster. He is also a person against whom the previous Chief Master, Chief Master Winegarten, made a finding that he had been deceived by appearing in front of him using the name Kenroy Brown. So he is a person who has a range of modus operandi , and is someone who clearly has the propensity to deceive. I am satisfied on the basis of the history set out in the judgment of Newey J, dated 14 th January 2013, and the facts I have summarised in this judgment, that the true claimant in these proceedings is Mr Gayle-Childs. I think it is helpful to record that in the High Court there have been a number of claims struck out involving Mr Gayle-Childs, and they are set out in a document in the bundle marked Appendix B. In addition, I have referred to the cases of Barabutu v Reynolds Porter Chamberlain, and Sanderson v The State of Libya. Two further documents in the bundle are of significance: (1) a document which records the variations of identity used by Mr Gayle-Childs, to which may be conveniently added Mr Christian Barabutu and Mr Anton Sanderson; and (2) the list of claims involving Mr Gayle-Childs which have been the subject of assignments. As the true claimant in these proceedings, Mr Gayle-Childs has brought a claim that is essentially the same claim that has already been struck out on five previous occasions. There is no need, I consider, to say more on that subject. It is plainly an abuse of this court's process to bring a fresh claim, albeit dressed up in a different fashion, against Mrs Timmis as part of Mr Gayle-Childs' vicious campaign against her. His conduct is also an abuse of the court's process in bringing this claim against Mrs Timmis in the name of a nominal claimant. I am satisfied in any event that the underlying course of action is subject to limitation. The six year period of limitation for a claim for breach of trust has expired and, although the claim pleads that s.32(2) of the Limitation Act 1980 applies, that is plainly not an assertion which bears close scrutiny since, as between Mrs Timmis and Mr Gayle-Childs, there has been no concealment. This is plain from the fact that Mr Gayle-Childs has been able to bring the same claim on a number of previous occasions. Nothing has been concealed from him. For all those reasons, I am satisfied it is appropriate to strike out this claim and to record that it is a claim that it is totally without merit. It follows from the conclusion I have reached that the claimant's application to set aside the order dated 9 th February 2017 must be dismissed. That is also an application that is totally without merit. Furthermore, the application made by the claimant dated 16 th May 2017 seeking to substitute KB Trustees Company as claimant must also be dismissed, and I will record that application is also totally without merit. Given that there has been a very long history of Mrs Timmis having to deal with these claims, it seems to me right that a transcript of this judgment should be produced at the public expense and I so direct. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII