Website updated to 31 March 2011 (including full transcripts of interviews with Group Fraud & Security here and here and letter of dismissal). This page updated to 17 October 2010.
Part 1 - Uncovering a scandal (Equitable Life, Lloyds TSB, Scottish Widows and the Financial Services Authority) Part 2 - The turn of the screw (Reporting to management, suspension, investigation, dismissal) Part 3 - A banner with a strange device (Follow-up actions) Part 4 (this page) - Legal action against Lloyds Banking Group plc, the Parliamentary Ombudsman and the ICAEW 36. Legal action against Lloyds TSB Bank plc (now Lloyds Banking Group plc) 37. Legal action against the Parliamentary Ombudsman 38. Legal action against the Institute of Chartered Accountants in England and Wales
The sections below have two parts, a 'Section summary' and a 'Section detail'. You can read through the summaries only to get an overview of the follow-up action I have taken, and refer to the detail sections where you would like further information. Where the detail section is very short the section summary simply says 'See section detail'.
'99% of lawyers give the rest a bad name.'
'Lawyers are people who stand up in public and lie for cash. Judges are ex-lawyers.'
'Being a solitary litigant-in-person and challenging the system from outside, he was put through the wringer. Although he was complimented by judges for his masterly summations, he had to fight off attempts to disqualify him as a bankrupt and then as a vexatious litigant, and when these failed, to confront walls of obscurantism.' - Obituary in The Times of Simon Fletcher (1910-2002), father of Susannah York (1939-2011). See this article in The Independent (27 Dec 1992) also.
Legal notice
See Napier and another v Pressdram Ltd; [2008] EWCA Civ 443; [2009] WLR (D) 172 and the words of Lord Justice Sullivan during the hearing, as reported in Private Eye (No. 1237, 29 May-11 June 2009, p. 6): ‘A citizen should have the right to shout from the rooftops if he wanted, that a complaint about a solicitor had been rejected because the Law Society were a complete shower…’ and also Lord Justice Toulson at 42: ‘Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle).’
36. Legal action against Lloyds TSB plc (now Lloyds Banking Group plc) (Top of page)
Section summary: Next summary For the background to my legal action against Lloyds TSB Bank plc see the preceding sections linked via the index above or you can read my particulars of claim (there is a summary at the front).
The detail section gives the history of the case so far. You can get a good idea of what is 'going on' just from reading the following list of things done by the people involved; that is, the judges, court staff, the defence's solicitor and barrister and the Office for Judicial Complaints. For the record, I believe that my experience as a litigant in person in this case is actually fairly typical. You will appreciate from reading this page that the real problem in this case has not been the defence solicitor and barrister or the court staff (though, heaven knows, their conduct has been appalling) but the judges, who mercilessly bully litigants in person. Not even having had a heart attack and resultant heart condition and being under medical advice to avoid stress and not attend court hearings has been enough to protect me from these people. Seriously, their conduct is almost beyond belief. Here goes.
One thing might begin to dawn on you if you read this paper and that is that there are two legal systems in this country. The first is the one we are all familiar with, or think we are familiar with, where two sides contest an issue in court through their lawyers. In this system everyone observes the rules carefully, argues the points in minute detail, carefully citing case and statute law, and judges ponder weightily over the meaning of words and then deliver a thorough and reasoned judgment, which might be reported respectfully in the press. It is criminally slow, complex and expensive but, generally, one gets the impression that they are at least making some sort of effort to do justice at the end of the day (they frequently get it wrong but that's another story). In this system the whole weight of the machinery of the law will be devoted to trying to find out whether an E-Mail was sent at 3.59 p.m. or 4.01 p.m. or whether a fax is 'sent' when it leaves the sending machine or is received by the receiving machine one thousandth of a second later. Cases of this type regularly get to the Supreme Court.
The second system is the one that people don't realize exists, even if they have experience of it. This is because they assume that their case was a 'one-off' where they were treated unfairly by a rogue judge or something like that. This second system is the one that litigants in person are subject to. The judges are the same, the courtrooms are the same; they use the the same forms, the same procedures and so on and so on. The difference is this; namely that the litigant in person will be bullied mercilessly (but politely - unless you object to something, in which case they will start to show their teeth) by the court staff and the judges, who will ignore, override and mis-state (sometimes deliberately) their own court rules and allow blatant and repeated breaches of those rules by the lawyers representing the other side, who themselves will break almost every conceivable rule of professional conduct, frequently not bothering to reply to correspondence at all, indulging in deceit, evasions, lies, character assassination and mud-slinging. Your detailed, reasoned and thorough arguments, no matter how well-founded, will be lazily dismissed by the judge with airy generalizations and without proper reasons (note to judges - an assertion, such as 'the judge was right', is not a reason), in the knowledge that you will get the same treatment from another judge if you appeal and that any complaint you make about any judge will dismissed with evasions and, if you persist, outright lies. All of this is fact - without exaggeration - born out by experience in a number of court cases*, including this one. The judiciary even have the cheek to dismiss litigants in person with the outrageous generalisation that they are 'obsessive'.***Well, the only comment I can make about that is that people have every right to get 'obsessed' (read - 'upset') when they ask for justice and are kicked in the teeth by the very system that is supposed to serve them, protect their interests and ensure that they are treated fairly**. Read the facts here and make your own mind up.
*including two cases detailed in my reply to the defence (see pages 14-19) involving blatant miscarriages of justice by High Court judges, Crown Court judges, judges in the Court of Appeal, magistrates, court staff, the Office for Judicial Complaints and the Judicial Ombudsman (oh, and perjury by the police); pretty much a clean sweep (well, not clean exactly but you know what I mean).
**'Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of civil justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.' (Lord Woolf, Lord Chief Justice (1995), 'Access to justice', Chapter 17, para. 2.) Right in the first bit, m'lud; wrong in the second bit. The true problem is not the system so much as the people who run it; the judges and court staff (see following note). This illustrates that a judge can go through an entire career in the law and still not understand the true nature of the problem. The legal system in this country is really no different from any other 'system'. Take communism; nothing much wrong with it in theory (common ownership of the means of production sounds like quite a good idea), it's the people who run it who are the problem. You know, Stalin (mass murderer), Mao Tse Tung (mass murderer), Pol Pot (mass murderer) and so on and so on. 'Systems' (political, judicial, whatever) are rarely at fault; it is the people who run them who muck the whole thing up. Even feudalism, hated by many, was a good idea in theory (mutual obligations of loyalty and service on one side and protection on the other). Seems good to me.
***Academic research has, in fact, established that only a 'very small minority' of litigants in person are obsessive (see Moorhead, Professor R., and Sefton, M., 'Litigants in person', Dept. for Constitutional Affairs, 2005, p. i) - which means that the Lord Chief Justice is guilty of gross exaggeration. A good start to his tenure of office. This same research indicates that litigants in person are treated by judges and court staff as 'mad, dangerous and stupid' although the authors shied away from investigating this matter properly (they were employed by the government - Dept. for Constitutional Affairs - to produce the report and clearly did not want to bite the hand that fed them). See p. 89 which says 'A third possibility is a more uncomfortable one for those administering the justice system. As we noted at the outset, many of those we engaged with about unrepresented litigants shaped their immediate reactions around notions that unrepresented litigants were ‘bad or mad’. The judges we spoke to were a notable exception and many staff were sympathetic and constructive in their attitude to unrepresented litigants [or said they were when talking to the authors of the report!]. Many however also displayed a less flattering undercurrent. It could simply be that the ‘mad, dangerous and stupid’ litigants were what occupied their thoughts because they posed the greatest challenge to their resources and skills, or that they provided better stories, but a notable effect of this tendency was the stereotypical portrayal of unrepresented litigants which in fact is not borne out by a more considered analysis of how often unrepresented litigants become obsessive.' Non-academic shorthand? They treat you like scum. This clear warning sign was not properly followed up and the report's authors ducked the issue by saying in the Executive Summary (p. ii) 'Some courts and local advice providers may be more welcoming to, or encouraging of, unrepresented litigants than others.' I'll say! They should have said 'There is clear evidence that many court staff consider litigants in person to be 'mad, dangerous and stupid', without justification - AND OBSTRUCT THEIR CASES ACCORDINGLY'. It is clearly a serious problem, is it not, where the system of justice actually obstructs those seeking justice?
Judges
- twice issued an unlawful order ordering me to attend a medical examination (a court has no power to do this; this is basic law);
- issued an unlawful order ordering me to disclose all of my medical records going back to birth when disclosure should have been limited to those medical records that are relevant and necessary (as established by a case in the European Court of Human Rights, which is binding on UK courts, amongst others);
- identified a preliminary issue concerning whether I had signed a compromise agreement under duress but refused to accept that it was necessary to firstly establish whether that compromise agreement was itself valid (i.e. if the agreement was not valid then the issue of whether I signed it under duress is irrelevant, which would make disclosure of my medical records and intrusive medical examinations unnecessary);
There is an interesting question here in relation to the issue of duress. What is critical is my state of mind at the moment I signed the compromise agreement, bearing in mind that duress is defined as 'An intentional submission arising from the realization that there was no other practical choice open to him' (Lord Scarman – Universe Tankships of Monrovia v International Transport Workers Federation (The Universe Sentinel) [1983] 1 AC 366). The question is whether the defence's medical expert can tell what my state of mind was at a moment in time by examining me some 7 years later. Is that possible? Could anyone do it? Will he be able to say, on the balance of probabilities, that I cannot, at a given moment over 7 years ago, have been in a certain frame of mind. Bear in mind that what matters is not my actual state of health but my perceived state of health at that time. I could have been as fit as a fiddle but that is absolutely irrelevant if, in fact, I believed that I wasn't (and regardless of whether I had reasonable grounds for doing so - if I believed it then I believed it)? So can their expert tell what I actually believed at a moment in time over 6 years ago? Did this train of thought occur to the judge?
- in relation to the duress issue, while ordering me to disclose all my medical records going back to birth (55 years) only requiring/allowing disclosure of other, non-medical, information 'relevant to the issue of duress', thereby excluding (or trying to exclude) evidence relating to my employment with the bank going back to 1998 (12 years) (This had the effect of excluding overwhelming evidence of persistent harassment and bullying leading up to the termination of my employment and the signing of the compromise agreement i.e. the court ruled, or tried to rule, without seeing the evidence, that my state of mind when signing the compromise agreement cannot possibly have been influenced by years of harassment and bullying leading up to the signing of the compromise agreement. I leave it to you to decide whether this was advantageous to the defence.)
- ruled in open court that the effect of an appeal against an order was to stay that order; the Civil Procedure Rules say the exact opposite (this had the effect of saving the defence from the consequences of having failed to comply with an order);
- ruled in open court that I could not make an application for a court order without notice (to the party against whom the order was being sought); the Civil Procedure Rules say the exact opposite (this had the effect of preventing me from obtaining evidence to establish that the defence's solicitor had lied in a witness statement, although I did establish that he had lied in other instances in the same statement);
- stated in a court order that I had failed to 'attend' a court hearing held by telephone conference when I had 'attended' (i.e. been connected) and had actually spoken to the judge, as proved by the transcript of the hearing (I was then disconnected as a result of a technical problem);
- ordered me to attend a hearing in court and made me produce medical evidence to prove that I was not fit to attend court for medical reasons when the Civil Procedure Rules actually required the hearing to be held by telephone in the first place (this in relation to a man with a heart condition);
- concealed from me the fact that service of documents can only be effected by means of E-Mail with the agreement of the receiving party (this led to a huge waste of time arguing over whether a particular E-Mail had been sent or not and allowed to judge to conclude that the defence had complied with a court order by sending an E-Mail);
- ruled that the E-Mail (see previous paragraph) had been sent when I had produced cogent evidence to prove that it hadn't and when the defence barrister himself was not prepared to do more than 'suggest' that the E-Mail had been sent (though, of course, the whole issue of whether or not the E-Mail had been sent was a red herring - see previous paragraph). Note also that, in any event, there is High Court authority (see below), binding on the judge, to the effect that the sending of an E-Mail does not automatically amount to good service even where allowed;
- made repeated unjustified and unnecessary derogatory comments in open court about my chances of success in the case (which were clear indications of judicial bias);
- refused to respond to two resulting (see previous paragraph) recusal requests (requesting the judge to stand down) made by letter in spite two Court of Appeal cases which firmly establish that a recusal request should be made by letter and that a judge must respond to a recusal request;
- threatened to strike out my statement of case (i.e. my entire claim) if I failed to comply with an order when the only party who had failed to comply with orders (repeatedly at that) was the defence;
- granted the defence extensions of time to comply with court orders in the face of repeated, blatant, conscious and unjustifiable breaches of those court orders by the defence and in spite of clear directions from higher courts (which I cited) that such breaches should not be tolerated (compare this to their treatment of me as outlined in the previous paragraph);
- ignored clear, obvious and proven lies by the defence's solicitor in a witness statement (which amounted to contempt of court and perjury);
- refused to grant an application for default judgment after the defence had failed to file a defence within the time limit (the key point here is that the defence applied for an extension of time but the court did not grant it - an order was drafted but never issued - which meant that the court could not accept the late filing of the defence because, clearly, if the court could have accepted the late filing of a defence without granting an extension of time then the court would never have attempted to draft an order granting an extension of time in the first place and the fact that no order granting an extension of time was issued meant that I had no opportuntity to challenge that order, as I would have done and had a right to do);
- dismissed my subsequent appeal against that decision as 'totally without merit' in spite of clear authority justifying the appeal (no judge reading this will bat an eyelid; it is a common tactic they use to get rid of litigants in person).
The question to ask yourself here is whether you think the judges have acted with undue favouritism towards the defence (OK, OK! 'Bias') by allowing the defence to get away with repeated breaches of time limits, failures to comply with court orders and other misdemeanours, including perjury, while trying to force me to attend hearings against the advice of my doctor (and contrary to court rules), threatening to strike out my statement of case (i.e. stop my claim), making unlawful orders against me and so on and so on, as listed above. A difficult question. Think on it.
Court staff
I can prove all the following from original documents and recorded telephone conversations.
- lost or destroyed critical documents (including my particulars of claim, the most important document of all, which they did not inform me of for several months);
- gave wrong or misleading information, sometimes deliberately (i.e. they lied), as illustrated below (particularly in relation to the procedure for challenging court orders i.e. they made it as difficult as possible);
- deliberately deleted important documents submitted by E-Mail to the court (a member of court staff inadvertently admitted to this - in a recorded telephone call);
- put the phone down on me (also recorded);
- obstruction (including ordering me not to submit a critical document - and I mean win or lose critical - when I had a clear and unambiguous right to do so; they said that the defence could make an application at any time but I, apparently, could not - also recorded (NB Right click on link and select 'Save target as' to download the file));
- when I submitted the document referred to in the preceding paragraph, they threatened to send it back, and then said that I could make a submission to the judge by E-Mail, which they then did not pass on to the judge - also recorded (NB Right click on link and select 'Save target as' to download the file);
- repeated delays, including delays in processing documents (I have been on the phone for an hour or more just trying to sort out the most simple of queries - also recorded);
- refused to process applications for court orders on the basis that I had not submitted the required information when I had and the information was in their hands (they later sent the information back to me with no apology);
- refused to comply with a lawful and reasonable Data Protection Act request;
- made a thinly veiled threat to investigate my financial circumstances after I had made a complaint (as explained below).
The defence barrister and solicitor
- filed their defence outside the time limit (this automatically entitles the claimant, on application, to default judgment);
- applied for an extension of time for filing their defence but did not send me an application notice;
- concealed from me the fact that I was automatically entitled (on application) to default judgment as a result of their failure to file a defence on time (even though they have a duty to reveal unfavourable laws, rules and cases to the court);
- indulged in blatant attempts at character assassination and mud-slinging in their defence document;
- refused to answer, in their defence document, my particular points of claim, as they are required to do by the court rules;
- failed to point out to the judge that his order that I attend a medical examination was unlawful (as they have a duty to do);
- failed repeatedly to comply with court orders relating to disclosure;
- claimed that their failure to comply with court orders relating to disclosure was due to the complexity of the exercise (their disclosure list eventually covered 2 sides of A4 - less than 100 items), paternity leave ('It was a complete surprise to me, your honour. I didn't notice that my wife was pregnant.') and annual leave (Try telling the court that you have failed to comply with a court order because you were on holiday and see how far you get). All this in the context that they had had a year and a half to prepare their disclosure list;
- when they finally did make standard disclosure, signing the disclosure statement on behalf of the defendants when the rules quite clearly state that it is the defendants themselves who should sign the disclosure statement (you will appreciate that this meant that the defendants had not, in fact, made disclosure at all);
- attempting to get away with disclosure which did not result from a reasonable search of all the relevant repositories of documents (I would say that they had failed to search 95% of what they should have searched - it is difficult to say more because the information on their disclosure form is so vague and misleading), a blatant breach of court rules;
- failed to list those documents which they were not disclosing and for which they were claiming legal professional privilege, another blatant breach of court rules;
- failed, repeatedly and consciously, to bring to the court's attention statutory provisions, cases and court rules that were prejudicial to their case (as they are required to do*), such as those relating to service of documents by E-Mail;
- threatened me in open court with bankruptcy proceedings in an attempt to scare me off. The judge did nothing;
- lied deliberately (several times) in a witness statement (this is contempt of court and perjury - and I proved it to the court as well). The judge did nothing;
- refused to respond to a request to provide me with the addresses of the defendants so that I could ask them whether they were prepared to prepare witness statements (if the witnesses refuse you issue Witness Summonses). I will now have to get a court order (they should have included this information in their defence document but didn't do so);
- refused to reply to a legitimate request for further information (disclosure of documents);
- refused to reply to a letter from me in which I asked them whether, as I understood it, an appeal against a court order had the effect of suspending that court order. In fact it doesn't but if they had acknowledged this it would have meant effectively admitting to failure to comply with a court order;
- attempted to deceive me into sending my medical records to them (for a little fishing expedition perhaps - see above re their attempts at character assassination), when case authority clearly states that medical records should be disclosed to their medical experts and not to them;
- told me, following a cancelled medical appointment, that a further appointment, either with that medical expert or another expert, could not be arranged for another 6 months (I immediately phoned up the medical expert concerned to confirm this and his secretary referred me to another expert who confirmed that he was available in the next few weeks).
*The Bar Code of Conduct 708(c) states that ‘A barrister when conducting proceedings in Court must [my emphasis] ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues.’
**Solicitors have a particular duty to act in good faith towards litigants in person. The 'Solicitors' Code of Conduct' (rule 10) states: 'Particular care should be taken when you are dealing with a person who does not have legal representation. You need to find a balance between fulfilling your obligations to your client and not taking unfair advantage of another person. To an extent, therefore, 10.01 limits your duty to act in the best interests of your client. For example, your duty may be limited where an unrepresented opponent provides badly drawn documentation.' In this context see Thames Trains Ltd v Adams [2006] All ER (D) 96 (Dec) where it was stated: ‘The difference [between a solicitor and litigant in person opponent] lies in what a solicitor can properly expect an experienced solicitor opponent to be aware of compared with that which a litigant in person might know. Whether or not a solicitor has taken unfair advantage of an opponent must be judged upon the facts, and relevant to that determination will be the experience and knowledge of his opponent.’ See also The Law Society v Sephton & Co (A Firm) & Ors (2006) and to Hertsmere Primary Care Trust v Estate of Balasubramanium (2005), which makes it clear that solicitors may owe a duty not only to point out their opponents' mistakes but also to explain exactly how they have gone wrong.
The Office for Judicial Complaints
- Refused to pursue a complaint against a judge who had refused to respond to a recusal request (request that he stand down) on the grounds that a judge is not obliged to enter into correspondence, ignoring the fact that two Court of Appeal cases (which I cited) state that recusal requests should be made by letter and ignoring the fact that there is no other way of making such a request (it is not an application since you are not asking for a court order and it is not an appeal since there is no court decision as such to appeal against, merely the conduct of the judge).
Me
I think it worth outlining the things that the defence claim that I have done wrong, and for me to answer those claims briefly.
Allegation Response That I have persistently refused to sign a mandate for the release of my medical records (David Platt, the defence barrister, made this allegation in open court). Not true. I quoted David Armstrong’s E-Mail to me of 5 January 2010 in which he said ‘We have received the mandates for release of your medical records and sent them to our appointed expert to make the necessary arrangements.’ I did not sign a second mandate (but they already had the first of course) because the defence did not send me a mandate to sign, as ordered by the court (see below). That I have persistently refused to attend appointments with medical experts (David Platt, the defence barrister, made this allegation in open court). There have been two appointments. The first I did not attend because the court order ordering me to attend had been stayed (suspended) by the court itself. I did not attend the second because the defendants failed to send a mandate for the release of my medical records for me to sign as ordered by the court (they claimed to have sent me a mandate by E-Mail, which I did not receive, but even if they did this was not proper service of the document, which should have been sent by post (believe me, courts take such issues very seriously* and people regularly lose cases because of them). The failure to send me a mandate meant that their medical expert did not have access to my medical records before my appointment with him, something that is not only plainly unsafe but is contrary to the court order, which had ordered that my medical records should be made available to the medical expert before he examined me. *unless you are a litigant in person, in which case the other side are allowed to get away with blue murder.
That I have disclosed huge volumes of documents not relevant to the preliminary issue of duress (David Platt, the defence barrister, made this allegation in open court). I have disclosed about 10,000 pages I guess (all in indexed form on CD - no paper - so it couldn't be more convenient for them) in the context that, according to a recent survey, and as I pointed out to the court, an average corporate fraud case now involves disclosure of over 500,000 documents (10,000 is 2% of 500,000). In addtion, when I asked about this point during the hearing of 26 August 2010, the judge (DJ Morgan) said that a document is relevant if a party considers it to be relevant ('what is relevant in the minds of the parties')* - so that is the end of the matter. *I think I caught the judge out there. Up to that point the court had been trying to restrict disclosure as much as possible (which would have given a huge advantage to the defence because it would have excluded powerful evidence of harassment and bullying going back years, including a formal internal report admitting harassment). As I pointed out to the court a person's conduct towards another person at a point in time can be influenced by the relationship between those parties going back many years (e.g. a battered wife or an abused child). You would have thought that this was self-evident.
Note that PD31 2A.2 states: 'The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.' Did the defence, as professional lawyers who know the rules, do any of this? No, they merely wailed at the judge as described. Did the judge ask them whether they had complied with PD31 when they wailed at him? Nope.
Section detail:
The conduct of court staff One of the things that has been most distressing (in fact, shocking) about this case is the conduct of court staff. I have found that they often (I would say usually) do not know the rules of their own court (Civil Procedure Rules etc.), other than the most basic standard procedures, though lack of knowledge doesn't stop them from telling you (incorrectly) what the rules are. To put it bluntly, most of the court staff are unqualified and poorly-trained. They are generally unhelpful and tend to respond to queries with a parrot-like 'We can't give legal advice', even where you are asking for information (not advice) on procedure, which they should know about. With litigants in person they tend to be not just unhelpful but positively obstructive (I think this attitude filters down from the top i.e. the judges) or rather, not to put too fine a point on it, as awkward as possible. I have even been subject to a thinly veiled threat to investigate my financial circumstances after I had complained about the conduct of court staff*. If you complain or point out that they are wrong they quickly brand you as a trouble-maker and become even more obstructive.
*Quote from a letter dated 6 January 2010 from Sharon Henderson, Court Manager, Newcastle-upon-Tyne County Court:
'In dealing with your complaint I have also considered your application for fees exemption [Why? This is the responsibility of a specific department.] and note that you state that you are working on a part-time basis. Whilst I appreciate that the figure you quoted falls below the gross annual income that allows full fee remission, I refer you to page 8 of the enclosed booklet which specifies that supporting evidence must be filed [which it was, in the form of original bank statements for all my accounts as required by the guidance notes]. I apologise that this has not been previously requested but as I am required to request full information for audit purposes can you please clarify whether this is self-employment or working for a third party so that I can consider whether further evidence is required.'
The fact of the matter is that as long as you prove (as I did by submitting original bank statements for all my accounts) that your income is below the relevant level then you qualify for fee remission (i.e. you don't have to pay the court fees). Whether you get that income from selling ice cream or flying to the moon, or via part-time or full-time work, is absolutely irrelevant. So, this shows the Court Manager, following a complaint by me, asking for information (under the false pretence that it was required for 'audit purposes') which, if needed, was the responsibility of another department (the Fees Section) to obtain. This is clear harassment and probably constitutes misconduct in public office, a criminal offence.
Index:
References to CPR are to the Civil Procedure Rules and references to PD are to Practice Directions.
1. Service of the claim form and particulars of claim
- On 22 December 2008 I served on Lloyds TSB and named directors and members of staff a claim against them for breach of contract, negligence, harassment and causing mental shock.
- On 8 April 2009 I served the particulars of claim.
- On 22 April 2009 I served the schedule of loss (these should have been served with the particulars of claim but the guidance notes are misleading).
2. Failure of the defence to file a defence and application for default judgment
- On 5 May 2009 David Armstrong of Berrymans Lace Mawer wrote to me by E-Mail to inform me that he had applied to the court for an extension of time for filing the defence but he did not serve an application notice on me in accordance with CPR 23.3(1). It is worth noting that the subsequent order by District Judge (DJ) Jackson of 20 May 2009 (see below) made no reference to this application.
- The defendants filed their defence after the time limit of 6 May 2009 (28 days from service of the particulars of claim on 8 April 2009).
- On 8 May 2009 I submitted an application for default judgment on the basis that the defendants had failed to file a defence within the time limit. Note that in a recorded telephone call on 8 May 2009 a member of court staff told me not to submit an application for default judgment until after the defendants’ application for an extension of time had been dealt with. This person had no authority for making this statement because I was entitled to submit an application for default judgment as soon as the deadline for filing the defence had passed. When I did send in an application for default judgment the same member of court staff threatened, in a recorded telephone call on 11 May 2009, to return that application.
- On 20 May 2009 DJ Jackson issued a court order refusing my application for default judgment 'as a defence has been filed' and ordering the parties to file allocation questionnaires.
- What actually appears to have happened was that my application for default judgment was stamped as received by the court on 12 May 2010 and that DJ Jackson considered the defence's application for an extension of time on 13 May 2010. This means that the court received my application for default judgment before it considered the defence's application for an extension of time, but court staff did not put my application before the court even though they knew that the court was due to consider another application relating to the same matter (i.e. the late filing of the defence). In other words the court (judge) was denied an opportunity to consider the relative merits of the two applications because the court staff did exactly what they had told me over the phone that they would do, which was to withhold my application until the court had considered the defence's application. The key point here is that if a court has two competing applications relating to the same matter then it should clearly consider the relative merits of those applications. For court staff to deliberately impede this process is plain obstruction of the course of justice.
- By way of background it should be noted that the Civil Procedure rules provide (CPR 12.3(1)) that a claimant may obtain default judgment where an acknowledgement of service has been filed (as one had) and the relevant time limit for filing a defence has expired (as it had). It is clear that the word 'may' in CPR 12.3(1) and (2) means that if you do apply then the application will be granted but that an application does not have to be made. This is proved by Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm), a High Court decision which is binding on the County Court, where Mr. Justice Coleman said (para 1) 'Was the service said to have been effected on the defendant in Turkey on 7 September 2001 or earlier a valid service for the purposes of CPR 12 .3(1) so as to entitle [my emphasis] the claimant to obtain judgment in default of acknowledgement of service under CPR 12?'
- Note also that CPR 12.11(1) (‘Supplementary provisions where applications for default judgment are made’ at http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part12.htm) refers to a claimant being entitled to default judgment in accordance with his statement of case ('Where the claimant makes an application for a default judgment, judgment shall be [my emphasis] such judgment as it appears to the court that the claimant is entitled to on his statement of case.').
- Note also that the HMRC’s (the taxman's) Debt Management and Banking Manual (DMBM665640 – CCP: The defendant’s response to the claim: Defendant does not respond to the claim - judgment in default) states that ‘you are entitled [my emphasis] to judgment in default under Part 12 of the CPR.’
- Note also Berezovsky v Russian Television and Radio Broadcasting Co & Anor [2009] EWHC 1733 (QB) where Hon. Mr. Justice Eady stated, at paras 1 to 3, that 'On 2 July 2009, I heard the Second Defendant's application to set aside judgment, entered in default of acknowledgment of service on 4 December 2008. As the hearing concluded at 4.50 p.m., it became necessary to hand down my ruling on a later occasion. The judgment was entered in default pursuant to CPR 12 .3(1). The claim form and particulars of claim were deemed served on Mr Terluk, who resides in this country, on 4 June 2008 following service upon Ms Yvonne Stevens on 28 May. She is a solicitor at a Law Centre who was giving him some help at the time. I had directed on 20 May, in the light of the evidence before me, that this represented an appropriate mode of service. There were thus 14 days from 4 June within which Mr Terluk should have filed an acknowledgment of service or a defence. He did neither.' This makes it clear that default judgment was entered under CPR 12.3(1) because the defendant failed to file an acknowledgement of service within the time limit. The failure to file within the time limit was sufficient on its own to trigger default judgment and no other considerations were relevant (other considerations, such as whether someone acted promptly, may be relevant when applying to have default judgment set aside - but that is a separate issue). See also Intense Investments Ltd v Development Ventures Ltd [2005] EWHC 1726 (TCC) (19 July 2005).
- It later transpired that although DJ Jackson had drafted an order granting an extension of time that order was never actually issued, which means, quite simply, that no extension of time was granted.
- There are two questions here. The first is whether the court actually had any authority to grant an extension of time (bearing in mind the claimant's right to default judgment, as explained above) and the second is what the consequences are of the failure to issue the order granting an extension of time.
- With regard to the question of whether the court had any authority to grant an extension of time CPR 3.1(2) allows the court to grant an extension of time ‘except where these Rules provide otherwise’.
- So the question is whether the rules do provide otherwise in this situation. Well, CPR 12.11(1) (‘Supplementary provisions where applications for default judgment are made’ at http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part12.htm) states 'Where the claimant makes an application for a default judgment, judgment shall be [my emphasis] such judgment as it appears to the court that the claimant is entitled to on his statement of case.'
- So the rules do provide otherwise where the claimant has made an application for default judgment.
- I think that the key issue here is that at the time the court granted (or tried to grant) an extension of time I had already made an application for default judgment, and since I had made an application for default judgment the court was bound to grant me default judgment under CPR 12.11(1). But the judge did not know that I had made an application for default judgment and plainly considered himself free to grant an extension of time accordingly. The reason he did not know that I had made an application was because the court staff had withheld that application from him (deliberately so) with the clear intention that I should be denied default judgment (in other words their intention in withholding my application from the judge, knowing that he was considering an application from the defence for an extension of time, can only have been because they knew that, under CPR, the judge would have been required to grant me default judgment).
- With regard to the consequences of the judge's failure to issue an order granting an extension of time it is clear, firstly, that the defence only applied for an extension of time and the judge only granted (or tried to grant) an extension of time because both of them knew that the court could not accept a defence that had been filed late without granting an extension of time first. The granting of the extension of time was therefore critical.
- Secondly, the failure of the court to issue an order granting an extension of time cannot be dismissed by saying 'Oh well, the judge intended to grant the order'; the failure to issue the order means (not surprisingly) that no order was made. Courts cannot and do not operate on the basis of 'Oh well, it doesn't matter if a party actually does something as long as they intended to do it'. This is plain nonsense. The failure of the parties in a case to follow procedures (particularly relating to the filing of documents) can and does have dramatic consequences, up to and including the dismissal of a claim. Every judge and every solicitor knows this full well, and, in fact, solicitors will always try to defeat an opponent on procedural grounds (such as failure to file a document on time) rather than on substantive issues.
- Further, the failure of the defence to notify me that they were making an application, which they should have done via an application notice as required by CPR 23.4(1), and the failure of the court to inform me that the application was being dealt with without a hearing, as required by PD23A 2.4, means that I was denied an opportunity to challenge the order granting an extension of time, as I had the right to do.
- The order refusing to grant my application for default judgment was therefore seriously wrong in a number of ways; (1) the court never issued an order granting an extension of time, (2) the court had no authority to grant an extension of time anyway, (3) the court only granted an extension of time as a result of deliberate obstruction by court staff and (4) I was denied an opportunity to challenge the order granting an extension of time.
- However, in spite of all this my subsequent appeal against the refusal to grant default judgment was dismissed, as I explain below.
- Here is a copy of the defence prepared by the defendants' solicitor, David Armstrong of Berryman Lace Mawer, and barrister, David Platt of Crown Chambers (who acted on the losing side in the famous case of Majrowski v. Guy's and St. Thomas' NHS Trust [2006] UKHL 34, though the blurb on his webpage seems to overlook this small fact - this is rather like saying in your CV that you took a degree at Oxford, but not mentioning the minor point that you failed that degree). As I make clear in my reply to the defence (see below), David Platt deliberately failed (see para 6 of the defence) to address the allegations of fact detailed in the particulars of claim, as required by CPR, while indulging in a highly unprofessional mud-slinging exercise and attempted character assassination (including the fact that I had been involved in two previous, but completely unrelated, cases) and failing to meet other requirements of CPR, such as the requirement to provide the addresses and dates of birth of the defendants (PD16.10).
- On 23 June 2009 I filed a completed allocation questionnaire (this just helps the court to allocate the case to the right track for case management purposes - small track, fast track or multi-track (for the more complex cases).
- On 23 June 2009 I filed a reply to the defence.
6. Court order to file particulars of claim and setting a date for an allocation hearing
NB An allocation hearing is a case management conference held to decide the track to which a case should be allocated - small track, fast track or multi-track (for the more complex cases).
- On 31 July 2009 DJ Alderson issued an order ordering me to file my particulars of claim, which I had in fact delivered to the court by hand on 8 April 2009 (I have a record of payment of the relevant train ticket), and setting a date for an allocation hearing on 3 September 2009. I believe that for a court to remind a party to send in a document like this is not only contrary to CPR (in the sense that it is not provided for in CPR) but might actually prejudice the interests of the other party (because if one party fails to pursue a case in a timely manner, or breaches a time limit, the other party can apply to have their case struck out). My view is that the court staff either lost the document or destroyed it and then, rather than admit it, got a judge to issue an order (which irregular conduct the judge seems to have been quite happy to go along with).
- I tried to send the particulars of claim and related documents by E-Mail (courts have specific E-Mail addresses for filing documents) but after several failures and consequent telephone calls it became apparent (because a member of court staff told me so in a recorded telephone conversation) that the court staff were simply deleting my E-Mails because they did not want to print them off (the particulars of claim are 104 pages long).
- I eventually managed to get the document through by sending them via the Group Court Manager, Ruth Parker, to whom I complained about the whole business.
- In a letter dated 5 August 2009 I also complained to DJ Alderson but he did not reply.
- In a letter dated 12 August 2009 Ruth Parker apologised for what had happened and asked me to address all future correspondence to either herself or to the County Court Manager. This would seem to indicate that she was not confident that her own court staff would handle my case properly (if she did have such confidence then there would have been no need for her request).
7. The allocation hearing - first hearing held on 3 September 2009
- DJ Alderson's order of 31 July 2009 referred to a 'hearing' on 3 September 2009, which I took to mean that I would have to attend court in person (an hour's train journey away in Newcastle-upon-Tyne).
- Because I have a heart condition and suffer from stress and have been advised by my doctor (in writing) to avoid stressful situations, including court appearances, I asked the court manager, in an E-Mail dated 20 August 2009, to ask DJ Alderson if the hearing could be held by way of a telephone conference.
- In a court order dated 24 August 2009 DJ Jackson ordered that I must attend the hearing on 3 September 2009 or provide medical evidence to the effect that I was unable to attend for medical reasons and that if I was not able to attend I must instruct a representative to attend on my behalf (i.e. pay for a barrister and a solicitor to instruct him).
- I therefore sent the court a copy of a letter from my doctor advising me to avoid stressful situations and, following this, DJ Jackson issued an order dated 26 August 2009 ordering the hearing to be held by means of a telephone case management conference.
- The interesting thing about all this palaver is that the court rules (CPR) actually require allocation hearings to be conducted by telephone. PD23 6.2 states:
'Subject to paragraph 6.3 [which does not apply in this case], at a telephone conference enabled court the following hearings will be conducted by telephone unless the court otherwise orders –
(a) allocation hearings;
(b) listing hearings; and
(c) interim applications, case management conferences and pre-trial reviews with a time estimate of no more than one hour.'So why did DJ Jackson order an attended hearing in the first place and why did he require me to produce medical evidence to justify a telephone hearing when he should have ordered a telephone hearing anyway? I can think of no good reason for this, so it looks to me like plain bullying (of a man with a heart condition). Nice!
- At the designated time on 3 September 2009 I received a telephone call from the conference call organisers (they provide a service to the courts connecting, co-ordinating and recording these calls). They connected me to DJ Powell but after a few words had been exchanged I heard nothing. After I had said 'Hello? Hello?' for about 30 seconds the organiser came back on the line and told me that the other party had 'disconnected'. He tried to re-connect me and eventually David Platt, the defence barrister, came on the line. He told me that the judge 'seemed to get frustrated with these telephone problems' and that, having read the papers, he considered the matter to be too complex for a telephone hearing and had therefore 'adjourned the matter for an attended hearing'. Note that the judge's patience seemed to last for about 30 seconds (but telephone hearings are common and judges must be used to occasional technical difficulties). In addition, if the matter was too complex for a telephone hearing he should have decided this beforehand, having, as he said, read the papers, and not allowed the hearing to go ahead at all. To allow the hearing to go ahead was just a waste of time and money, but not his time and money.
- On 4 September 2009 DJ Powell issued an order which started 'Upon hearing counsel for the defendant and the claimant not attending...'. Now this is a direct lie because we had actually spoken to each other when initially connected - so that's a good start. He then continued the order by ordering an attended hearing on 30 October 2009 and threatened that if 'either party fails to attend in person or by solicitor or Counsel the court shall make such orders as it deems appropriate including the striking out of the whole or any part of either parties [I think he means 'party's'] statements of case or particulars.' Although he refers to 'either party' this threat was clearly aimed at me of course.
- So, to put it plainly, DJ Powell compounded a lie by making a threat.
- Naturally I was not happy with the judge's order, not least because (a) it contained a false statement of fact (I had attended the hearing) which, apart from anything else, might be used in future to award related costs against me, and (b) the statement 'upon hearing counsel for the defendant' meant that the judge had proceeded with a hearing in my absence whilst being aware that I was not able to make representations through no fault of my own, which is a breach of my right to a fair trial under the European Convention on Human Rights.
- I challenged the order on the basis that DJ Powell (a) proceeded with a hearing in the absence of one of the parties when he was aware or ought to have been aware that the party concerned was prevented from communicating with the court through no fault of his own (and even then only temporarily), (b) made an order which over-rode an order of a fellow judge, the advice of my doctor and the Civil Procedure Rules (which state that hearings of this type should be held by telephone), causing considerable inconvenience, delay and additional cost to the claimant in the process and (c) made statements of fact that were untrue and likely to be prejudicial to the claimant.
- I made an application to the court by letter dated 24 September 2009 but was told that I could only challenge the order either by way of appeal or by asking for the order to be varied on the basis that I had not been properly heard (but note that CPR 3.1(7) states 'A power of the court under these Rules to make an order includes a power to vary or revoke the order.' Also CPR 3.10 states that 'Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.')
- In the event an order was made on 6 October 2009 ordering a telephone hearing to be held on 30 October 2009.
8. The allocation hearing - second hearing held on 30 October 2009
- A second allocation hearing was held on 30 October 2009, after which DJ Jackson issued an order dated 4 November 2009:
1. Ordering that a hearing be listed for determination of a preliminary issue identified by him; namely the question of whether I had, as I claimed, signed a compromise agreement between me and Lloyds TSB under duress (the issue of duress), because if not the compromise agreement would not be void for duress and might preclude me from taking legal action at all.
2. Ordering standard disclosure by 27 November 2009, inspection by 11 December 2009 and exchange of witness statements by 15 January 2010.
3. Allowing the defendants to instruct a cardiologist and psychiatrist (to examine me).
4. Ordering the defendants to send me a release of my medical records by 6 November 2009 and ordering me to sign a release of my medical records by 13 November 2009.
5. Ordering me to attend medical examinations and for the medical experts to report by 26 February 2010. (This order was unlawful as described below)
6. Ordering a further case management conference to be held after the above had been done on the first available date after 15 March 2010.9. My response to allocation hearing - request that judge stand down
- In a letter dated 2 November 2009 I wrote to DJ Jackson to raise a number of points about his order, inter alia, as follows:
Firstly, I said that it appeared to me that there were two preliminary issues that needed to be considered before the preliminary issue of duress was considered, both of which related to the validity of the compromise agreement. These issues were 'pre-preliminary', if you like, because if the compromise agreement was void or invalid then the issue of whether I signed it under duress did not arise. I pointed out to DJ Jackson that I had already raised one of these issues in my reply to the defence and that the other one was evident simply by reading the compromise agreement, both of which documents the judge and the defence had had in their possession well before the hearing (and bearing in mind that DJ Jackson had said that he had read all the papers 'with some particularity'). The question is one of why DJ Jackson failed to identity these pre-preliminary issues given that he had a acknowledged duty to do so (i.e. it was him who identified the preliminary issue of duress).
Secondly, I said that since the pre-preliminary issues arose from, in the first case, the Unfair Contract Terms Act 1977 and, in the second case, the Employment Rights Act 1996, and since David Platt, the defence's barrister, was aware of the provisions of both of these Acts, David Platt was intentionally breaking the Bar Code of Conduct 708(c) which states that ‘A barrister when conducting proceedings in Court must [my emphasis] ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues.’ and that this amounted to professional misconduct on his (David Platt's) part. (It would not be unreasonable to assume that DJ Jackson was also aware of these Acts - unless they put a judge who was ignorant of the relevant law in charge of the case).
Thirdly, I asked DJ Jackson to recuse himself (step down) on the basis of various comments he had made during the hearing which, it appeared to me, would cause a fair-minded and independent observer to conclude that there was a real risk that, as I wrote to him, 'you had formed or were likely to form a view on the issue before it had been properly argued before you and before you had considered all the relevant evidence and that you were therefore not fully open-minded about the issue; in other words, that you were biased.' These comments included:
1. a reference to a ‘vague suggestion of duress’;
2. a statement that 'I can't see on these papers how you didn't have a free choice';
3. a statement to the effect that 'it's going to be extremely difficult for you'.Note that it is established law that a judge should step down where there is a perceived risk of bias. See also Marstons Plc v Charman & Ors [2009] EWCA Civ 719 at 16 'The difficulty, as it turns out, was that his concern led him - apparently very largely of his motion, because, as I have already commented, there was no application to strike out on the merits before him - to consider in these circumstances what the likely outcome of the proceedings might be. The judge appears for these purposes to have been satisfied that, to the extent that Marstons ' claim depended upon a claim in respect of dilapidations, there was a proper defence. He made no adverse comment in respect of the defence in respect of dilapidations. However, he contrasted that, in his judgment at any rate, with what he described as being the "shadowy defence" to the extent that it went beyond the question of dilapidations. To the extent that the judge did so, in my respectful judgment, he was proceeding incautiously beyond the matters which had been raised before him, and, inasmuch as he was dealing with a litigant in person, that incautiousness might be said to have amounted to unfairness.'
Fourthly, I referred to my request at the hearing that I should only be required to release medical records to the extent that was necessary (i.e. that I should only be required to release relevant medical records) as ruled in Z v Finland (1997) 25 EHRR 371, 1997-I 323 and that his order that I should release all of my records was a breach of my right to privacy under article 8 of the European Convention on Human Rights and was therefore unlawful. In later correspondence I also pointed out to David Armstrong, the defence's solicitor, that case law had established that medical records should be released to the defence's medical expert and not to the defence's solicitors, as they were trying to get me to do (See Bennett v Compass Group UK & Ors [2002] EWCA Civ 642 at 27 where Clarke LJ quotes Stuart-Smith LJ from Dunn v British Coal Corporation [1993] PIQR 275 at page 280: ‘Since 1970 the position is almost always dealt with by the plaintiff consenting to the production of the relevant documents to the defendant's medical advisers'). This was a Court of Appeal decision and therefore binding on the court. See also the Pre-Action Protocol for Personal Injury Claims 3.16 and Annex C.
Fifthly, I objected to David Platt, the defence's barrister, openly threatening me in court with bankruptcy. I said 'while it may be legitimate to advise a party of the potential consequences of a particular course of action in terms of costs, it is not legitimate to do so if that party is patently already aware of the potential consequences in terms of costs (and reading the submissions in this case would lead anyone to conclude that I am perfectly familiar with these matters). Where a party is already aware then the only possible reason for making such statements is to threaten. This is what Mr. Platt did and what he intended to do, although you stated otherwise, and his words and the tone of his voice make this quite clear. Such conduct is completely unacceptable, particularly when the target of the conduct is not only a litigant in person but is actually prevented from attending court due to the state of his health, including a heart condition. In such circumstances Mr. Platt’s conduct was nothing short of an outrage; an outrage against both myself and the court. I am curious as to whether Mr. Platt is in the habit of conducting himself in this manner in open court with other members of his profession, or whether he reserves this sort of conduct for litigants in person with heart conditions.'
(In letter dated 14 November 2009 I wrote to David Armstrong that: 'Mr. Platt was not ‘suggesting’ (as you say) that ‘actions have consequences’, he was threatening me. He warned me (he used the word ‘warn’) that he would ‘seek costs if an application of that nature [for striking out] is made’. He also said ‘if necessary I’ll be seeking remedies on the basis of Mr. Milne’s failure to pay those costs’ i.e. he would try to bankrupt me or have my property seized by bailiffs.)
- In a letter dated 5 November 2009 David Armstrong, solicitor for the defence, wrote 'District Judge Jackson is entitled to make observations on the strength of your case and upon its prospects of success on the basis of the evidence he has seen. He has read everything put before him. We appreciate that you disagree with his observations.' For my views on this assertion see my letter to DJ Jackson of 11 November 2009 below.
- In a letter dated 6 November 2009 the court wrote to me that 'the order has been made so that the alternatives are appealing the order (as you indicate in your letter) or by further application if appropriate.'
In an E-Mail dated 29 August 2010 I wrote to Ruth Parker as follows: 'I wrote to DJ Jackson on 2/11/2009 asking him to reconsider his order made verbally at a hearing 30/10/2009 (this order was not drafted until 4/11/2009). In a letter dated 6/11/2009 Mr R Gilling wrote to me: 'The order has been made so that the alternatives are appealing the order (as you indicate in your letter) or by further application as appropriate'. This is untrue. Under CPR 3.1(7) the court has the power to vary or revoke an order and I was therefore perfectly free to write to DJ Jackson as I did. Could you please investigate this matter and explain why I was given an incorrect answer.'
In an E-Mail dated 9 September 2010 Ian Cuthebertson, a member of court staff, wrote to me as follows:
'Mr Gilling's reply is exactly as you say, however the preceding lines say that the District Judge has considered the letter dated 2nd November 2009. We have done as asked; the letter was referred to the District Judge. The answer given in the reply is not advice from a member of staff, but is a judicial decision. I apologise if this was not clear to you.'
This just means that it was the judge who misled me rather than court staff. You are entitled to make an application by letter (PD23 2.1 says 'Practice Form N244 may [my emphasis] be used') and this is what I did. To respond to an application with 'you must make an application' is just nonsense - pure obstruction. What they should have said was that since my letter amounted to an application I should have paid the relevant court fee or (in my case) applied for fee remission. Literally, all they had to do was to say 'We have received your application by letter but we should inform you that when you make such an application you must either pay the court fee for making an application or apply for a fee remission.' How much more simple can it get? Seriously, these people are under an over-riding obligation under CPR 1 to ensure that justice is done between the parties, and this includes making sure than a litigant in person is not disadvantaged by a lack of knowledge of the rules. Ask yourself whether they have fulfilled that duty.
In an E-Mail dated 9 September 2010 I wrote to Ian Cuthebertson follows:
'A judicial decision? So that's OK then? It doesn't matter if the man was lying through his teeth? Tell me, if a judge says something that is clearly wrong or misleading, as a statement of fact on a matter of procedure, are court staff under no duty to point out his error to him [particularly where they are going to have to sign a letter repeating the judge's wrong or misleading statement]? Certainly, in court, a barrister must do exactly that. You seem to have adopted the attitude 'Tough, there's nothing you can do about it and we take no responsibility'. Does this sum up your attitude? I think so. It doesn't sound so nice put like that does it?'
In an E-Mail dated 15 September 2010 Ian Cuthebertson, a member of court staff wrote to me as follows:
'Your request was put before the District Judge who considered it and made a decision which was communicated to you. Court staff are not legally qualified and are not in a position to question the reply from a Judge. The analogy with a barrister in court is not appropriate as by their nature they are highly qualified and in a position to argue a point of law, but even then when a judge has made a decision, it either has to be accepted or appealed. It is not a question of avoiding responsibility. Court staff are not in a position to query decisions and therefore do not have the responsibility to do so.'
This is rubbish. Point One - Court staff may not be legally qualified but they are supposed to know about procedure. Point two - a decision does not have to be appealed or accepted; a party can apply (by letter if he wants) to have a decision revoked or varied. Point 3 - court staff are most certainly in a position (under a duty in fact) to point out any 'error' that they have been asked to repeat in a letter which they will sign.
In an E-Mail dated 9 September 2010 I wrote to Ian Cuthebertson follows:
'The letter was from a member of court staff. If a judge tells a member of court staff to write a letter to someone saying that the law says x and the member of court staff knows this is wrong or misleading then they are bound to tell the judge that. The law in question was a simple matter of procedure and court staff are supposed to know about procedure and to advise members of the public on it. The person who wrote to me should have known about this simple matter of procedure. If he didn't then he was negligent; if he did know and didn't correct the judge then he was also at fault. Either way he was in the wrong. What worries me more though is the fact that you apparently can't work this out for yourself and are prepared to argue the matter until kingdom come. I am appalled how you people try to hide your laziness and ignorance behind such excuses as you use. You SHOULD know about procedure; you do it every day of the week for heaven's sake. The rules are called 'The Civil PROCEDURE Rules' and you should know them. End of argument.'
- In a letter dated 11 November 2009 I wrote to DJ Jackson, inter alia, as follows:
Firstly, I wrote about his refusal to respond to my request for recusal by referring him to two cases in the Court of Appeal which refer to making such requests by letter; indeed, in one of them the Court of Appeal actually recommends that such requests should be made by letter (see Director General of Fair Trading v Proprietary Association of Great Britain & Ors [2000] EWCA Civ 350 and El-Farargy v El Farargy & Ors [2007] EWCA Civ 1149 at 32). So who is right? DJ Jackson or the Court of Appeal? Perhaps DJ Jackson is unaware that he is legally bound by decisions of the Court of Appeal. I wrote further: 'On the above basis I can only regard your refusal to consider my request as simple obstruction, but if there is any other reason please let me know and I will withdraw my remarks immediately. This appears to be deliberate obstruction by a judge of a litigant in person with a heart condition, who suffers from stress and has been advised by his doctor not to attend court hearings on account of the risk to this health. So, even if it could be argued that your comments at the hearing on 30/10/09 do not provide sufficient grounds for you to recuse yourself, your refusal to even consider my letter of 2/11/09 certainly reinforces my concerns about your lack of impartiality in this case. I therefore repeat my request that you recuse yourself for the reasons given in my letter of 2/11/09 and for the additional reason given above.'
Secondly, in relation to DJ Jackson's unwarranted comments and David Armstrong's assertion that the judge was entitled to make comments I posed the following questions (just to make it simple for him):
'Q: Do we agree that it is critical that justice must not only be done but should be seen to be done?
A: Agreed.
Q: On this basis any conduct on the part of a judge which could be taken to indicate partiality should be avoided?
A: Agreed.
Q: So a judge should generally avoid making comments about his views as to the likely outcome of a case or the merits of the arguments of any of the parties?
A: Agreed.
Q: As Lord Justice Ward says [El-Farargy v El Farargy & Ors [2007] EWCA Civ 1149], it is better that a judge should keep his thoughts to himself?
A: Agreed.
Q: In other words, a judge should not make any such comments without good reason?
A: Agreed.
Q: ‘Good reason’ meaning that there is some positive requirement for the judge to make such comments – in the interests of achieving justice as per the overriding objective of the Civil Procedure Rules?
A: Agreed.
Q: And if there is such a positive requirement then the judge should explain what it is – in order to avoid any possibility that people might misunderstand why he has made such comments?
A: Agreed.
Q: This is not a difficult proposition?
A: Agreed.
Q: A judge should be able to work this out for himself?
A: Agreed.
Q: So, if a judge makes such comments and does not explain why he is positively required to do so, it is reasonable for people to assume that there is no such positive requirement?
A: Agreed.
Q: And the absence of a positive requirement provides a reasonable basis for asking for the judge to recuse himself – because, prima facie, it means that the judge is making such comments without good reason?
A: Agreed.
Q: And if a party then asks the judge to recuse himself and does so in a manner recommended by the Court of Appeal, that is by letter, and the judge refuses to consider that letter, the party concerned is justified in taking the view that such conduct on the part of the judge reinforces their concerns about his impartiality?
A: Agreed.It is quite clear, therefore, that a judge should avoid making comments on the merits of the arguments of any party or expressing a view as to the likely outcome of a case unless there is a specific and positive reason for him to do so in the interests of ensuring that justice is done in accordance with the overriding objective of the Civil Procedure Rules.'
With regard to the court's letter of 6 November 2009 saying that I should either appeal or make a further application to the court I wrote:
'With regard to my request that you vary your order, Mr. Gilling’s response in his letter of 6/11/09 (on your instructions I assume) was that I should appeal.
I sent my letter of request to you on 2/11/09 and your order is dated 4/11/09, so it would appear that you had an opportunity to consider my letter before you made your order. The question is whether you could have taken my letter into account at that stage.
You will recall that by an order dated 28/8/09 you ordered a telephone hearing to be held on 3/9/09, which was started but abandoned by the judge (Judge Powell) because of some minor communication problems. By an order dated 4/9/09 Judge Powell ordered that a hearing in court be held on 30/10/09. I made an application by a letter of 24/9/09 for this order to be amended to the effect that the hearing should be held by telephone. By an order dated 6/10/09, and following consultation with the defendant, the order of 4/9/09 was amended accordingly.
This chain of events appears to demonstrate quite clearly that a judge can amend an order on the basis of a letter from one of the parties (either that or the order of 4/9/09 was amended unlawfully). If this is the case then why am I now being told that I can only seek to have the order of 4/11/09 amended by means of appeal?
In the absence of a proper explanation (Mr. Gilling was unable to explain the matter to me when I spoke with him on the phone on 11/11/09) I can only regard your conduct as a further attempt to obstruct me.
Again, PD23 2.1 states that interim applications may be made using from N244, so there was nothing to prevent you treating my letter as an interim application if that was what was required.
Again, this appears to be deliberate obstruction by a judge of a litigant in person with a heart condition, who suffers from stress and has been advised by his doctor not to attend court hearings on account of the risk to this health.
Again, if there is a proper explanation please let me know and I will withdraw my remarks immediately.'
- On 17 November 2009 Ruth Parker E-Mailed me in response to my letter to DJ Jackson of 11 November 2009 to say: 'I acknowledge receipt of the attached document which has been placed on the file.' (There were several E-Mails after this where I tried to confirm that my letter had actually been sent to the judge. Believe me, you have to be very careful with these people.)
- On 20 November 2009 I wrote further to DJ Jackson pointing out that his order that I submit to a medical examination was unlawful, as follows:
'I am writing with reference to the above case, to the telephone hearing which you held on 30/10/2009, to my letter to you of 2/11/09 concerning that hearing, to your order dated 4/11/09, to the letter to me from Mr. R Gilling, Judgements Section, of 6/11/09 in response to my letter of 2/11/09, written, I assume, on your instructions, and to my letter of 11/11/09.
Your order dated 4/11/09 states ‘8. Claimant will attend for examination by experts if requested, defendant meeting his reasonable expenses in advance.’
This order appears to be unlawful. ‘A Practical Approach to Civil Procedure’ (Sime, Stuart, OUP, 9th Edition, 2006) states on page 350 that ‘it has always been held that there is no power to order a claimant to submit to a medical examination.’ See also Dunn v British Coal Corporation [1993] PIQR 275, Edmeades v Thames Board Mills Limited [1969] 2 QB 67, Bennett v Compass Group UK & Ors [2002] EWCA Civ 642, Mearns v Smedvig Ltd & Ors [1998] ScotCS 76, Junner v North British Railway Co (1877) 4R686, Starr v National Coal Board [1977] 1 W.L.R. 63.
I will be grateful to know how you intend to resolve this situation. If it is necessary for me to appeal then I request permission accordingly. I would appeal on the grounds (1) of unlawfulness, as stated above, and for the reasons given in my letter of 2/11/09 to the effect (2) that the issue of duress would only need to be resolved after the other issues I raised have been resolved (that is (1) whether the compromise agreement has been signed by the bank, (2) whether the agreement covers all of my claims and (3) whether the agreement is void under s.203(3)(b) Employment Rights Act 1996) and (3) that medical examinations more than 5 years after the event (as opposed to examination of the relevant medical records) cannot provide meaningful evidence either way as to whether I acted under duress at the time.'
I repeated my request that he recuse himself.
- On 24 November 2009 Ruth Parker wrote to me that 'The Judge is unable to enter into correspondence about the case. It remains the position that the Judge has made the order and, if you choose to appeal all or part of the order, you must make a formal application to a Circuit Judge for permission to appeal (out of time if appropriate).' The assertion that the judge 'is unable to enter into correspondence about the case' ignores the fact that he can (in fact, must), as proved by the Court of Appeal cases I have cited above, respond to (i.e. act on) a recusal request made by letter, so her letter is just pure evasion. (Note also that CPR 3.1(7) states 'A power of the court under these Rules to make an order includes a power to vary or revoke the order.')
- On 2 December 2009 I appealed against DJ Jackson's unlawful order that I should attend a medical examination and release all of my medical records.
- On the same day I wrote to Ruth Parker that 'I have sent off my appeal against Judge Jackson's order of 30/10. I am appalled at what has happened (judges knowingly making unlawful orders among other things) but I am even more appalled at his total refusal to respond to my request that he recuse himself (in the face of the Court of Appeal guidance). He is clearly determined to bully his way through - but that is his choice and he must take the consequences.'
- By a court order dated 17 December 2009 the court ordered a case management conference to be held on 7 January 2010. This was in response to an application dated 30 November 2009 by the defendants for an extension of time for serving their disclosure list (on account of annual leave - a thoroughly good reason - not).
- By a court order dated 5 January 2010 the court ordered that a permission hearing should be held at a date to be determined and that the order of 4 November 2009 be stayed (Note that the defendants should have made standard disclosure by 27 November 2009; that is, before the stay was ordered). A permission hearing is not a hearing of the appeal itself but a hearing to decide whether you should be given permission to appeal in the first place.
- By a court order dated 5 January 2010 the court ordered a permission hearing to be held on 20 January 2010.
- By a telephone call on 6 January 2010 I was informed that the case management hearing scheduled for 7 January 2010 had been postponed pending the outcome of my appeal.
- Following the permission hearing, by an order dated 1 February 2010 I was given permission to appeal but the parties were given 14 days to consider agreeing a way forward with respect to the medical examination and the disclosure of medical records (see next section).
- In an E-Mail dated 25 February 2010 I notified the court of my decision not to pursue the appeal. I took this decision because it had become clear to me that it would not be of any practical benefit proving, as a point of principle, that DJ Jackson had issued an unlawful order and would just waste my time and possibly lead to further costs. In other words I had come to the conclusion that a judge can knowingly do something wrong, even unlawful, and there is absolutely no comeback on him (see below for details of my complaint about DJ Jackson to the Office for Judicial Complaints); it just means that the parties to the case have to sort out the mess at their own expense. Such is the judicial system.
- According to David Armstrong (E-Mail of 17 February 2010) the effect of abandoning the appeal was to re-instate the order dated 4 November 2009 (above). This is rubbish; the stay was removed by the court by an order dated 3 March 2010.
11. Arranging the medical examination
- By a letter dated 5 January 2010 David Armstrong wrote to inform me that he had received my signed mandate for the release of my medical records and had arranged for me to attend a medical on 9 February 2010.
- In an E-Mail dated 14 January 2010 I informed David Armstrong that the relevant order (ordering me to attend a medical) had been suspended pending my appeal.
- In an E-Mail dated 25 January 2010 David Armstrong asked me what the outcome of the permission hearing on 20 January 2010 was and said that if the application had been successful then he would have to cancel the appointment on 9 February 2010.
- In an E-Mail dated 1 February 2010 I told David Armstrong that I had been granted leave to appeal and that I was waiting to see the text of the judgment before deciding how to proceed.
- In an E-Mail dated 8 February 2010 I asked David Armstrong to arrange another date for a medical and asked him to propose a form of wording concerning medical records (see the court order of 1 February 2010 above).
- In an E-Mail dated 11 February 2010 David Armstrong informed me that he was trying to arrange another appointment for a medical.
- On 3 March 2010 I sent a reminder E-Mail to David Armstrong.
- On 5 March 2010 I sent a reminder E-Mail to David Armstrong.
- On 9 March 2010 I sent a reminder E-Mail to David Armstrong.
- On 10 March 2010 David Armstrong wrote to me by E-Mail to tell me that his medical expert now had a waiting list of 6 months and that he was trying to find another medical expert.
- By an E-Mail dated 11 March 2010 I provided David Armstrong with details of an expert who was available in the next few weeks. I pointed out that this expert had been recommended to me by the secretary to the defence's own medical expert, who I assumed he (David Armstrong) had talked to when asking about that medical expert's availability.
- By an E-Mail dated 12 March 2010 I provided David Armstrong with details of a second expert who was available in the next few weeks. I pointed out that I had found this expert in a few minutes on the internet and that he had confirmed his availability by E-Mail on the same day.
- Following the case management conference of 18 May 2010 (see following section) the judge ordered that I should attend a medical on 27 July 2010. I did not do this because the defence failed to send me a mandate for the release of my medical records as ordered by the court, as explained below.
12. The case management conference of 18 May 2010
- On 10 March 2010 Ruth Parker wrote to inform me that DJ Jackson had issued an order dated 3 March 2010 to the effect that the stay of the order of 4 November 2010 was lifted and that a case management conference was to be listed on the 'next available date'.
- By a notice dated 17 March 2010 a case management conference was listed for 18 May 2010, two months ahead. In subsequent E-Mails I questioned why there should be such a delay and made a Freedom of Information Act request for details of the unallocated time of the judges in April and May. The court simply refused to provide this information but I assume a judge can ask for a summary of his future appointments from the court's diary system, so the information must be available. If they can't get that information then they must have a pretty useless diary system!).
- On 24 April 2010 I wrote to Ruth Parker to ask why the hearing of 18 May 2010 had been arranged as an attended hearing when CPR (PD23 6.2) states that case management conferences of less than one hour should be held by telephone conference. This was a misunderstanding on my part because the 'Notice of Case Management Conference' letter had said that a hearing would be held 'at Newcastle-upon-Tyne County Court, Law Courts, The Quayside, Newcastle-upon-Tyne NE1 3LA when you should attend' [my emphasis], but later on in the letter it said 'The hearing of this case will take place by way of telephone conference'. It took several E-Mails to sort this contradictory letter out.
- The hearing was held on 18 May 2010. It is worth noting that DJ Morgan said during this hearing (11.03 and 32.41-33.18) that the effect of my appealing against the order of 4 November 2010 was to stay (suspend) that order. This is wrong because CPR 52.7 provides that 'an appeal shall not operate as a stay of any order or decision of the lower court', so that it was not until the court stayed the order on 5 January 2010 that it was stayed. This is basic stuff and I simply do not believe that DJ Morgan can possibly have been unaware of this rule. In short, he was lying.
- In a letter dated 28 May 2010 the court sent to me the order of DJ Morgan arising from the hearing on 18 May 2010.
'1) Disclosure of documents shall be dealt with as follows:
a) Both parties shall give to each other standard disclosure by list, the lists to be served by 4pm on Wednesday, 2nd June 2010.
b) Any request for a copy, or inspection, of any document shall be complied with by 4pm on Tuesday, 15th June 2010.
c) The disclosure of documents shall be confined to those documents relevant to the issue of the Compromise Agreement and the circumstances of its execution by the Claimant in the light of his allegations of duress.
d) The Court approves disclosure in electronic format.2) Both parties shall, by 4pm on Friday, 27th August 2010, serve on each other the witness statements of themselves and of all witnesses (other than expert witnesses) on whom they intend to rely.
3) The statements shall be confined to the issue of the Compromise Agreement and the circumstances of its execution by the Claimant in the light of his allegations of duress.
4) No party may rely on or adduce the evidence of any witness whose statement has not been served in accordance with this Order without further permission from the court.
5) On it appearing to the court that evidence is needed from an expert Consultant Cardiologist and Psychiatrist, both parties have permission to use in evidence one such expert's report, the Claimant also having permission (if so advised) to file a report from his General Medical Practitioner.a) The parties shall exchange reports setting out the substance of the expert evidence on which they intend to rely by 4pm on Friday, 27th August 2010.
b) The Court will give such further directions that are necessary in relation to expert evidence at the next case management conference.6) The Claimant shall sign a release of his medical records to the Defendant to be forwarded by the Defendant by 4pm 21 May 2010 and returned signed by the Claimant by 4pm 1 June 2010.
7) The Claimant shall attend for examination by experts if requested to do so (having already agreed to attend upon the Defendant's Consultant Psychiatrist Dr El Azra at 9.30 am 27 July 2010) the Defendants meeting his reasonable expenses in attending upon the appointment in advance.
8) The claim shall be listed before District Judge DG Morgan MBE for a case management conference on the first available date after 7th September 2010 with a time estimate of one hour.
9) The case management conference shall be conducted by telephone. The Defendant shall make the relevant arrangements in accordance with the Practice Direction to Part 23 of the Civil Procedure Rules.
10) At least three clear working days before the case management conference the Defendant shall send to the court and the Claimant draft directions which the Defendant shall endeavour to agree with the Claimant and a case summary limited to 250 words.
11) If an order is made for payment of the costs of the case generally, then the costs of today shall form part of those costs.'- Following the hearing on 18 May 2010 I wrote to Ruth Parker as follows:
'I am writing to District Judge Morgan with reference to the telephone hearing on 18th May. I will be grateful if you could forward this to him. The judge said that if I had any concerns about his order that I could contact him. Since I have not yet received any order resulting from this hearing I am writing to him now.
Judge Morgan said that he would be ordering me to disclose my medical records. This means all of my medical records going back to birth. At the same time, in relation to disclosure, Mr. Platt said that he intended to, and the judge concurred, only disclose information that related to the preliminary issue; that is, the question of duress. Mr. Platt said that I had disclosed material covering the whole history of my employment with the bank and made it clear that he did not consider this material to be relevant to the issue of duress and that, for this reason, he did not intend that the defendants should disclose such material themselves. It is clear therefore that, in relation to the question of duress, I am being ordered to disclose my medical records going back to birth (the judge deems these to be relevant) but that the defendants are not expected (and are not being ordered) to disclose records even covering my period of employment with the bank going back to 1998. The question is how can my medical records going back to birth be relevant to the question of duress while the history of my employment with the bank (which had a far more immediate impact on my state of mind at the time I signed the compromise agreement) going back to 1998 be irrelevant? In other words, how is it possible to properly assess my state of mind at the time without assessing it in the context of the history of my relations with the defendants? It is quite clear that it is not possible to make a proper assessment on this basis. The judge's orders in relation to my disclosure of my medical records and the defendants disclosure of material relating to the history of my employment and relations with the defendants are therefore utterly inconsistent. It is quite clear that Mr. Platt is trying to exclude from consideration material that he knows to be relevant (indeed critical) because he knows that this material will bear very strongly against his side. He has a clear motive for wanting this material to be excluded. But more worrying is the question of why the judge has allowed this to happen. Was he unaware of the extraordinary inconsistency? If he was then he was, in my view, negligent; if he was not (i.e. if he was aware but did nothing about it) then he was aware that I was being seriously prejudiced but decided to do nothing about it. Why is this?
A further point is that I wrote to Judge Jackson identifying certain preliminary issues that need to be addressed even before this preliminary issue of duress was addressed; these included the (rather critical) question of whether the bank actually signed the compromise agreement (because if they didn't then the whole duress issue falls to the ground). Although I did not raise these issues at the hearing on the 18th, I was not under an obligation to. But the court is under an obligation to identify such issues (this is why Judge Jackson identified the duress issue) and District Judge Morgan should have done so, given that I had specifically raised them with the court. So why did he ignore these matters?
A further point was that District Judge Morgan threatened that if I failed to comply with his order to disclose my medical records then my case would be struck out. But why did he threaten me concerning a possible future breach of a court order when the only party who have ACTUALLY breached a court order in this case are the defendants (they failed to comply with the order relating to disclosure - and my appeal is no justification for this failure because I appealed AFTER the date disclosure was due)?* The defendants therefore are the only party to have breached a court order but the judge then threatens me with consequences for failure to comply with a court order. Why did he do this?
*[Note also that CPR 52.7 provides that an appeal shall not operate as a stay of any order or decision of the lower court, so that it was not until the court stayed the order that it was stayed - surprise, surprise.]
The judge's (1) inconsistent treatment of the parties relating to disclosure of material, (2) his failure to address what are clearly important preliminary issues that I have raised in correspondence with the court and (3) his open threats against me when it is the defendants who are the only side who have failed to comply with a court order, are deeply worrying.
I therefore ask that the court address these issues (1, 2 and 3 above) and amend the proposed order accordingly and specifically to order (1) the defendants to disclose all material relating to my employment with the bank going back to 1998 and (2) to order that the preliminary issues I wrote to Judge Jackson about are considered in their proper place (i.e. before the issue of duress).
I also ask that this E-Mail be considered at the next case management conference.'
- I received no reply, even though DJ Morgan has specifically said during the hearing that I should write to him if I had any concern about his order (which was formulated during the hearing) and that I had done so promptly and before he issued his order. (Note that CPR 3.1(7) states 'A power of the court under these Rules to make an order includes a power to vary or revoke the order.'
- In an E-mail dated 31 May 2010 I made a complaint against DJ Jackson to the Office for Judicial Complaints on the grounds that he had refused to respond to a properly-made request that he recuse himself.
- In an E-Mail dated 22 June 2010 Max Mulvaney of the Office for Judicial Complaints wrote to me and said that I had complained on the basis that I was:
'unhappy that District Judge Jackson refused to recuse himself from your case despite your written request that he do so'
and that
'having considered the matters that you have raised in your complaint, I have concluded that they relate to the decisions that the judicial office holder concerned made in your case. As well as judgments and pronouncements at the conclusion of a case, judicial decisions also cover decisions as to whether or not to sit on a given case. The Office for Judicial Complaints cannot intervene in such matters and I must therefore dismiss your complaint, insofar as it relates to judicial decisions and judicial case management, in accordance with Regulation 14(1)(b) of the Judicial Discipline (Prescribed Procedures) Regulations 2006.'
- In an E-Mail dated 24 June 2010 I wrote to Max Mulvaney as follows:
'You have completely misinterpreted my complaint, which was not that the judge refused to recuse himself but that he refused to respond at all to my request that he recuse himself, in spite of clear guidance (which I quoted to him) from the Court of Appeal that the correct procedure was to write to the judge (as I did). So we did not even get to the stage of a decision not to recuse, as you state, because the judge refused to reply to my request at all. This is not a 'judicial decision' but a simple refusal on the part of the judge to comply with the proper procedure, as laid down by the Court of Appeal. You will need to re-assess my complaint.'
- In an E-Mail dated 25 June 2010 Max Mulvaney wrote to me:
'Please accept my apologies for any confusion in relation to my summary of your complaint, however, in any case it is entirely a matter for the trial Judge to decide whether or not to reply to correspondence from a party involved in proceedings. Judges are under no obligation to do so and it cannot, therefore, be considered personal misconduct if Judge Jackson failed to respond to your request that he recuse himself from your case.
If you are unhappy about such a decision, I can only suggest that you seek legal advice with a view to challenging it via the legal process itself.'
- In an E-Mail dated 24 June 2010 I wrote to Max Mulvaney as follows:
'Your statement that a judge is not obliged to even respond to a request to recuse himself is nonsense. As stated in Hamilton v. GMB (Northern Region) [2006] UKEAT 0184_06_3011 at 29:
'the court [i.e. the judge or judges if more than one] MUST [my emphasis] first ascertain all the relevant circumstances which have a bearing on the allegation of bias; and then assess that information as would a fair-minded and informed observer'
I would also refer you to Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6 where it was stated at 6:
'Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under Article 6 of the European Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.'
Therefore a court MUST respond to and assess a request for recusal.
You assertion is plain nonsense and I wish to complain about your conduct to your superiors. I look forward to hearing from you.'
- There then followed a number of telephone calls with Jane Tweedie of the Office for Judicial Complaints. During these I pointed out to her that, as in fact she knew every well, The Judicial Discipline Regulations (Prescribed Procedures) 2006 (SI 2006/676), section 14(1)(b), says that the OJC must dismiss a complaint if 'it is about a judicial decision or judicial case management, and raises no question of misconduct [my emphasis]'. What this means, of course, is that where a complaint does raise a question of misconduct the OJC should consider it even if the complaint relates to a judicial decision or judicial case management - but the OJC tells complainants that it cannot investigate any complaint that relates to a judicial decision, which is patently untrue (in fact it is a lie because they know it to be untrue). They go further and say that they can only investigate complaints about 'personal misconduct', but there is no mention of 'personal misconduct' in the regulations; they only refer to 'misconduct' as quoted.
- In an E-Mail dated 30 June 2010 Jane Tweedie wrote to me as follows:
'I have read through the complaint file and have read the attachment you sent today. I acknowledge that you are dissatisfied with the Judge's response to your letter [there was no response, that was the whole point of my complaint!] and specifically your request for him to recuse himself. However the OJC has no power to refer your complaint to the Judge and ask him to send you another response to your request or ask him for reasons as to why he gave the response he did which was communicated to you by letter from Mr Gilling. If the Judge did not respond to the request in your letter to recuse himself, that is his decision and not a matter we can question or intervene in. I can only reiterate that members of the judiciary are not obliged to enter into any correspondence with parties to a case outside of the courtroom. If you wished to pursue the recusal point you would need to consider making a formal application for such to the court which would result in an order being made which you could then appeal if so advised.
I understand you will be dissatisfied with my response and I am sorry we are unable to assist you further. As stated above, please feel free to ring me if you wish to. The only other option I can advise is to contact the Judicial Conduct Ombudsman about our handling of the complaint.'
- The assertion that judges are not obliged to enter into any correspondence with parties is irrelevant, as she well knows; it is just a red herring. The point is that judges must respond to (i.e. act on) a properly-made request that they recuse themselves (why do I need to even say this?) and the Court of Appeal itself has said that, as stated above, a request for recusal should be made by letter. It is also worth noting that CPR 23.1 states that ‘application notice’ means a document [my emphasis] in which the applicant states his intention to seek a court order' and that PD23A 2.1 states 'Practice Form N244 may be used'. This means that applications to the court can be made by letter - so clearly you cannot assume that all letters are mere correspondence. In addition, when you ask a judge to stand down you are not asking for a court order, so the request is not an application as defined by CPR 23.1, nor is such a request an appeal, because an appeal is an appeal against a decision of the court - but in a recusal request there is no decision to appeal against. In other words, an application for recusal is neither an application as such, neither is it an appeal, so how else can you make such a request other than by letter? But if you do this and the judge refuses to reply the OJC will say that the judge is not obliged to 'enter into correspondence'. Knotty one that.
- It appears on this basis that a judge is completely above the law. He can make disparaging comments about a party's case which give rise to serious concern about his independence and a risk that he has pre-judged (or is tending to pre-judge) the matter, and having done this he can completely ignore a request that he stand down; he doesn't have to say that he has considered the request to stand down and declined it, he can just refuse to respond to the request at all, and all this in spite of the fact that the Court of Appeal (whose decisions are binding on the judge) has specifically said that requests for recusal should be made by a letter addressed to the judge.
- This saga demonstrates quite clearly, I think, that the Office for Judicial Complaints is corrupt to the core. It became apparent to me that they spend the vast majority of their time defending the judiciary from complaints against them, rather than representing the interests of the complainants. They have therefore managed to end up doing the exact opposite of what they are supposed to do. And because they are the guardians of users of the court system against misconduct by judges, it is not too much to say that they have brought the system of justice in this country to its knees. There is no remedy against judicial misconduct, except possibly in the most crass and obvious cases.
- By an application dated 13 July 2010 I applied to strike out the defence on the basis that they had failed to comply with the court order of 18 May 2010 in that they had not sent me a mandate for release of my medical records by 21 May 2010 and had not made standard disclosure by 2 June 2010. I also asked for summary judgment on the basis that if the defence was struck out they would have no reasonable prospect of defending the claim.
- In a letter dated 20 July 2010 David Armstrong said that he was writing further to his E-Mail of 20 May 2010 and my reply of 27 May 2010 to the effect that he had not received the signed mandate (for release of my medical records) and enclosed a cheque to cover my expenses for attending the medical.
- In an E-Mail dated 21 July 2010 wrote to David Armstrong to say that the reason that I had not returned the mandate was because he had not sent one to me in the first place (by 21 May 2010), as required by the court order dated 18 May 2010. I noted that he had also not made standard disclosure by 2 June 2010 as required by the court order and I asked him to send me a cheque made payable to another name. This shows that at that time I was intending to attend the medical arranged for 27 July 2010.
- In a letter dated 21 July 2010 David Armstrong sent a mandate for the release of my medical records and another cheque.
- In an E-Mail dated 22 July 2010 I wrote to David Armstrong to point out that it was now too late for my medical records to reach his medical expert before my appointment on 27 July 2010, as follows:
'I received the mandate for the release of my medical records today (Thursday).
If I post this to you today it will not arrive until tomorrow (Friday).
If you post the signed mandate to my doctor on Friday he will not receive it until Monday.
If he receives it on Monday it is highly unlikely that he will be able to have my entire medical records (several hundred pages) copied and posted on the same day and even if he could you would not receive the records until Tuesday, which is the day of my appointment. The records would then, of course, be with you in London rather than with Dr. El Assra in Chester.
Even if you could somehow ensure that medical records received by you in London on Tuesday reach Dr. El Assra in Chester before 9.30 a.m. (the time of my appointment) he would not have time to read them properly and this might prejudice any examination. It would certainly be unsafe in a legal sense to proceed with an examination without having properly considered my medical records.
It is clear that your failure to comply with the court order of 18/5 has resulted in this state of affairs.
Had this been the only breach by you of court orders in this case I might have been prepared to accept that what has occurred has merely resulted from your incompetence.
However, since you also failed to comply with the order of 18/5 in respect of disclosure and you also failed to lodge your defence in time and you also failed to comply with the previous court order relating to disclosure (meaning that you have failed to comply with EVERY important time limit in this case), I can only conclude that you are deliberately obstructing the course of justice (which constitutes professional misconduct).
I have therefore applied to the court to have your defence struck out, partly on the basis that since District Judge Morgan threatened that my case would be struck out if I did not comply with his order of 18/5, it is only fair and proper that he should so the same to you.
I will destroy the second cheque that you sent to me.'
- In an E-Mail dated 23 July 2010 David Armstrong wrote to me as follows:
'The mandate was sent to you by email on 25 May 2010 [note that in his letter of 20 July 2010 he said that the E-Mail was sent on 20 May 2010, not 25 May 2010] and on 5 November 2009 as well as by post on 21 July. It has still not been returned.
We have provided Dr. El Assra with background information regarding the claim and copies of the pleadings. It is not uncommon for a medical expert to conduct the appointment and prepare the report once the records are received. We attach a letter from Dr El Assra confirming the same and that he is prepared to proceed with the appointment. The examination will not be prejudiced nor will it be legally unsafe.
On two occasions you have now declined to attend the medical appointments we have arranged. If you do not attend on Tuesday then we will have no option but to apply for a stay of the action.'
- In an E-Mail dated 23 July 2010 I replied to David Armstrong as follows:
'1. With regard to Dr. El Assra's letter, the court ordered the medical records to be made available BEFORE the medical examination. This was done for a reason, which was clearly that the medical expert should be able to examine those records BEFORE any examination. I am not prepared to go against this ruling on your or Dr. El Assra's authority. I note that Dr. El Assra says that it is normal to write a report after an examination; he did not say that it is normal to have access to medical records only after an examination. Of course, to suggest such a thing would be a nonsense since the questions asked by a psychiatrist will inevitably be guided, to a large extent, by what he reads in the medical records. Your suggestion that medical practitioners are happy to examine patients without having seen their medical records is simply ridiculous and I am amazed that Dr. El Assra should support such an idea. It would clearly be unsafe to proceed with a medical examination without having read my medical records since there will unquestionably be matters contained in those medical records that Dr. El Assra would want to raise with me. This is undeniable.
2. I also believe that you are attempting to force me to attend an examination on the basis that this would amount to some sort of de facto acceptance on my part of your breach of the order. I am not prepared to do anything that might be interpreted in that way.
3. With regard to the mandate:
a. It is, as you know, irrelevant that you sent me a mandate in November 2009 because the court ordered you to send me a fresh mandate on 18/5.
b. The fact that you sent me a mandate on 21/7 is also irrelevant. You are still in breach of the order and it was, as I have explained, not possible for my records to get to Dr. El Assra in time for the appointment.
c. My E-Mail address changed in 2009. Between 5/1/2010 and 12/3/2010 I sent you 15 E-Mails from my new E-Mail address. This is sufficient notice of a change of address.
d. If you had sent an E-Mail to my old E-Mail address on 25/5 (which would still have been in breach of the court order) you would have received an immediate delivery failure notification from my old service provider addressed to your personal E-Mail address (they confirmed this to me in a taped telephone conversation today). Had you received such an E-Mail you would, of course, have sent a new E-Mail to my new E-Mail address. The fact that you did not do so (I keep all my E-Mails) leads me to conclude that you did not send any E-Mail on 25/5. I request that you forward me a full copy of your E-Mail of 25/5 with the appropriate time/date stamps and all the message headers.
e. In any event, you are still in breach of the order with respect to disclosure and my application to the court to strike out the defence would proceed on that basis regardless. I note that you have steered away from mentioning your breach of the order in this respect. As I said, at the hearing District Judge Morgan threatened that he would strike out my case if I did not comply with his order so it is only equitable that he should do the same to you; in fact more so since you are a firm of solicitors.'
- By an order dated 5 August 2010 DJ Morgan ordered my application to be heard by way of telephone conference on 26 August 2010.
- In an E-Mail dated 8 August 2010 I wrote to David Armstrong and repeated my request of 23 July 2010 that he send me copies of the E-Mails of 20 May 2010 (from him to me) and of 27 May 2010 (from me to him) and I also asked for a copy of the E-Mail of 25 May 2010 that he referred to in his E-Mail of 23 July 2010.
- On 19 August 2010 I sent a reminder E-Mail to David Armstrong.
- In an E-Mail dated 20 August 2010 David Armstrong wrote to me as follows:
'We will forward to you copies of the email of 20 May with screen prints of the properties confirming the address to which it was sent. To confirm, the email was sent to your new email address on Thursday 20 May at 09.37, not on 25 May.'
- In an E-Mail dated 20 August 2010 I wrote to David Armstrong as follows:
'I would point out:
1. Even if you did send me an E-Mail on 20/5/2010, which I do not accept (and I have made a Data Protection Act request to BT to obtain their E-Mail logs), you were still under a duty, given the circumstances, to follow up your E-Mail in the absence of a reply from me. This you failed to do until it was too late to obtain my medical records before the appointment.
2. The court order specifically refers to me signing and returning a document and it is quite clear on this basis that you should have sent me a paper document, not an E-Mail. You were in breach of the order in not doing this. Given that you chose to ignore the order in this regard it was even more important for you to take steps to ensure that I actually received your E-Mail (if you sent it).'
- In an E-Mail dated 23 August 2010 I wrote to David Armstrong reminding him that he had said in his E-Mail to me of 20 August 2010 that he would send me a copy of his E-Mail to me of 20 May 2010.
- On 24 August 2010 I served my witness statement from my doctor (due by 27 August 2010).
- On 25 August 2010 I sent a further reminder to David Armstrong.
- On 25 August 2010 David Armstrong sent me a witness statement (done by him) relating to the hearing on the following day, together with a screen capture of his E-Mail of 20 May 2010. I received this after 18.00 hours. Note that I had been asking for a copy of his E-Mail of 20 May 2010 since 23 July 2010, so he had delayed sending it for over a month.
- In an E-mail dated 25 August 2010 I sent a screen capture to the court and an explanation which said:
'The attachment shows a screen capture of an E-Mail dated 24/8 but actually sent on 25/8. This was achieved by changing the system date from 25/8 to 24/8, sending an E-Mail (which then has the date 24/8) and then changing the system date back to 25/8. This demonstrates that it is a simple matter to send an E-Mail with a given date simply by altering the system date on your PC by clicking on the clock on the bottom right-hand corner of your screen. In other words, it is easy to make the date of an E-Mail any date you like, so the screen capture submitted by D Armstrong in his witness statement proves precisely nothing.'
This explanation did not reach DJ Morgan. He only received the screen capture, which he complained was 'meaningless', as indeed it was without the explanation. He did not seem at all concerned that a document that I had submitted to the court (and which I clearly considered to be important to my case) did not reach the court.
- The hearing was held on 26 August 2010. It is worth noting that when I tried to make an application for a court order during the hearing (to make BT release details of my own E-Mails during May 2010), he refused on the basis that an application can only be made with notice (to the party against whom the order is to be made). This is untrue, as he well knew, since CPR 23.4 specifically allows a court to make an order without notice (see my letter to him of 31 August 2010 below). So, another lie (see my notes on the hearing of 18 May 2010 above).
- In an E-Mail dated 28 August 2010 I wrote to DJ Morgan as follows:
'At the hearing last Thursday you considered the question of whether the defendants had complied with your order to send me a mandate for the release of my medical records. Mr. Armstrong claimed that he had sent me an E-Mail and, in spite of cogent evidence from me that I had not received his E-Mail, you concluded that he had sent the E-Mail (I would add that Mr. Platt said that he was doing no more in argument than 'suggesting' that Mr. Armstrong had sent the E-Mail and was 'not putting the matter any higher than that'. You turned this suggestion into a positive conclusion.) The point is that the defendants were required to serve a document on me and serving a document is not the same as sending a document. In the first place, service of an E-Mail takes place on receipt, so if I did not receive the E-Mail then it was not served on me - and it was incumbent on Mr. Armstrong to check that the E-Mail had been received, which he did not do. In the second place, a serving party requires specific approval from the receiving party to serve a document on the receiving party in the form of an E-Mail (PD6A). No such permission was sought or granted and your order did not give the defendants permission to serve the mandate by E-Mail.
It appears therefore that your conclusion that Mr. Armstrong did send the E-Mail was a red herring, since even if he did so that does not mean that he complied with your order. What I find worrying is that both you and Mr. Platt failed to mention the matters I raise above in spite of the fact that you both have a duty to do so. Mr. Platt, as a barrister, has a specific duty to draw the courts attention to matters that are disadvantageous to his side. He is therefore in breach of barristers' rules of professional conduct - but, then again, I am sure you knew that already.
I am writing in accordance with para. 15.5.1 of 'Civil Litigation in Practice' (Northumbria Law Press, 6th Ed., 2006) which states 'Where the Court has made an interim order the party should initially apply to the original court if they want the original decision to be reconsidered.''
- In an E-Mail dated 29 August 2010 I wrote to David Armstrong as follows:
'With reference to the question of whether you complied with the order in sending me a mandate by E-Mail it appears that a serving party requires specific approval from the receiving party to serve a document on the receiving party in the form of an E-Mail (PD6A 4.1). No such permission was sought or granted and the order did not give you permission to serve the mandate by E-Mail. On this basis you failed to comply with the order even if you did actually send the mandate by E-Mail and it appears that DJ Morgan was wrong not to take this factor into account in the hearing on Thursday. All the arguments and evidence put forward on the question of whether you sent your E-Mail of 20/5 were therefore completely irrelevant. I will be grateful if you would confirm that my interpretation of PD6 is correct and whether you will agree to a mutual approach (application) to DJ Morgan to ask for a re-hearing or further hearing to address this issue. It seems that DJ Morgan, Mr. Platt and yourself are all unaware of the requirements of PD6 even though our previous correspondence on the service of the particulars of claim by E-Mail shows quite clearly that you are aware of those requirements.'
- In an E-Mail dated 29 August 2010 I wrote to DJ Morgan as follows:
'Further to my E-Mail below I ask DJ Morgan to revoke his order under CPR 3.1(7).
Note: It seems that service by E-Mail is effected on sending (rather than receipt as I say below) but that still leaves the fact that service should not have been by E-Mail in the first place without my agreement, that there was therefore no valid service of the mandate and that the defendants were in breach of the order in this regard.'
- In an E-Mail dated 31 August 2010 I wrote to DJ Morgan as follows:
'During the telephone hearing on 26/8/2010 I made a verbal application for an order ordering British Telecom to release to me details of E-Mails sent and received through my E-Mail account with them during May 2010. You refused this application on the basis that an application had to be made with notice. I said that this was not the case. Having looked into the matter it appears that I was correct and that an application can be made without notice under CPR 23.3 which states:
'An applicant may make an application without filing an application notice if –
(a) this is permitted by a rule or practice direction; or
(b) the court dispenses with the requirement for an application notice.'Further CPR 23.4 states:
'An application may be made without serving a copy of the application notice if this is permitted by –
(a) a rule;
(b) a practice direction; or
(c) a court order.'You were therefore wrong to say that I could only make an application with notice. The application I made at the telephone hearing therefore was valid and still stands and I request that you deal with that application by making an order as it is within your power to do. If necessary I ask you to vary or revoke your order relating to the hearing on 26/8/2010 under CPR 3.1(7).'
- In an E-Mail dated 31 August 2010 I wrote to DJ Morgan as follows:
'I am writing with reference to the telephone hearing on 26/8/2010. During that hearing you considered the question of whether Mr. Armstrong had sent a mandate for release of my medical records by E-Mail. Mr. Armstrong submitted evidence that appeared to show that he had sent an E-Mail from his PC on the date he claimed. Having heard the evidence you concluded that Mr. Armstrong did send the E-Mail. However, it occurs to me that the word 'send' in the context of service of documents means 'delivery to a service provider', which would mean that Mr. Armstrong did not send the E-Mail unless that E-Mail was delivered to his service provider. By analogy, one can say that it is not sufficient to write a letter, put it in an envelope, address the envelope, put a stamp on it and walk out of your front door towards the postbox; 'sending' is only achieved when the letter has actually been put into the postbox, that is delivered to the service provider. You took no evidence on the question of whether Mr. Armstrong's E-Mail was actually delivered to his service provider. As far as the court knows the E-Mail never left Mr. Armstrong's office building. If this is the case then how can it possibly be said that the E-Mail was sent. I believe that both you and Mr. Platt should have been aware that the sending of a document only takes place on delivery to a service provider and you should have brought the matter up at the hearing. After all, you were quite happy to state the law relating to making an application (erroneously as it turns out), so what was there to prevent you from stating the law relating to the sending of documents? And if you were aware of the law, as presumably you were, were you not under a duty to disclose it. Mr. Platt was certainly under a duty to mention relevant law which was prejudicial to his arguments. Once again, the judge, barrister and solicitor involved in the hearing have failed to disclose the law (which they appear to have been aware of) and it has been left to me to deal with the matter post event. In the circumstances I would ask you to revoke or vary your order accordingly.'
- In a letter dated 2 September 2010 I received the order of DJ Morgan relating to the hearing on 26 August 2010 as follows:
'1) The Claimant's application to strike out the Defendant's statement of case and for an order for summary judgment is dismissed.
2) The time for the Defendant to comply with paragraph 1 b) [he means 1 a)] of the order of 18 May 2010 is extended to 4pm 3 September 2010.
3) The Claimant shall sign a release of his medical records to the Defendant, such release to be forwarded by the Defendant by 4pm 3 September 2010, to be returned signed by the Claimant by 4pm 10 September 2010.
4) Further directions stand adjourned (including further timetabling of the matters referred to in the Order of 18 May 2010) to the next available date after 7 September 2010 with a time estimate of one and a half hours listed before District Judge Morgan. The hearing shall be conducted by telephone. The Defendant shall make the necessary arrangements in accordance with the Practice Direction to Part 23 of the Civil Procedure Rules.
5) At least three working days before the hearing the Defendant shall send to the court and the Claimant draft directions which the Defendant shall endeavour to agree with the Claimant.
6) Costs in the case.'
- I appealed against DJ Morgan's order as described below. Note that the appeal described in the next section is against an earlier order of DJ Jackson, so I started two appeals, one after the other.
- On 16 August 2010 I appealed against DJ Jackson's court order of 20 May 2009 refusing my application for default judgment. The basis of my appeal was that I was automatically entitled (on application) to default judgment, as proved by the High Court case of Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm) cited above (which was binding on DJ Jackson), CPR12.11(1) quoted above and the HMRC's (the taxman's) own manual, quoted above. Essentially, I was saying that it is a well-known rule that a claimant is automatically entitled (on application) to default judgment on the failure of the defence to file a defence (the document) within the relevant time limit and that DJ Jackson had therefore deliberately acted in an unlawful manner in denying me default judgment. It was also clear that the defence's solicitor, David Armstrong, and barrister, David Platt, had effectively colluded with DJ Jackson in this unlawful act (the idea that these people are not familiar with this basic procedural rule is simply preposterous). On the basis that the court had deliberately denied and concealed from me my right to default judgment, it was clear that the normal time limit for appealing should be set aside, as the court has a discretion to do under CPR 3.1(2)(a) which allows the court ‘to extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).’
- At the time I put forward these arguments I was unaware that DJ Jackson had not seen my application for default judgment until after he had granted the defence an extension of time to lodge a defence (the document). Nonetheless, even though the judge was (apparently) not aware of my application, it was a fact that the court (as opposed to the judge) had received my application for default judgment before it (the court) granted (or tried to grant - the order was never issued) an extension of time to the defence. Under CPR 12.11(1) I was entitled to default judgment because when my application for default judgment was received by the court no defence had been lodged by the defence and extension of time to lodge a defence had not been granted. As I have pointed out above, the order refusing to grant my application for default judgment was seriously wrong in a number of ways; (1) the court never issued an order granting an extension of time, (2) the court had no authority to grant an extension of time, (3) the court only granted an extension of time as a result of deliberate obstruction by court staff and (4) I was denied an opportunity to challenge the order granting an extension of time.
- By an order dated 8 September 2010 HHJ Walton refused my appeal as being 'wholly without merit (The application is grossly out of time without adequate reasons for the delay and in any event without merit given the discretionary nature of the District Judge's decision).' In accordance with CPR I was given 7 days to apply to have the order set aside, varied or stayed.
- What is worrying about HHJ Walton's judgment is that he is perfectly well aware of the matters I have explained above (not least because I fully explained them in my grounds of appeal and skeleton arguments) but, rather than do what he knows to be right, he decided to protect a fellow judge, and the defence barrister (a fellow 'professional'), and dismiss my appeal to the basis that it was 'totally without merit'. The worrying bit is that he did this in full confidence that he would not be held to account.
- In an application dated (and posted) 13 September 2010 I applied to have HHJ Walton's order of 8 September 2010 set aside.
- In a letter dated 21 September 2010 John Robins of the Listing Section returned my Application Notice and Fee Remission Application Form because my proof of income (that I am in receipt of Jobseeker's Allowance) was returned to me on 2 September 2010.
- In a letter dated 30 September 2010 I re-sent my application and fee remission application (with further proof) to the court and wrote as follows:
'I am writing further to my telephone conversation of 30/9 with Mark, the Civil Listing Section Manager, and, on his advice, am enclosing the documents you returned to me in a letter dated 21/9.
Unfortunately, the mix-up over the fee remission application means that my application is now out of date, although it was originally sent on 7/9/2010 [this should say 13 September 2010 - 7 September 2010 was the date I sent in my appeal against DJ Morgan's order of 26 August 2010], within 7 days of the court order as required. I would point out that the court did not deal with my fee remission application within 5 working days, as stated on p. 15 of the guidance notes for the EX160, and that I have been away from home (taking my son to university) and only returned on 27/9/2010. I have therefore dealt with this matter as quickly as I can.
The problem arose because you actually had two applications from me when I sent in a third. You returned the entitlement letter for one of the first two applications in a letter dated 2/9, which meant that it was not in your hands when you received my third application (sent 7/9); you returned the entitlement letter for the second of the first two applications in a letter dated 28/9. This means that when you received my third application you were in possession of an in-date entitlements letter, the one you returned in the letter dated 28/9. I referred you to this entitlements letter in my fee remission application of 7/9.
I would point out:
1. that, as required by the EX160 guidance notes, I did provide you with proof of entitlement to Jobseeker’s Allowance and that this proof was in date at the time you received the forms.
2. that, contrary to what your letter of 21/9 says, you were in possession of an original in-date entitlement letter when you received and processed my application since you returned that letter to me in your letter dated 28/9.
I enclose a letter dated 9/9 which confirms that I was on JSA at that date.'
- By an order dated 15 November 2010, following a hearing on 12 November, HHJ Walton dismissed my application for permission to appeal as being 'totally without merit' and he imposed a limited Civil Restraint Order (CRO) on me. This prevents me making any applications to the court without the prior approval of a judge and paying the court fee, even if I would be otherwise exempt. Although the fee can be reclaimed the effect of such an order on someone who cannot afford to pay the court fee is to deprive them of access to the courts. If you read the order and judgment a number of things become clear:
1. You will note that the judge dismissed an application for permission to appeal but, in fact, my application had been to set aside the judge's previous order refusing me permission to appeal. It is clear therefore that the judge did not deal with the actual application that I made and that he 'dealt with' an application that I didn't make. This also means, of course, that one of the applications that the judge used to impose a Civil Restraint Order on me (see below) was actually non-existent!
2. The court staff withheld my application for default judgment from the judge so that he was not aware of my application at the time he considered the defendant's application for an extension of time. This meant that the judge should have considered two opposing applications but only considered one, the defendant's. The conduct by the court staff in withholding my application amounts to obstruction of the course of justice (I have a recording of a telephone conversation that proves that the obstruction was intentional) and even if mistaken as opposed to deliberate would be sufficient grounds for appeal.
3. The judge said that the withholding of my application had no bearing on the result but this is a lie; the Civil Procedures Rules and decisions of higher courts (which are binding on the judge) make it quite clear that I was entitled to default judgment, so had the judge seen my application at the right time he would have been bound by the court rules (CPR) to grant me default judgment. The judge says that the defendants would inevitably have been allowed to defend the claim (i.e. that had I been granted default judgment that any request by the defendants to set aside default judgment would have been granted) but the defendant would have had to have satisfied the court that they had a reasonable prospect of defending the claim and the judge was not entitled to assume that they would have been able to do this. If one can always assume that a defendant will be able to establish that they have a reasonable chance of defending the claim, what is the point of requiring them to prove it in the first place?
4. The judge drafted an order allowing the defendant an extension of time but that order was never issued. Regardless of what the judge intended to do, the fact remains that an order granting the defendant an extension of time was never issued - so no extension of time was ever granted. This is a serious procedural irregularity and for a judge (HHJ Walton) to pretend that it does not matter is beyond belief. Put simply, if the court did not issue an order then no order was made. How simple does it have to be? Clearly, the court only attempted to grant an extension of time because it was necessary to do so in order to allow the court to accept the late submission of the defence, so the failure to actually grant an extension of time means that the acceptance of the late defence was unlawful.
5. The judge said that there was 'no evidence that someone purposely delayed the Claimant's application'. This is a lie because the judge knew that I recorded two telephone conversations during which court staff had told me that they would withhold my application from the judge until he had considered the defendant's application.
6. Having lied twice, at least, and ignored the deliberate obstruction of justice by the court staff, as well as the critical failure to issue an order - what one could justifiably call a catalogue of lies, incompetence and outright criminality on the part of the court and its staff, the judge then proceeded to issue a limited Civil Restraint Order (CRO) against me. His motive in doing this was clear; it was to stop me bringing to light such lies, incompetence and criminality, which of course made him a liar and a criminal into the bargain.
7. But there is more, the judge ought to have but failed (quite deliberately) to give me an opportunity to make representations to the court as to why a CRO should not be imposed on me, even thought bound to do so by a ruling of the High Court. Further, he failed to give any proper reasons for imposing the CRO, merely saying 'the rules require me to consider whether a civil restraint order should be made. I consider it should. I am concerned that the claimant is not mindful of his own duty to help the court use its resources proportionately in dealing with the claim.' So why was he concerned about me wasting the court's time but not about the serious procedural irregularities and outright criminality that gave rise to my application in the first place?
8. Further, in his order the judge said that I had no right of appeal against his refusal to grant me permission to appeal. This is a lie because the Civil Procedure Rules (CPR 52 and PD 52) state quite clearly that I had a right of appeal to the High Court. (CPR 52.3(3) states: ‘Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court’). So the judge slapped an unlawful Civil Restraint Order on me and then lied to prevent me appealing against his decision to refuse me permission to appeal.
9. Further, in order to issue a CRO a party must have made at least two applications deemed to have been totally without merit, but the two applications in my case were an application to appeal and a renewal of that application (according to the judge, but actually an application to set aside the order refusing that application - see above); in other words, in essence only one application. Further, I only renewed my application because the judge who issued the CRO against me, who was the same judge (HHJ Walton), did this without giving reasons, which is unlawful, and it was only the unlawfulness of the order that prompted me to seek to overturn that order!
10. In short, it is clear that HHJ Walton set me up. Quite literally. He rejected my application unlawfully, knowing that I was bound to challenge it and then used that challenge as the basis for issuing a CRO against me, which he also did unlawfully because he gave me no opportunity to make representations. He then lied about my right of appeal against his order refusing me permission to appeal by saying that I had no right to appeal against it.
11. HHJ Walton is quite simply a criminal in a wig.16. The defendants' disclosure list
- By a letter dated 3 September 2010 David Armstrong sent me the defendants' disclosure list.
- In an E-Mail dated 9 September 2010 I wrote to David Armstrong as follows:
'1. At the hearing on 18/5 DJ Morgan said that the effect of making an appeal was to suspend any outstanding orders. On that occasion he was referring to my appeal against the order of DJ Jackson having the effect of suspending the order for you to make standard disclosure as per DJ Jackson's order. On this basis it is my understanding that my appeal against DJ Morgan's order of 26/8 (together with my appeal against DJ Jackson's order of 20/5/2009) has the effect of suspending DJ Morgan's order of 16/8. This means that I am not required to sign and return the mandate. If your understanding of the situation is different please let me know. If you do not reply on this point I will assume you agree.
2. I have read your standard disclosure statement. My conclusion is that it is, and is intended to be, highly misleading and is incorrect/incomplete in a number of significant ways.
3. The Annex to PD 31 shows a pro-forma disclosure statement which starts: 'I, the above named claimant [or defendant] [if party making disclosure is a company, firm or other organisation identify here who the person making the disclosure statement is and why he is the appropriate person to make it] state...'. The meaning here is quite clearly that the statement must be signed by either the claimant or by the defendant (only these are referred to) and not the legal representative of either. The reference to 'a company, firm or other organisation' means that where the claimant or defendant is one of these then an officer of that company, firm or organisation will necessarily have to sign the document. In 'Civil Litigation in Practice' (6th Ed., p. 189) is says 'Your client has a duty to make disclosure as ordered by the court..'. It is the duty of the client (claimant or defendant) to make disclosure and NOT the client's legal representative.
2. Your statement says that you are making disclosure 'on behalf of the Defendant's'. This is in the singular and so does not cover all the defendants. Even if you are allowed to sign this document it must be made clear that you are signing on behalf of all the defendants (plural). Nice try though.
3. You have omitted the actual signed compromise agreement from your list. I require disclosure of this document and all drafts and all internal or external correspondence relating to it, together will all internal or external correspondence relating to the decision to fire me in December 2003.
4. The disclosure list does not make it clear whether you have searched the personal paper and electronic documents, including E-Mails, of all the individual defendants. I require the search to cover these.
5. The word 'E-Mail' on its own in your statement is meaningless. Which E-Mail depositories were searched and what were the parameters in terms of search terms, dates and so on? The statement says that you carried out the search personally. I don't believe you. When, where and how did you carry out the search? You will note that the form says 'list what was searched and extent of search'. You have patently failed to do this, which means that the form is invalid.
6. With regard to the section on PCs, databases and so on, you have not ticked the box saying that you did not search any of these things, so that the extent of your search should be disclosed in the box your have written 'E-Mail'.
7. The fact that you say 'E-Mail' necessarily means that you did not search for anything other than E-Mail. How can this be adequate? How can you say that you searched only 'E-Mail' and then leave the box unticked which means that you searched, inter alia, for spreadsheet and document files? The word 'E-Mail' means that you have not searched for any electronic documents other than E-Mail and have not searched through physical documents at all.
8. You claim privilege in respect of communications with insurers. As far as I am aware these are not subject to privilege since privilege is restricted to legal advice privilege (communications between a solicitor and his client) and litigation privilege (only covers communications between the client/solicitor and third parties after litigation is commenced or contemplated with a view to the legal advisor considering such information). Any communications with insurers not taking place either after litigation commenced or in contemplation of litigation are not covered by privilege. You are required to list such documents not covered by privilege.
9. It appears to me therefore that your statement is highly misleading and also incomplete and probably invalid. Clearly, I wish to resolve this matter without having to obtain a court order and look forward to your response.'
- In an E-Mail dated 9 September 2010 I wrote to David Armstrong to say that 'under CPR 31.10 you must list the items that you are not disclosing unless I agree otherwise in writing under CPR 31.10(8)(a).'
- In an E-Mail dated 9 September 2010 I wrote to David Armstrong to say that 'Since the form you sent me is based on a pro-forma which actually states 'List and number here...' in relation to documents which you object to me inspecting, it is clear that you have deliberately not complied with the requirement to list the documents (i.e. the requirement to list was staring you in the face when you filled in the form). You have therefore deliberately not included in the disclosure statement details of documents which you knew were required. This means that you have made a false disclosure statement knowing it to be untrue under CPR 31.23.'
- In an E-Mail dated 9 September 2010 I wrote to David Armstrong as follows:
'Item 35 refers to a statement made to the police which was passed to Pauline Sears. Can you please provide a copy of this document, together with a copy of the results of Pauline Sears investigation and any related documentation.
Item 63 in your disclosure list refers to a full consultation with Group HR and Group Legal. Could you please let me have copies of all the relevant documents.
Item 82 is signed by a T Davies. Can you please provide me with copies of the documents which show that she had the authority to sign the agreement on behalf of the bank at that time.'
- In an E-Mail dated 9 September 2010 I wrote to David Armstrong as follows:
'With reference to the client personally signing the disclosure statement, 'A Practical Approach to Civil Procedure', Stuart Sime, 9th Ed., p. 309, refers to the client 'personally signing a disclosure statement'. This makes it quite clear that ALL the defendants must sign the disclosure statement. Page 314 says that the statement 'has to be signed by the party in person, not by their solicitor'.'
- In an E-Mail dated 9 September 2010 I wrote to David Armstrong as follows:
'With reference to disclosure being limited to documents relevant to the preliminary issue, I would remind you that DJ Morgan said at the hearing on 26/8 that 'relevant' means (and I quote him) 'what is relevant in the minds of the parties' (010506).'
- David Armstrong did not reply to my correspondence and the issue of disclosure was not raised until the case management conference held on 15 February 2011.
17. Appeal against DJ Morgan's order of 26 August 2010 - hearing held on 9 December 2010
- On 7 September 2010 I appealed against DJ Morgan's order of 26 August 2010. The key grounds of appeal were:
1. With regard to the mandate for releasing my medical records, that not only had David Armstrong not sent me the mandate by E-Mail on 20 May 2010 as he claimed but, even if he had, under CPR service by E-Mail was invalid without my permission. Both DJ Morgan and David Platt somehow 'overlooked' this point (and it meant that all the time spent during the hearing arguing about whether David Armstrong had or had not sent the mandate to me by E-Mail was completely wasted - but they kept silent).
2. With regard to disclosure, that the reasons given by David Armstrong in his witness statement for failing to send the disclosure list by the date specified in the order of 18 May 2010 were illegitimate, particularly in view of the fact that the disclosure list he subsequently sent to me consisted of a list of less than 100 items covering 2 sides of A4 (bearing in mind that they had had nearly 2 years to prepare this disclosure list), but that DJ Morgan far from penalizing the defence for their failure to make standard disclosure by the date specified in the order (for a second time I might add) simply granted them a further extension of time.
3. That David Armstrong had demonstrably lied twice in his witness statement* (even ignoring his claim to have sent me the mandate by E-Mail on 20 May 2010), as I had established during the hearing, and that he had done this with the intention of influencing the court against me. DJ Morgan had completely ignored this serious issue in his summing up.
4. With regard to David Armstrong's claim that he had sent me a mandate for release of my medical records by E-Mail on 20 May 2010l, I pointed out that David Platt, the defence barrister, had said that he was merely 'suggesting' that David Armstrong had sent the E-Mail and was 'not putting it any higher than that'. DJ Jackson, in his summing up, had initially said he was ‘accepting the statement [that the E-Mail was sent] at this stage’. Later on in his summing up this was changed, unaccountably, to being that DJ Morgan was satisfied that Mr. Armstrong ‘did actually send the mandate’. Thus DJ Morgan took a suggestion of the defence and turned it into a certainty; he went beyond what even the defence was prepared to claim – and without giving any reasons for doing so.'
5. I referred to Anderton v Clwyd County Council [2002] EWCA Civ 933 at 36 where Mummery LJ said 'Procedural rules [which, I submit, include the requirement to comply with court orders] are necessary to achieve justice. Justice and proportionality require that there are firm procedural rules which should be observed, not that general rules should be construed to create exceptions and excuses whenever those, who could easily have complied with the rules, [my emphasis] have slipped up and mistakenly failed to do so.’ I said that the court is bound by this Court of Appeal ruling.
6. I also referred to Vernon v Spoudeas & Anor [2010] EWCA Civ 666 where LJ Jackson stated at 59: ‘There seems to be a perception amongst some members of the public and some members of the profession that orders made by the court can be breached with impunity. I do not share that view.’ I had submitted that the court was bound to attach due weight to these words of the Court of Appeal but that, in spite of this, DJ Morgan had simply granted the defence a further extension of time. I submitted that he was wrong to do so.*The first false statement is in para. 6 of David Armstrong’s witness statement where he says that in my E-Mail to him of 21/7/2010 I made no mention of not having received the mandate on 20/5/2010. I proved this was false by simply reading my E-Mail of 21/7/2010 in which I wrote ‘I have not signed a mandate because you have not sent me one to sign as per the order of 18/5. You have also failed to comply with the order in relation to disclosure’. I pointed out that David Armstrong would have had access to this E-Mail at his fingertips while preparing his witness statement. The second false statement is in para. 9 of David Armstrong’s witness statement where he wrote that I had ‘still not returned a completed mandate for the release of his records on numerous occasions since the commencement of proceedings’. In response to this I quoted to the court David Armstrong’s E-Mail to me of 5/1/2010 in which he said ‘We have received the mandates for release of your medical records and sent them to our appointed expert to make the necessary arrangements.’ Again, I pointed out that David Armstrong would have had access to this E-Mail at his fingertips while preparing his witness statement. These two false statements by David Armstrong were not minor, as claimed by David Platt, counsel for the defence, in an attempt to gloss over the matter. Solicitors do not make statements in witness statements that are unimportant; they make them for a purpose and because they consider them to be relevant to the case. Both of David Armstrong’s false statements were clearly designed to give the impression to the court that I was at fault in matters considered to be serious enough to bring to the attention of the court. They were designed to influence the court against me. They were intended to be prejudicial to my case. Having raised these matters by including them in the witness statement the defence cannot then claim that they are irrelevant and unimportant when they are proved to be wrong.
- On 7 September 2010 I wrote to David Armstrong as follows:
'In the context of my appeal against DJ Morgan's order of 2/9/2010 [order dated 26 August 2010] I would refer you to Bernuth Lines Ltd v High Seas Shipping Ltd [2005] EWHC 3020 (Comm) (21 December 2005) at 29: 'That is not to say that clicking on the "send" icon automatically amounts to good service. The e-mail must, of course, be despatched to what is, in fact, the e-mail address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt he may not be able to show that receipt has occurred.''
- On 8 September 2010 I wrote to the court as follows:
'It is generally accepted that, in any debate, one party will obtain an advantage over the other party from prior sight of the arguments of the other party which allows the first party, but not the other party, to frame their arguments taking into account the arguments of the other party. It is for this reason, I submit, that parties are required to exchange expert witness statements; it makes subsequent changes to statements subject to scrutiny as changes (i.e. it allows the question ’Why was there a change?’). If one party is effectively allowed to change its statement without notice (by allowing them, by taking into account the arguments of the other party before issuing their statement, to change their statement from what it would have been had they not had sight of the arguments of the other party) then the other party effectively loses the right to investigate why a change was made and challenge it accordingly. Earlier (non-final) versions of expert witness statements are subject to legal professional privilege so that the effect of making changes to a statement which would not have otherwise been made (i.e. they result from access to the expert witness statement of the other party) is to give those changes a legal professional privilege that they would not have otherwise had because had the other party’s expert witness statement been received after disclosure of the expert witness statement of the first party then changes to the first party’s statement would have had to have been disclosed.
The failure of the defence to comply with the order of 18/5/2010 has had a potentially fatal, or at least seriously prejudicial, effect on my case in that I have served my expert witness statement (by my doctor) on the defence in accordance with the order while the defence has not done the same (i.e. served their expert witness statement on me). This may allow the defence's expert witness to frame his opinion in a way that responds to matters raised by my expert witness in his statement while my expert witness has had no opportunity to do the same. It effectively allows the defence to change their statement without the disclosure or the scrutiny which would normally apply to changes to witness statements, as explained above. There is therefore a risk that the defence (by their own failure to comply with an order) have obtained an advantage that could be fatal, or at least seriously prejudicial, to my claim. I submit that, in justice, the court should not allow this to happen or even allow a risk that it might happen - that the defence might benefit as a result of their own misdemeanours or failures without good reason.'
- By an order dated 30 September 2010 HHJ Walton stayed DJ Morgan's order to 26 August 2010 and ordered a permission hearing to be held on 12 November 2010.
- Following a hearing on 9 Dec 2010 by an order dated 5 Jan 2011 HHJ Cartlidge refused me permission to appeal.
- With regard to the question of whether the defence had sent a mandate for the release of my medical records to me, HHJ Cartlidge noted that DJ Morgan had found that a mandate had been sent. But HHJ Cartidge entirely ignored the fact that even if a mandate was sent by E-Mail, which had not been established, a mandate had not been served on me in the legal sense (because I had not agreed to service by E-Mail - the defence have refused to allow me to serve documents on them by E-Mail) and it is service of a document that matters, not the actual receipt. Court rules concerning service of documents mean that a document can be received in a physical sense but not received in a legal sense, which means that, as far as the law is concerned, that document has not been received, but HHJ Cartlidge just brushed the Civil Proecdure Rules aside.
- With regard to the question of disclosure by the defence HHJ Cartlidge noted that the defence had failed to make standard disclosure as ordered but he also noted that DJ Morgan had found that I had made no attempt to consider the relevance of the documents I had disclosed. In fact DJ Morgan had said that a document is relevant if a party considers it to be relevant ('what is relevant in the minds of the parties' were his exact words), which means that because I considered the documents to be relevant they were relevant. The end result was therefore that I had made proper standard disclosure of relevant documents but the defence hadn't (bear in mind that they are so-called professionals while I am a litigant in person) and the judge still refused to order them to do what the rules require them to do.
- HHJ Cartlidge noted that I had applied for an 'unless order' (which is an order that a party's statement of case will be struck out if they do not comply with the order) but that DJ Morgan had failed to deal with my application. HHJ Cartlidge dismissed this as unimportant because their had been 'fault on both sides', which means that HHJ Cartlidge was saying, in effect, that it is quite acceptable for a court to fail or refuse to deal at all with an application; not to consider an application and then refuse it but to not deal with it at all. This is quite simply nonsense.
- I could not appeal against the order refusing me permission to appeal because HHJ Walton had imposed a limited Civil Restraint Order on me on 15 Nov 2010 and the effect of a CRO is that you have to pay court fees in advance (even if you would normally be exempt on the grounds of poverty) and I could not afford to pay the court fee for an appeal. This means that any appeal against HHJ Cartlidge's refusal of permission to appeal is effectively suspended until my application for a judicial review of the CRO is completed, but it appears that I can apply for a judicial review of HHJ Cartlidge's order on the grounds that, being effectively denied a right of appeal, I have no alternative remedy other than a judicial review.
18. Judicial review of Civil Restraint Order (CRO)
- On 25 Nov 2010 I applied to the High Court for a judicial review of the imposition of the CRO on me. There were two aspects:
1. I asked the court for a Declaration of Incompatability* under the Human Rights Act 1998 to the effect that the requirement to pay a court fee when one could not afford it was a breach of (i.e. incompatible with) my article 6 ECHR (European Convention on Human Rights) right to a fair trial and my article 13 ECHR right to a judicial remedy. I argued that to require someone to pay a court fee up front when they could not afford to do so denied that person access to the courts, even if they could subsequently reclaim that fee (it is no use being able to reclaim a fee if you cannot afford to pay it in the first place). I argued that not only was this restriction disproportionate it was also unnecessary because if a person is subject to a CRO any application they make has to be approved by a judge anyway.
2. I also asked the court to overturn the CRO on the grounds that it had been unlawfully imposed, partly because I had not been given an opportunity to make representations as to why a CRO should not be imposed, as I had an undoubted right to do**, and partly because the CRO was unlawful because it was based on an order that was itself unlawful (in that the judge had given no reasons for his decision, even though he was fully aware that he was required to do so). Normally one would appeal in such circumstances but of course I could not appeal because I could not afford to pay the court fee, and this meant that I had no alternative remedy; I had to apply for a judicial review.NB Because this application for permission to proceed with a judicial review was a new case the limited CRO did not apply to it, which meant that I did not have to pay the court fee up front, given that I was unemployed and on unemployment benefit.
*Broadly speaking, when a court makes a Declaration of Incompatability it makes a declaration that a certain provision of law is incompatible with the European Convention on Human Rights. The government then has to change the law.
**In Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) an Approved Supplemental Judgment was made which stated that 'The purpose of this short supplemental judgment is, therefore, simply to make it clear that no civil restraint order was in fact made. That is because it would not be right to make such an order without giving Mr. Smith's counsel the opportunity to make such representations as he wishes.' This decision is binding on a County Court.
- By an order dated 30 Nov 2010 HHJ Roger Kaye dismissed my application on the basis (1) that I had a route of appeal in respect of the Civil Restraint Order (completely ignoring the fact that I could not exercise that right of appeal because I could not afford the court fee i.e. that, in effect, I had no right of appeal) and (2) that I could reclaim any fee payable (completely ignoring the fact that there is no use in being able to reclaim a fee if you can't afford to pay it in the first place).
- On 6 Dec 2010 I sent a renewal notice asking for my application to be reconsidered at a hearing.
- At a hearing on 2 Mar 2011 HHJ Behrens granted me permission to proceed with that part of my application that related to my request for a Declaration of Incompatability in respect of the requirement that people subject to a CRO should pay court fees in advance (i.e. he accepted that there was an arguable case to the effect that someone who was required to pay a court fee and could not afford to do so was thereby denied a fair trial or access to a judicial remedy). He refused to listen to any arguments relating to my request that the CRO itself should be overturned.
- On 9 Mar 2011 I appealed to the Court of Appeal against HHJ Behren's refusal to consider any arguments relating to my request that the CRO should be overturned. I did this on the grounds that, while it is a principle that judicial review should not be used where an alternative remedy is available, I could not use the normal remedy (appealing against the CRO) in this case because I could not afford to pay the court fee up front. I said that it was contradictory for the judge to grant me permission to proceed with my application on the grounds that it was arguable that I was denied access to the court and, at the same time, to refuse to listen to that part of my application that arose precisely because I was denied such access.
- On 31 Mar 2011 I served sealed copies of the appellant's notices on the defendants; the Treasury Solicitor (on behalf of the Secretary of State for Justice) and the Newcastle-upon-Tyne County Court.
19. Case management conference of 15 February 2011
- A notice of hearing dated 5 January 2011 HHJ Walton ordered that a case management conference should be held on 15 February 2011. The notice ordered the defence to serve a case summary and draft order by 4 p.m. on the day before.
- The defence failed to serve a case summary as ordered (a case summary was sent by E-Mail to me at 6 p.m. the day before the hearing) and failed to serve a draft order at all.
- Nonetheless DJ Morgan allowed (in fact invited) the defence to apply for an order at the hearing and granted that order (ordering me to attend a medical on 29 Mar 2011) but he refused to allow me to apply for an order ordering the defence to make proper standard disclosure, as they had already twice been ordered to do. He even refused to consider my application for an order (which you are allowed to make under court rules) without asking the defence whether they had any objection either to me making an application for an order or whether they objected to the proposed order itself.
- DJ Morgan then ordered (1) that I should sign a mandate for the release of my medical records by 28 Feb 2011, (2) that I should attend a medical by a Dr. Fry on 29 Mar 2011, (3) that Dr. Fry should serve his report by 15 April 2011, (4) that I should submit any written questions on the report by 6 May 2011, (5) that those questions should be answered by 27 May 2011 and (6) that a hearing for directions should be held on the first available date after 20 Jun 2011.
- In the first place it should be noted that the order that I attend a medical was unlawful because a court has no power to do such a thing (on the grounds that it is an invasion of privacy). The correct procedure is for the court to grant permission for one side to instruct a medical expert and then for the court to stay the claim if the claimant refuses to attend a medical. This was the second time that a judge in this case had unlawfully ordered me to attend a medical.
- In the second place DJ Morgan refused to allow me to raise the question of whether the appointed medical expert had any qualifications or experience in the area; that is in the area of identifying whether a person was acting under duress at a point in time some 7 years previously. He simply replied that the defence had been given permission to instruct an expert and that was that. He refused to deal with my point that the expert had to have relevant qualifications and experience, that the defence had not demonstrated that their expert did have relevant qualifictions and experience and that it was pointless to carry out a medical examination with the purpose of identifying whether a person was acting under duress at a point in time some 7 years ago if the appointed medical expert had no qualifications or experience in this area. It is a fair point after all, given that very few psychiatrists, if any, will have ever been called upon to do such a thing (it is one thing to assess whether a person is suffering from work related stress at the time they are examined, it is an entirely different thing to assess whether a person was acting under duress at a point in time - literally a moment, the moment of signing a document - some 7 years previously).
- Dr. Fry cancelled my appointment with him and another appointment was made with a Dr. El Assra, who also cancelled his appointment on 29 Mar 2011.
37. Legal action against the Parliamentary Ombudsman (Top of page)
Section summary: Previous summary The background to my legal action against the Parliamentary Ombudsman (PO) can be found at http://www.happywarrior.org/widows/widows03.htm#19.
Broadly speaking, I complained to the PO about the FSA's supervision of the £1.5 billion GAR (Guaranteed Annuity Rate) liabilities of Scottish Widows before and during the demutualisation of that company (sale to Lloyds TSB) in 2000. The PO claimed that my complaint was outside her jurisdiction, which was patently untrue because at that very time she was in the middle of an investigation into the FSA's supervision of the GAR liabilities of Equitable Life during the same period. In other words the same time frame (1999-2000), the same matter (GAR liabilities of about £1.5 billion in each case) and two similar companies (two large life companies i.e. Scottish Widows and Equitable Life). Throughout the stages of my application for a judicial review of the PO's refusal to investigate my complaint, the PO tried to obfuscate the issue by arguing (falsely) that my complaint concerned the sending out of a particular document (being the policyholder circular of Nov 1999 seeking policyholder approval of the demtualisation scheme) and that this was outside her jurisdiction (being a 'conduct of business' regulation matter as opposed to a 'prudential regulation' matter - which it wasn't in any event, as explained below). It is a measure of the contempt with which the courts treat litigants in person that four different judges (considering my application on the papers, renewal of that application at a hearing, application to the Court of Appeal for permission to appeal on the papers and hearing following refusal of permission to appeal on the papers) accepted this argument in spite of the fact that it was a complete and obvious red herring. In fact I eventually came to the conclusion that judges often don't even bother to read arguments prepared by litigants in person (revealingly under PD 5.9(3) litigants in person are not required to submit what are called skeleton arguments when they appeal or apply for permission to appeal) and that they just read the papers prepared by the judge and the lawyers for the other side. But the judges just shot themselves (or rather the rest of us) in the foot because the failure of the judicial system to deal with the failure of the Parliamentary Ombudsman to deal with the failure of the FSA to properly regulate the financial sector (life companies in this case) meant that the opportunity to turn the FSA into a robust and effective regulator (as opposed to being a regulator which was, as Lord Turner later admitted, 'unfit for purpose') was missed - yet again. And it was the ineffectiveness of the FSA's regulation of the banks that was a prime cause (the prime cause some would argue) of the global banking crisis and the subsequent global financial crisis (the UK led the pack in the race to deregulate, described as a 'race to the bottom', and was thus the prime mover in the whole business). Whoops! Oh well, one day judges might learn the lesson 'What a tangled web we weave, when first we practice to deceive...'. Perhaps? Maybe? Pretty please?
It is worth noting further that the attempts by the judiciary and the Parliamentary Omudsman to shield the FSA from proper scrutiny have, in the end, come to nothing. The failure of the FSA's regulatory supervision of UK banks was exposed by the banking crisis as being so outrageously (and intentionally) lax, ineffectual and worthless that it became self-evident that the continued existence of the FSA was not only pointless, meaningless and downright embarassing but positively damaging to the implementation of an effective regulatory regime in the UK. The FSA is to be abolished and, one hopes, the ground on which it stood sown with salt. Good riddance to bad rubbish - and not just bad rubbish but a stinking cesspit of corruption. Remember that this is the organisation that Lord Turner described as 'not fit for purpose' and which the Parliamentary Ombudsman found had 'actively misled' Equitable Life's policyholders. What sort of regulator is it that deliberately misleads the very people it is supposed to protect?
Section detail:
- On 22 May 2005 I served on the Parliamentary Ombudsman an application for permission to proceed with a judicial review and bundle.
- On 24 Jun 2009 I received an aknowledgement of service and summary grounds for contesting the claim from Beachcroft LLP.
- By an order dated 1 Jul 2009 the High Court (His Honour Judge Roger Kaye QC) dismissed my application on the papers.
- On 10 Jul 2009 I submitted a renewal application to the court.
- By an order dated 17 Aug 2009, following a telephone hearing, and judgment dated 8 Sep 2009 the High Court (His Honour Judge Simon Grenfell QC) dismissed my renewed application.
- On 28 Sep 2009 I appealed to the Court of Appeal.
- On 22 Oct 2009 I submitted my grounds of appeal and skeleton arguments.
- By an order dated 30 Mar 2010 the Court of Appeal (Lord Justice Sir Malcolm Pill QC) refused permission to appeal on the papers, following which I applied for a hearing.
- Following a hearing on 7 Jul 2010, by an order dated 8 Jul 2010 the Court of Appeal (Lord Justice Sir Robert Carnwath QC) refused permission to appeal (Note that this is a refusal of permission to appeal against a refusal of permission to apply for a judicial review! Seriously, you can't invent this stuff. What is worse, the judges, solicitors and so on do this on a daily basis without it ever occurring to them that there is anything ridiculous in what they are doing - or if it does occur to them they do nothing about it, which is even worse.)
Comments:
- The first thing to understand is that the FSA is not one of the bodies for which the Parliamentary Ombudsman (PO) is responsible and it only fell within the PO's jurisdiction during that period when the Treasury, which is within the PO's jurisdiction, contracted out supervisory functions to the FSA, namely 1 Jan 1999 to 30 Nov 2001. Furthermore, the supervisory functions which the Treasury contracted out to the FSA only covered prudential regulation functions, as opposed to conduct of business regulation functions. This means that the only functions of the FSA which fell within the PO's jurisdiction were the FSA's prudential regulation functions between 1 Jan 1999 and 30 Nov 2001.
- Prudential regulation is mainly concerned with ensuring long-term solvency and that companies are, accordingly, able to meet their liabilities to policyholders. Conduct of business regulation is concerned with, as the Penrose Report put it, 'ensuring that the policyholder is advised to buy what the policyholder needs' (Penrose Report, Part 6, page 540); in other words, with the marketing and sale of the company's products.
- As the PO's solicitors stated in their defence (para 39), prudential regulation is governed by Part II of the Insurance Companies Act 1982 and regulations under that Act. Transfers of long term business are covered by sections 49 and following of that Act. Transfers of long term business include a demutualisation (as proved by the fact that the Scottish Widows demutualisation scheme was approved under that section by the Court of Session).
- On this basis it is clear beyond any possible doubt (i.e. it is stated in back and white in an Act of Parliament), (a) that the demutualisation of a life insurance company is a transfer of long term business governed by s. 49 and following of the Insurance Companies Act 1982, (b) that Part II of the Insurance Companies Act 1982, which includes s. 49 and following, covers prudential regulation, (c) that the supervision of a demutualisation therefore falls within the prudential regulation functions of the FSA, (d) that because the Scottish Widows demutualisation took place in March 2000 it took place in that period when prudential regulation functions were contracted out to the FSA by the Treasury and (e) that a compaint concerning the FSA's supervision of the Scottish Widows demutualisation therefore falls within the PO's jurisdiction. It is that simple.
- Furthermore, the sending out of a circular to the policyholders explaining the terms of a transfer of long term business is a requirement under s.49 Insurance Companies Act 1982, which is not surprising given that the approval of such a transfer and the manner in which it is explained to the policyholders are the most important aspects of a transfer of long term business. This makes it clear that the terms of the transfer and ensuring that those terms are properly explained to the policyholders is a prudential regulation function (it is a criminal offence under the Act to send out a misleading statement).
- Furthermore, we know that the PO was aware of the above at the time she refused to investigate my complaint of October 2006 because in September 2005 she sent a memorandum to the Petitions Committee of the European Parliament explaining the distinction between prudential regulation and conduct of business regulation. In addition to this she explained the matter again in her July 2008 report on Equitable Life ('Equitable Life: a decade of regulatory failure'). I submitted the relevant parts of both of these documents in evidence, so all the judges involved were fully aware of this.
- Two things are therefore clear beyond any doubt: (a) that my complaint was within the PO's jurisdiction and (b) that she lied when she said that it was not.
- So why did four judges in succession find against me?
- Anthony ('Tony') Child and Judy Libovitch of Beachcroft LLP, who prepared the defence document, intentionally deflected the court's attention away from the fact that my complaint concerned the FSA's supervision of the demutualisation of Scottish Widows generally, and the supervision of the company's GAR liabilities during that period in particular, by concentrating on the sending out of the policyholder circular explaining the terms of the demutualisation. They argued that the sending out of this document fell within conduct of business regulation functions of the FSA rather than the prudential regulation functions of the FSA and referred to the FSA Handbook (ICOBS 2.2.2) in support of this argument.
- However, the first judge, His Honour Judge Roger Kaye QC, didn't even bother with this argument. In his order dated 1 Jul 2009 he simply repeated the lie put forward by the PO to the effect that the supervision of a demutualisation was a conduct of business regulation function and not a prudential regulation function, even though I had proved that this was a lie in my application (as outlined above). In other words he simply said 'The PO said that the matter was outside her jurisidction', without assessing whether the statement was actually true or not.
- In my renewal application of 10 July 2009 I pointed out that defence's claim, put forward on page 18 of their defence, that the FSA Handbook (ICOBS 2.2.2) proves that the sending out of the policyholder circular fell within conduct of business regulation functions of the FSA rather than the prudential regulation functions of the FSA was a clear lie because the very first paragraph of the FSA Handbook (ICOBS 1.1) states that 'This sourcebook applies to a firm with respect to the following activities carried on in relation to a non-investment insurance contract...', thus making it crystal clear that the part of the Handbook they quoted has nothing to do with policyholder circulars sent out during a demutualisation under s.49 Insurance Companies Act 1982.
- A critical point here is that I wrote to the court on 26 Jun 2009 (a Friday) to say that I intended to lodge a reply to the defence and asking the court to delay consideration of the papers (an application for judicial review is assessed on the papers in the first instance). Despite this (or perhaps because of it - these people aren't stupid) the judge did not either delay as requested or even reply but he simply went ahead and issued an order dated 1 Jul 2009 (i.e. the following Wednesday). This denied me the opportunity of submitting a reply to the defence, which would have established that the defence were lying (see previous para). Now CPR 15.8 makes it clear that a claimant has a right to file a reply to the defence, so how can a court proceed with a case when a claimant has made it quite clear that he intends to exercise that right? Hmmm.
- On the question of jurisdiction the second judge, His Honour Judge Simon Grenfell QC, said that my complaint was about the policyholder circular (paras 31 to 34 of the judgment), so he (a) completely ignored my actual complaint, which concerned the wider question of the FSA's supervision of the Scottish Widows demutualisation, and (b) ignored the fact that I had proved that the defence had lied about the sending of the policyholder circular being covered by the FSA Handbook (ICOBS 2.2.2).
- Of course, having concluded that my complaint was not within the PO's jurisdiction the judge was then free to conclude that the PO had not lied to me in telling me this!
- And having concluded that the PO had not lied to me the judge was then free to rule that I could not use concealment (i.e. lying by the PO) as a justification for the delay in making my application for judicial review!
- Cunning these Chinese.
- The third judge, Lord Justice Sir Malcolm Pill QC, simply wrote in his order 'I agree with the judge's conclusions' (i.e. with HHJ Grenfell, the second judge) without giving any reasons. This is unlawful since a court must give adequate reasons for its decisions, as I pointed out to the fourth judge. As Lord Brown said in South Bucks District Council and another v Porter [2004] 4 All ER 775 at 36: 'The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved.' In Vernon v Spoudeas & Anor [2010] EWCA Civ 666 at 44 it states ‘The appellant is plainly entitled in my judgment to a properly reasoned decision'. Is LJ Pill unaware of the fact that he is legally bound to give reasons for his decisions? No.
- Of course, in saying that he agreed with HHJ Grenfell LJ Pill was repeating HHJ Grenfell's 'mistake' in assessing the wrong complaint (i.e. HHJ Grenfall said my complaint was about the demutualisation circular (para 31 of his judgment) when it was actually about the FSA's supervision of Scottish Widows during the demutualisation, with particular reference to GAR liabilities).
- All of the points argued above were made in the bundle seen by the fourth judge, Lord Justice Sir Robert Carnwath QC, and yet he was apparently unable to understand them, in spite of the fact that I re-iterated at the hearing (a) that my complaint to PO concerned a transfer of long term business (the demutualisation of Scottish Widows), (b) that such transfers are covered by Part II of the Insurance Companies Act 1982 (it is there in black and white in an Act of Parliament) and (c) that the PO had accepted in the defence (para 39) that Part II of the Insurance Companies Act 1982 covered the prudential regulation functions of the FSA. It follows from a, b and c (is as plain as daylight) that my complaint to the PO was within her jurisdiction. I also referred the judge to the PO's memorandum of 2005 to the Petitions Committee of the European Parliament which made it quite clear that the PO was fully aware of the distinction between prudential and conduct of business regulation before I made my complaint. With regard to the LJ Pill's failure to give reasons LJ Carnwath simply said that it is normal to give short reasons, completely ignoring the fact that reasons should still be adequate even if they are short (i.e. what matters is there adequacy, not their length), as he well knows*. In his verbal judgment all LJ Carnwath said in relation to jurisdiction was that the PO had explained her position but, like HHJ Kaye, he never actually assessed whether my complaint was within the PO's jurisdiction or not. In other words he said 'The PO explained her position, there was no attempt to conceal what her position was, therefore there is no merit in the concealment argument, therefore there are no grounds to extend the 3 month time limit for making an application for judicial review, therefore the application is dismissed'. But what if her explanation was wrong? And what if it was not only wrong but we can prove that she knew that it was wrong, as I could and did? Doesn't that prove that she gave a wrong explanation knowing that it was wrong; in other words, that she lied? Knotty one that. Don't expect a senior judge to be able to understand it (their favourite phrase is 'I am not persuaded').
- In summary, the first judge simply repeated the PO's claim that my complaint was outside her jurisdiction without bothering to assess whether it actually was or not, the second judge did not even deal with my actual complaint, the third judge gave no reasons at all for his decision (merely saying that he agreed with the second judge - who had assessed the wrong complaint), which rendered his decision unlawful, and the fourth judge did what the first judge did i.e. simply repeated the PO's claim that my complaint was outside her jurisdiction without bothering to assess whether it actually was or not.
- Was this a mistake? I am afraid not. These judges are clever people and they could see quite clearly that it was as plain as daylight that my complaint was within the PO's jurisdiction so they simply avoided addressing the arguments on that point at all. There is a word for this sort of conduct, and that word is 'corruption'.
*According to 'A Practical Approach to Civil Procedure' (Sime, Stuart, Oxford, 9th Ed., p. 521) 'short reasons are usually all that is given on a refusal of permission'. This is based on Hyams v Plender [2001] 1 WLR 32 at 17. But if we look at this reference it says:
'There is one other point to which I would draw attention. This arises from a complaint by Mr Plender that the decision of Evans-Lombe J breached Article 6 of the European Convention on Human Rights. The Human Rights Act 1998 comes into force on 2nd October. A litigant will have a right to a reasoned decision under Article 6. On an application for leave the judge dealing with the application can, in my view, properly be brief in explaining his conclusion. But, as will be apparent from this judgment, merely to say that the Part 52 Practice Direction has not been complied with may give rise to a real difficulty in knowing what requirement of that Practice Direction has, in the judge's view, not been met. In my judgment the judge should have identified how the Practice Direction was not complied with. I emphasise that this can be done briefly. But it should not be left to the conjecture of the litigant.'
This makes it clear that although reasons can be brief they must still be adequate. As LJ Gibson makes quite clear 'it should not be left to the conjecture of the litigant'. In short, Hyams v Plender is not an authority for giving short reasons, it is an authority for requiring reasons to be adequate even if they are short.
38. Legal action against the Institute of Chartered Accountants in England and Wales (Top of page)
Section summary: Previous summary Note: When reading the court saga below ask yourself why the ICAEW are going to such enormous lengths to resist doing a very simple thing, which is to assess a complaint in accordance with their own rules, nothing more, and bearing in mind that the FAQ on the ICEAW's disciplinary process on their website says: 'If we don’t think there are grounds for a complaint, staff in the assessment team take great care to explain to the complainant why they have come to this view'. Why are the ICAEW refusing to do even this? There must be a reason. Well there is. Put simply, the £1.5 billion Equitable Life GAR liability crisis of 2000 was merely the tip of a £40 billion GAR liability iceberg, affecting the entire UK life industry, in which the auditors of the life companies were complicit in covering up a major financial scandal. In the course of this cover up the directors of the companies concerned, and their auditors, committed numerous criminal offences (under s. 19 Theft Act 1968 for instance) and the auditors failed to qualify the accounts of the life companies concerned (Spooky echoes of the banking crisis here). The ICAEW are desperate to avoid opening this can of worms because they know that it will expose the auditing profession, and the Big 4 accounting firms, destroying what little reputation they have left after the banking crisis and leaving those involved, including many of the most senior members of the accounting profession, exposed to civil actions and criminal charges. Put bluntly the ICAEW will not survive as a regulator in such circumstances (a second major regulatory scandal following the banking crisis); it will be ignominiously stripped of its responsibilities, as has happened with the FSA, which is due to be abolished. The ICAEW is quite simply fighting for its life. Now you know.
First complaint (November 2007):
In November 2007, and following my whistleblowing about the Scottish Widows demutualisation in 2002, I made a complaint to the ICAEW about PricewaterhouseCoopers' (PwC) audit of Scottish Widows in 1998 and their failure to qualify the accounts of that company in respect of a £1.5 billion GAR liability which later crystallized as a consequence of the House of Lords ruling in the Equitable Life case of 2000. Eventually, in October 2009, the ICAEW dismissed my complaint on the basis that my complaint was not a complaint (i.e. that there was no indication that PwC may be liable to disciplinary action*).
*The ICAEW's disciplinary rules define a complaint as information which indicates that a member or member firm may be liable to disciplinary action (so if they say that there is no indication that a member may be liable to disciplinary action they can rule that you have not even made a complaint). The FAQ on the ICEAW's disciplinary process on their website states that 'When the Institute first receives information about a member’s conduct, the first thing we do is assess whether there may [my emphasis] be grounds for a complaint under the Institute’s bye-laws. This means there is information which, if it can be supported by evidence, indicates the member may have to be disciplined.' What the ICAEW have done in this case is to say 'Your complaint, even if it were proved to be true, would not amount to a breach of ICAEW's rules.' In other words, I say that, in my view, an auditor should have qualified a certain set of accounts, based on a certain set of facts, and the ICAEW respond that, in their view, the auditor did not need to qualify that set of accounts, based on those facts. Why is this unreasonable? It is because the fact that I have not carried out an investigation means that it is quite clear that I may not be in possession of the full facts and it is not safe for the ICAEW to assume that I am. The ICAEW are saying, in effect, and with no justification, that they assume that there are no material additional facts that might be revealed by an investigation, even though the basic facts (in my case the existence of a £1.5 billion GAR liability which was not disclosed) indicates that something may be wrong. In this case, for instance, I initially complained about PwC's failure to qualify the 1998 accounts of Scottish Widows on the basis that the Equitable Life court case concerning GAR liabilities had started in the High Court shortly before the accounts were signed off and that the commencement of this court case should have put PwC 'on notice' that there was a problem concerning GAR liabilities. The ICAEW responded by arguing that 'as the action was in a very early stage I do not believe that without hindsight there was a sufficient basis to compel the company to conclude that a contingency note about the guaranteed annuity return exposure was necessary.' But if the ICAEW had investigated the matter they would have found that GAR liabilities were 'an industry-wide issue' by November 1997 (Penrose Report, Part 4, Ch. 12, para. 8, p. 380), meaning that PwC were, in fact, fully aware of the GAR liability problem long before (at least a year) they signed of the 1998 accounts of Scottish Widows. Of course, the reality of the situation was that the ICAEW tried to 'nip my complaint in the bud' precisely in order to avoid discovering such facts. In effect they refused to carry out an investigation to obtain the evidence they would have obtained by carrying out that investigation - if you see what I mean ('We can't get the evidence until we investigate it and we won't investigate it until we get the evidence.').
In June 2010 the Joint Disciplinary Scheme (which has now been succeeded by the Accountancy and Actuarial Discipline Board and which investigated complaints on behalf of the ICAEW) issued a Supplementary Appeal Report in relation to their investigation into Ernst & Young's failure, as auditors of Equitable Life, to qualify the 1998 accounts of that company in respect of a £1.5 billion GAR liability which later crystallized as a consequence of the House of Lords ruling in the Equitable Life case of 2000 (Are you beginning to see a parallel here?). The report found (para. 57) that Ernst & Young had been 'seriously at fault in sanctioning non-disclosure in the absence of specific legal advice that such a course was justified'. In other words the JDS found that Ernst & Young should have qualified the 1998 accounts of Equitable Life in respect of the £1.5 billion GAR liability in the absence of specific legal advice to the contrary.
The obvious inference was that if Ernst & Young should have qualified the 1998 accounts of Equitable Life in respect of their £1.5 billion GAR liability in the absence of specific legal advice to the contrary, then PricewaterhouseCoopers should have qualified the 1998 accounts of Scottish Widows in respect of their £1.5 billion GAR liability in the absence of specific legal advice to the contrary, bearing in mind that fact that we can be reasonably certain that no-one would have been prepared to give such an opinion in the face of the obvious risk of insolvency arising from the existence of such a liability - as of course actually happened in the case of Equitable Life.
It was a reasonable inference, therefore, that if Ernst & Young were seriously at fault as a result of their failure to qualify the 1998 accounts of Equitable Life and deserved the sanction imposed on them by the JDS as a result, then PwC were seriously at fault as a result of their failure to qualify the 1998 accounts of Scottish Widows and deserved sanction as well. In other words there was considerably more than an 'indication' that PwC 'may' be liable to disciplinary action.
This is not a complicated train of thought, though, of course, it directly contradicts the ICAEW's finding in respect of my complaint against PwC. Not to put too fine a point on it, it would appear that the ICAEW's finding in respect of my complaint had been directly contradicted by their own JDS investigation into Equitable Life.
Second complaint (June 2010):
In June 2010 I therefore sought to re-open my earlier complaint against PwC, but the ICAEW responded 'I would draw your attention to Mr Farren's email dated 3 November 2009 timed at 15:35 in which he writes (third paragraph) "As this is the end of the process future correspondence received from you on this matter will only be responded to if we consider it appropriate". I have therefore filed your recent correspondence with the closed file.' No explanation was given for dismissing this serious new evidence.
This is all described at http://www.happywarrior.org/widows/widows03.htm#20_3 (that's 20_3).
Third complaint (July 2010):
The Parliamentary Ombudsman's report on the Equitable Life crisis, 'Equitable Life: a decade of regulatory failure', had revealed (Part One: main report, para. 74) that, at that time, 8 other (unnamed) life companies had such significant GAR liabilities that they 'gave general cause for concern' and that one (unnamed) company other than Equitable Life was 'of particular concern'. It was clear, on this basis, that companies other than Equitable Life and Scottish Widows had also had significant GAR problems at that time. The natural question was why the 1998 accounts of these companies had not been qualified either (if they had we would have known about it a la Equitable Life, believe me).
Any reasonable person would, I submit, agree that the facts outlined above indicate that the auditors of these other companies, whoever they are, may be liable to disciplinary action. I was therefore not only justified in making a complaint to the ICAEW on this basis but, as a member, I was required to do so by the ICAEW's own disciplinary rules. In other words, I might have been liable to disciplinary action myself if I didn't make a complaint.
Accordingly, in July 2010 I made a complaint against the auditors of these other companies. I did not name the companies or their auditors because I did not have access to the information (a Government Actuaries Department report) on which the Parliamentary Ombudsman had based her statement. However, the ICAEW's rules specifically state that a member is not required to carry out an investigation and, in any event, it was my view that my only duty was to report sufficient information to allow the ICAEW to identify the auditors concerned, which should be a relatively simple job for them (We are inevitably dealing with Big 4 firms here given the size of the companies concerned).
Application for permission to proceed with a judicial review:
The ICAEW did not respond to my complaint or to a reminder, so I launched an application for a judicial review asking the High Court to order the ICAEW to assess my complaint in accordance with their own rules; nothing more than that.
Defence:
In their defence document the ICAEW asserted that my complaints of June and July 2010 were a mere repetition of my complaint of November 2007 or concerned the same matters and issues*, completely ignoring (1) the fact that my earlier complaint was against PwC and that my later complaint was against the auditors of the other life companies and that these might not include PwC (neither the ICAEW nor myself knew either way) and (2) the fact that my later complaint was prompted by a report of June 2010 and so could not have been a mere repetition of one made in November 2007. They argued that because my complaint of July 2010 was the same as my complaint of November 2007 that my application for judicial review had been made outside the 3 month time limit. They argued that my complaint of July 2010 did not identify the members complained about and was too generalised. In other words they refused to assess my complaint on its merits, which was all I expected. Note that the Ethics Advsory Service of the ICAEW later confirmed (in a recorded telephone conversation) that I was required by the ICAEW's own rules to make a complaint in such circumstances, even though I did not know the names of the companies concerned or the names of their auditors. This means that we have a position where one department of the ICAEW (The Ethics Advisory Service) is telling me that I have a duty to report a matter and another department of the ICAEW (The Professional Conduct Directorate) is refusing to investigate, or even assess, that same matter.
The ICAEW therefore opposed my complaint on four grounds:
- that my complaint of June 2010 was the same as my complaint of November 2007 (which of course it was, but based on new evidence, namely the report of Sir Jonathan Parker of June 2010 which flatly contradicted the reasons given by the ICAEW for rejecting my complaint of November 2007);
- that my complaint of July 2010 concerned 'the same matters and issues' as my earlier complaints*;
- that my complaint of July 2010 did not identify the the members complained about and was therefore too generalised (ignoring the question of whether my complaint provided sufficient information to allow the ICAEW to identify the relevant parties and the fact that the ICAEW rules specifically state that a member is not obliged to carry out an investigation - that's the ICAEW's job funnily enough);
- that because my complaint of July 2010 was the same as my previous compaints my application was outside the 3 month time limit (of course this argument falls to the ground if it was not the same).
*If you complain (i.e. report) to the police that person A has committed a fraud, that is one matter. If you then complain to the police that person B has committed a similar, or even identical, fraud but against a different victim, you could say that, on one level, your second complaint concerns 'the same matters and issues' as your first complaint- but they are clearly two different offences. What would you think if the police were to refuse to investigate your second complaint on the basis that it was the same as your first complaint? Quite. This is how the ICAEW's lawyers attempted to mislead the court (which is a criminal offence; namely misconduct in public office, given that a solicitor is, in law, an officer of the court and therefore a public official) and many lazy judges will accept such nonsense (as happened in this case) simply because the person who made it is a lawyer and the person opposing them is not.
High Court (Rejection of application on the papers) - 7 Jan 2011:
On 7 January 2011 the High Court rejected my application for permission to proceed with a judicial review on the basis (1) that my complaint against PwC had been considered on two previous occasions, (2) that the ICAEW were entitled to take the view they did (another favourite phrase of judges, which fails to explain the real issue, which is whether the view was reasonable in the circumstances; in other words, a person is clearly not entitled to take a view that is unreasonable) and (3) that my application was out of time. These findings related to my complaint about PwC and not the complaint which formed the basis of my application, namely my complaint of July 2010 against the auditors of the other life companies referred to by the Parliamentary Ombudsman, which means that these findings were simple nonsense - see below.
As I pointed out in my subsequent renewal application, my complaint of July 2010 (which was the complaint that formed the basis for my application for judicial review) was not against PwC but against the auditors of the other life companies referred to in the Parliamentary Ombudsman's report, that neither I nor the ICAEW nor the judge knew whether PwC was one of these auditors and that the judge was therefore completely unjustified in coming to the conclusion he did. I also pointed out that saying that the ICAEW were entitled to take the view they did was a conclusion and not a reason and that his failure to give a reason for that conclusion rendered his order unlawful*. Since my complaint of July 2010 was not a repetition of an earlier complaint it was not out of time, having been made within 3 months.
*As Lord Brown said in South Bucks District Council and another v Porter [2004] 4 All ER 775 at 36: 'The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved.' This decision is binding on the judge in this case, which means that he is legally required to follow it..
Further, the ICAEW's response to my second complaint of June 2010 (which was 'I would draw your attention to Mr Farren's email dated 3 November 2009 timed at 15:35 in which he writes (third paragraph) "As this is the end of the process future correspondence received from you on this matter will only be responded to if we consider it appropriate". I have therefore filed your recent correspondence with the closed file.' ) was clearly not in accordance with their own published procedures (the FAQ on the ICEAW's disciplinary process on their website) which says: 'If we don’t think there are grounds for a complaint, staff in the assessment team take great care to explain to the complainant why they have come to this view' and this, of course, is grounds for seeking a judicial review to order them to comply with their own procedures i.e. to give proper reasons for rejecting a complaint. The point is that having improperly rejected my second complaint in this manner they then sought to justify their rejection of my third complaint (against the unnamed life companies referred to in the Parliamentary Ombudsman's report) on the basis that they had, in effect, already dealt with my third complaint in responding to my second complaint - ignoring the fact that their rejection of that second complaint was itself improper. Now these facts are plainly evident in the court papers, so the judge should have responded to the ICAEW that their rejection of my third complaint cannot be valid because it relies on an invalid rejection of my second complaint. In other words, it should have been obvious to the judge, and he should have ruled, that the ICAEW's argument was unsubstantiated (i.e. a house of cards). Instead, of course, he ruled that the ICAEW were entitled to take the view they did WITHOUT THE ICAEW EVER HAVING EXPLAINED WHY THEY TOOK THAT VIEW. This means that the judge accepted an assertion by the ICAEW without requiring them to explain that assertion.
High Court (Rejection of application at renewal hearing) - 2 March 2011:
At the renewal hearing on 2 March 2011 the judge said that he had misunderstood which complaint he had been dealing with when he rejected my application on the papers (although it is stated quite clearly on the application form - there is even a box on the form which says 'Date of decision') and, on this basis, he accepted that the ICAEW had not been entitled to take the view that I had offered no new evidence (in so far as he did not repeat this as a reason in his judgment), so all that was left was the defence's assertion that my complaint was too generalised - and this was the sole reason he gave for refusing my application on 2 March 2011. However, he completely failed to address my key argument on this head which was that if I provided the ICAEW with enough information to allow them to identify the parties, how could my complaint be too generalised? I also pointed out that my only duty was to provide the ICAEW with sufficient information to allow them to identify the parties involved, that I had done this and that, under ICAEW rules, I was under no obligation to carry out an investigation myself (which, in any event, the ICAEW were in a far better position to carry out than I was). Information cannot be sufficient for a purpose (to identify the parties concerned) and inadequate (too general) for that purpose at the same time. Knotty one that. I am not surprised that he did not address this point and I actually had the strong impression that I had simply cut two out of three of the defence's arguments from underneath his feet and that he had therefore used the only argument left to him, even though it was plain nonsense. He was caught on the hop.
Appeal to the Court of Appeal (Grounds of appeal) - 9 March 2011:
On 9 March 2011 I appealed to the Court of Appeal on the grounds:
1. That the judge failed to consider, as he is required to do, my key argument in relation to the sole ground on which he dismissed my application; in other words that he dismissed my application on the basis that it was a generalised complaint not against individual accountants but failed to deal with my argument that I had given the ICAEW sufficient information to allow it to identify the relevant parties and that, as a matter of fact, this was all that I was required to do under the ICAEW’s own rules.
2. That the judge dismissed my application without finding that it was either without merit or malicious or otherwise illegitimate and that a judge is required (by a House of Lords ruling - R v Inland Revenue Commissioners, ex p. National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2, per Lord Diplock) to allow an application to proceed in the absence of such a finding; in other words an application should be allowed to proceed unless it is either without merit or malicious or otherwise illegitimate (given that the sole purpose of the permission stage is to weed out malicious, unfounded or otherwise illegitimate applications).
3. That the judge refused to allow me to put forward arguments at the hearing to the effect that the ICAEW’s refusal to respond to my complaint and its opposition to my application for judicial review was based on illegitimate motives while, at the same time, the judge confirmed, at the hearing, that he would have allowed the ICAEW to put forward such arguments (i.e. that I was acting from illegitimate motives) had they wished to do so; in other words, that the hearing was not a fair hearing and was a breach of my article 6 ECHR right to a fair trial.
Section detail:
- On 25 October 2010 I sent a judicial review claim form to the High Court (Administrative Court) in Leeds.
- On 22 December 2010 the ICAEW sent to me a Summary Grounds for Contesting the Claim. They contested the claim on the basis that the complaint to them to which my application related was a repetition of a previous complaint and that this previous complaint was outside the 3 month time limit (from the date of the decision to reject my complaint) for applying for judicial review.
- On 7 January 2011 the Court issued a court order rejecting my claim on the papers (i.e. there was no hearing) on the grounds that my complaint to the ICAEW was a repetition of a previous complaint which was itself outside the 3 month time limit for applying for judicial review.
- On 17 January 2011 I sent a renewal application (applying for a hearing) to the High Court (Administrative Court) in Leeds. The basis of my renewal application was that, as I had made clear in my application, my first complaint to the ICAEW was about the failure of Scottish Widows' auditors, PricewaterhouseCoopers (PWC), to qualify the 1998 and 1999 accounts of that company on account of a £1.5 billion GAR liability which crystallized (i.e. it became an actual, as opposed to contingent, liability following the ruling of the Court of Appeal in the Equitable Life case) before the 1999 accounts were signed off, whereas my second complaint to the ICAEW was about 8 life companies whose GAR liabilities had been a 'cause for concern' on account of their GAR liabilities at that time (1997-1999 roughly), according to the Parliamentary Ombusdman's report on the Equitable Life crisis, and that since neither myself nor the ICAEW nor the court knew whether PWC was one of these 8 companies (indeed, it was possible that PWC was not one of these 8 companies), it could not be argued that my second complaint was a mere repetition of my first complaint. In addition, my second compaint was prompted by the report of Sir Jonathan Parker (see the judicial review claim form for further details), which had been issued after my first compaint was rejected, so my second complaint could not have been made earlier.
- On 17 January 2011 the defendant's solcitors, Bates, Wells & Braithwaite, sent a letter to the court. Note the emphasis they put on my apparent (but not actual) failure to apply within the time limit. A few sentences later they try to excuse their own failure to comply with a time limit on the basis that I suffered no prejudice. So why didn't they apply that argument to my apparent failure? Seriously, these people are so inherently deceitful that they don't even notice using two contradictory arguments within the space of a few sentences.
- Prior to a telephone hearing on 2 March 2011 I sent a letter to the court.
- On 2 March 2011 at a telephone hearing the court dismissed my renewal application.
- On 9 March 2011 I appealed against this order to the Court of Appeal.
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