Judgment Approved by the court for handing down.
Solicitor General v Millinder
exhausted his rights of appeal and the order has been upheld. However, even if an
appeal is successful, the order under challenge remains valid and must be complied
with unless a stay has been granted, until such time as the appeal court sets it aside.
69.
Mr Millinder contends that this was wrong because of certain observations made by
Lord Denning in MacFoy v United Africa Ltd [1962] AC 152, an appeal to the Privy
Council from the West African Court of Appeal. The issue in that case was whether a
statement of claim, delivered in the long vacation (which in those days was not
permitted under the procedural rules) was a nullity. The appellant contended that it
was, and that all subsequent proceedings were void. His appeal was dismissed. Lord
Denning, delivering the judgment of their Lordships, said at page 160:
“The defendant here sought to say therefore that the delivery of the
statement of claim in the long vacation was a nullity and not a mere
irregularity. This is the same as saying that it was void and not
merely voidable. The distinction between the two has been repeatedly
drawn. If an act is void, then it is in law a nullity. It is not only bad,
but incurably bad. There is no need for an order of the court to set it
aside. It is automatically null and void without more ado, though it is
sometimes convenient to have the court declare it to be so. And every
proceeding which is founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay there. It will
collapse.”
70.
Lord Denning’s observations, which were obiter, and made in a case which is only of
persuasive authority, were directed specifically at the validity of acts by individuals,
such as the service of proceedings. He was not considering , let alone alluding to,
orders of the court, which are treated as valid for all purposes unless and until they are
set aside. Mr Millinder has exhausted his rights of challenge to the various court
orders of which he complains, including those made in the insolvency proceedings;
although he refuses to accept it, there must be finality in litigation.
71.
The Court made it clear at the hearing of the committal proceedings that it was not
prepared to allow Mr Millinder to rehearse the same arguments concerning the
underlying litigation that he had rehearsed at length in his written submissions, and
which had been aired extensively both at the section 42 hearing and on previous
occasions, including before the Chancellor and before Mr Justice Fancourt. When it
was put to him, Mr Millinder had no answer to the point that he had unsuccessfully
sought to persuade the Court of Appeal that it was arguable that the section 42 order
was void or that there had been a conspiracy to pervert the course of justice by the
members of the Divisional Court who made that order (or by any other judges).
72.
Even if the person who breaches the order genuinely believes that he is entitled to do
the acts complained of, that will afford him no defence: see Khawaja v Popat &
Another [2016] EWCA Civ 362 per Lord Justice McCombe at [32] and the authorities
there cited.
73.
It was made clear to Mr Millinder that the Court was willing to listen to anything that
he wished to say by way of excuse or mitigation which did not involve repetition of
the arguments that had been aired and dismissed on previous occasions. However,
when he was told that the Court was not prepared to listen to arguments which had no
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