HMCTS has a number of ways of obtaining money from court users. Some of these amount to sharp practice and although within the Civil Procedure Rules can also be said to amount to an abuse of process.
Yesterday I discussed how difficult it is to obtain a refund from HMCTS (with an example!). Today I look at one of the ways they increase costs for parties.
Here’s one of the ways this happens.
An application in a civil claim was cancelled with a few days notice.
This is because the High Court Judge set to hear the case, The Hon. Mr Nicholas Lavender, decided to scuttle back to London before Yorkshire and the North East Circuit (for which he is senior civil judge) was put into tier three COVID restrictions. In the event this was pointless as a few days later the Government decided to lockdown the whole of England. However this caused significant disruption to civil listings at Leeds Combined Court this week. Great to see a judge who takes his leadership responsibilities so seriously.
The hearing was rescheduled with eight days notice to the parties. Which was insufficient notice for the Claimant. The Claimant informed the court of this and the grounds for being unable to attend the short-notice rescheduled hearing. Either these grounds were not out before the judge or else were ignored.
One facet of The Hon. Nicholas Lavender’s handling of cases can be seen on a website in which it’s complained that he seeks to drive up costs for litigants. Particularly ones whose cases he finds tiresome. I suppose he has to find some amusement in the job. This site can be found at https://www.bentjudgenicholaslavender.site/index.php/contact/ [viewed February 2020]. Some of the content of the site this writer is unable to verify: in respect of his seeking to drive up costs for parties however I am able to comment.
So consequently the grounds on which the Claimant couldn’t make the rescheduled hearing were ignored and an Order made by the judge regarding the rescheduled date. As per usual the route to challenge such an Order lies in the completion of an N244 form and the payment of a fee. Indeed this is the only route to do so when an Order has been made by the judge.
Now here’s where things get funky. In addition to driving up costs for parties he dislikes Nicholas Lavender likes to take his time on dealing with applications made. Sometimes this can be up to four months when HMCTS service standards say fourteen days should be the turnaround time for such.
So the court ignored the grounds for the Claimant not being able to attend the rescheduled date in order to make an application which would then cost the Claimant £55 to overturn. There is of course no guarantee that the application to vacate the rescheduled date would be heard before the due date of the hearing (especially not with this judge!) but hey… let’s take a punt on the idea of making some more money out of a service user.
This sort of thing represents clear sharp practice but is a common enough activity within HMCTS.
Two blog entries on two separate days about how HMCTS deals with services users money.
Tomorrow is the more complex blog entry which deals with some of the underhand ways civil courts like to part you from your cash. Stay tuned!
Today is a simpler tale of how awkward they are when you try to get it back.
An artists impression of the inside of the Fees Office at The Royal Courts of Justice.
In April this year a fee was paid to Queen’s Bench Division at The Royal Courts of Justice.
Due to the pandemic QBD was largely out of action for some time, or at least the office to deal with the application was.
By July it was clear that the grounds and reasons for making the application had passed. The time which had gone without any staff present to man the appropriate office at QBD rendered the application pointless.
So the fees were requested to be returned.
“No problem!”, say QBD.
And the appropriate notification was supposed to have been sent to Fees Office. Lead time on return was reckoned to be six weeks maximum.
Four months later I’m still waiting.
Not that the fee paid was large or exorbitant. Which makes the continued retention of it even more baffling.
But what really boils my blood is that of several emails sent to both QBD and Fees Office at RCJ can you guess how many have received a response?
Go on! Have a wild guess!
That’s right. None. Over a period of some four months now Fees Office & QBD has failed totally to respond to several emails chasing this matter.
This is of course very HMCTS.
Nor have emails to The Court Manager at QBD about the lack of response received a reply. This is even more HMCTS!
Just today an email response to a separate matter has been issued by HMCTS. That took a blindingly quick two months without any explanation of why so much time had elapsed.
In separate proceedings last week the DJ complained that the case file was in very poor condition. A prior hearing in the same matter had to be abandoned on the basis that the file had been lost.
All of the above and the general woeful experiences to be had with HMCTS suggest the organisation – visibly tottering for some time – is now actually on the verge of collapsing or has actually done so. Staff largely unable to cope pre-COVID-19 appear now to be hopelessly overwhelmed by the day to day administration of cases.
Customer Relations at HMCTS dealing with another complaint with customary sensitivity and respect.
The recent death of Peter Sutcliffe (a man dubbed in the media as The Yorkshire Ripper) presents a practical public-relations problem for West Yorkshire Police. It again raises the spectre of how Sutcliffe was able to kill so many people for such a sustained period. The answers make uncomfortable truths for that force.
Sutcliffe in 1974
West Yorkshire Police’s failure to catch Sutcliffe in what was one of the UK’s biggest manhunts plays a significant part in their present international reputation as a force beset by incompetence and corruption. It is a reputation with considerable justification.
Sutcliffe was not blessed with high intelligence enabling him to evade capture. Nor was he the popular fiction version of a serial killer: a creature of almost animal cunning and divine luck. Granted he was aided considerably in his activities by the relative infancy of forensics in the late 70’s. But this does not tell the whole story.
For the most part the reason Sutcliffe was able to carry on killing was down to long-identified administrative and operational failures on the part of the police. He is known to have been interviewed several times by officers in the course of their investigations but each time was discounted for further investigation. Other operational errors are known to have included an excess of paperwork generated in the course of the investigation. Detectives were hindered rather than helped by the weight of data generated and the primitive storage of such.
I would argue another failing contributed to the deaths of thirteen women. This is that police officers both at the time and now have a particular mindset which pre-disposes them towards both a closed minded approach to investigations and a form of “tunnel vision”. This comprises some of the issues I’ll discuss below.
Personal characteristics
To start with it’s popularly said that a Yorkshireman is a particular sort of stout character. Gruff, uncommunicative and 100% convinced he’s right in the face of all opposing evidence. Bluff and stiff-necked. The Harry Enfield comedy version of a Yorkshireman isn’t far from the mark. You know as well as I do the popular stereotype. For some reason beyond my capacity to fathom West Yorkshire Police provides a home to people very much of this mindset: there is a poisonous organisational culture which incubates some undesirable personality characteristics.
“Ah’ll say what ah bloody well like!”
Consider the absolute certainty with which the senior officer in the Sutcliffe investigation, George Oldfield, was sure the killer was the voice on the Weirside Jack hoax tape is a tragic example of this unwillingness to admit to error once a set path has been taken. In the police both of the 70’s and today face-saving is also a strong motivating force. Especially so when consistent underperformance or failure are likely to result in downgrade to civilian worker status.
A former Australian Director of Public Prosecutions Nicholas Cowdry produced a book called “Getting Justice Wrong” in which he argued that tunnel-vision on the part of officers (…he must have done something even if we can’t get him on what we’ve arrested him for!) plays a significant part in police failures. Tie this into the inability to admit to errors being make and you’ve an already toxic mix.
The “right” sort of victim
Sutcliffe’s first few murders were women largely at the margins of society. It is only with his killing of Jane Macdonald, a shop worker, in 1977 that the investigation increased in speed and urgency. This was partly in response to media pressure. But police then and now categorise crimes reported to them in an internal value system based partly on the perceived “worth” of the victim in society (socio-economic status etc). Sutcliffe attacked a young woman outside of Bradford in 1974 who sustained horrific injuries but police handling of the complaint and their investigations were at best suboptimal. The same occurred later when he attacked a lady who was a member of the BAME community in Leeds. Her complaints were “cuffed off” (to use the current parlance of West Yorkshire Police) rather than investigated. it is likely because of her background and low educational attainment that she was not considered a significant enough figure for her complaint to be deemed “worth” investigation.
Presented without comment. BBC News report on the day Sutcliffe’s death was announced.
The “right” sort of crime
Easy to solve crime is preferred. Especially if it’s hitting targets or addressing an issue of public concern. More complex investigations are likely to be shunned on the basis of the time, expenditure and difficulty of prosecuting successfully. Then and now police have one eye on the crime statistics and are more likely to address issues of public concern based on recent media exposure of such crimes. There’s a reason The Serious Fraud Office are so notoriously unsuccessful despite The City of London being rampant with financial corruption. In the matter of the Sutcliffe investigation it is arguably only when he began to operate outside of the red light areas from 1978 onwards that the police ramped up efforts due to increased public concern. This public concern increased again from 1980 onwards.
Conclusions
Ultimately Sutcliffe was caught by sheer luck and the most basic of police work.
He was picked up by uniformed constables from South Yorkshire Police in a situation in which he was likely preparing to kill again. Having disposed of his weapons behind a toilet cistern under the pretext of needing to urinate it is the quick-thinking of a South Yorkshire PC which led to the discovery of the weapons and the eventual confession of Sutcliffe that he was the killer.
The hugely expensive and lengthy investigation by West Yorkshire Police had been an excruciating waste of time and money. Arguably by tying itself in knots by a combination of weak administration and blinkered mindset the investigation had allowed Sutcliffe to carry on killing.
Serial killers are thankfully exceptionally rare and unusual. The advances in forensic technology and other policing methods in the forty nine years since he was caught render another Yorkshire Ripper type of killer thankfully even less likely.
However a weak spot remains in the mindset and attitude of police officers as I have discussed. Then and now significant barriers exist in investigations due to habits it’s almost impossible for police officers to break. This is partly fostered by an inherited organisational culture and thus will remain with us for some time yet.
Recorder Ben Nolan QC, a part-time, fee-paid judge on the North East Circuit posted an inadvisable tweet in the late evening of 18th June, 2020:
The relevant Twitter account has now been deleted.
Like the account of HHJ Sarah Greenan, a Family Court judge sitting at Leeds and who has been subject of a prior blog post regarding judicial misuse of Twitter.
Ben Nolan QC is assumed to have sufficient seniority as a judge to be aware of the judicial conduct rules and how these relate to the expression of opinions on social media and elsewhere.
However let’s count the issues with the tweet above, shall we?
Inappropriate uses of expletives
Political opinions expressed regarding the Government
Poor diction – an issue which has been said to appear in Ben Nolan’s judgments
“fetid Primark store” expresses social prejudice against the people you’d likely find in Primark if not the store itself.
A complaint was made to the reliably ineffective Judicial Conduct and Investigations Office which supposedly enforces judicial conduct guidelines. The complaint was made in the terms mentioned above. JCIO can usually be relied upon to evade proper action on complaints about judges via a series of “trapdoors” built into the regulations which allow such cuffing off of legitimate complaints.
However – again unusually for JCIO – the issue made it as far as Nominated Judge (NI) stage. In this matter the NI being The Right Honourable Lady Justice Carr. In a complaint outcome letter dated 21st August, 2020 the JCIO stated that the Nominated Judge (NJ) concluded that:
“I do not consider that the posting of the tweet amounted to judicial misconduct. The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge. Nor did the contents of the tweet identify in any way that the author was a judge. In short, the tweet contained a private expression of opinion, albeit in offensive language, on the part of the Judge in circumstances that did not implicate him as a judicial office holder. In these circumstances, it did not risk bringing the judiciary into disrepute”
The NJ also considered that:
“the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”.
You might of course wonder about the common sense of a judge who bases his opinions on things he has seen on television or read in a newspaper!
Recorder Ben Nolan QC
The Nominated Judge went on to say:
“Accordingly, the complaint has been dismissed under Rule 41 (b) of the Judicial Conduct (Judicial and other office holders) Rules 2014.”
Regardless of the NI’s findings the rules regarding judicial conduct apply if the judge is identified / self-identified as such or not. Otherwise there is little point having the rules! As such the findings of Lady Justice Carr are at best unsustainable.
The findings of the Nominated Judge have been appealed on these grounds:
The outcome letter states:
The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge.
However the March 2020 Guide to Judicial Conduct states:
Judges should be aware; however, that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary whether or not a judge’s comments would lead to recusal from a particular case. This risk arises in part because the judge will not have control over the terms of the debate or the interpretation given to his or her comments.
The risk of expressing views that will give rise to issues of bias or pre-judgment in future cases before the judge is a particular factor to be considered. This risk will seldom arise from what a judge has said in other cases, but will arise if a judge has taken part publicly in a political or controversial discussion.For these reasons, judges must always be circumspect before accepting any invitation, or taking any step, to engage in public debate. Consultation with their relevant leadership before doing so will almost always be desirable.Where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including a set of chambers or firm of solicitors), group or cause or to a lack of even handedness. Care should also be taken therefore, about the place at which and the occasion on which a judge speaks. Participation in public protests and demonstrations may well involve substantial risks of this kind and, further, be inconsistent with the dignity of judicial office.
This is stated in the context of post on social media or to newspapers etc.
There is no requirement in the Conduct Regulations that a judge is able to state anything he or she wishes provided he is not identified as a judge. Which of course makes a nonsense of the Nominated Judge’s application of the rules. In fact it rather shows that the NI has misapplied the rules to avoid making a judgment against Recorder Ben Nolan QC.
In fact the rules apply to judiciary regardless of if they are commenting from a personal perspective, or as a judicial office holder. Different rules of course apply to such as The Secret Barrister who is believed to be a member of counsel but is not identified directly as such.
There is no mention made in the Conduct regulations that the judge is able to publicise his own views regardless of if he mentions his judicial office or not. The rules apply equally to someone identifying themselves as a judge or not.
The response of The Rt. Hon. Lady Justice Carr hinges on the basis that the judge was not identified on his Twitter account as a judge. This is the basis for her dismissal of the complaint. This is not relevant to the complaint and in this matter has been seized upon as grounds to dismiss the complaint erroneously and contrary to the relevant rules.
One might wonder about the reliability of the investigation given the deeply odd findings made.
Anyone working on the North East Circuit (presumably the majority of Ben Nolan’s Twitter followers) are able to identify the Twitter account holder as a judge and the majority of the persons following the account will also have been aware that he was a fee paid judge from either media or professional connections. That the account holder was a member of the judiciary is something clear and obvious from the account itself.
Recorder Ben Nolan QC described as “a heavyweight in criminal practice”.
The basis on which the complaint has been dismissed is therefore spurious and erroneous.
In respect of the comments regarding Primark clothing stores the findings of the Nominated Judge stretched credulity even further. For good or ill that store seems to be one ripe for mockery as a place where people without much money tend to shop. The NI claimed:
“the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”.
This is problematic in a number of areas. Firstly why would Ben Nolan QC comment on something that he has picked up from second-hand experience? Is also his comment not reflective of social prejudice on the part of the source material in newspapers papers or on television in which he has seen such comments? Regardless of if a prejudice has been obtained from TV or newspapers the expressing of the same ideation by a person – particularly a person intelligent enough to recognise them as being prejudice – is effectively them expressing the same prejudice.
I would say that the tweet regarding Primark does express social prejudice on the part of a judge and that this is an exceptionally concerning matter.
The complaint outcome has been appealed. The outcome of the appeal is awaited.
It has been intimated in a separate civil case that Ben Nolan will shortly no longer be undertaking judicial work.
Judge Sarah Greenan (or HHJ Sarah Greenan) sits as a judge in the Family Court at Leeds Combined Court and also as a Crown Court Judge in Manchester. Her old chambers are Zenith in Leeds.
For most of her time sat on the bench she appears both bored and irritated by the mechanics of the job she has to do.
Specific rules exist in relation to judges and their ability to express an opinion in a public forum as well as their use of social media. These are enshrined in the Judicial Conduct Rules.
In February 2019 Judge Greenan posted a tweet to her since deleted Twitter account @Sarah_Zenith which expressed satisfaction that a High Court Judge has upheld an appeal in relation to a judgement she made and also that the Court of Appeal upheld her in a different case.
You may of course be wondering at this point why this judge has so many of her cases sent to appeal. This isn’t for me to comment but doubtless you can draw your own conclusions. Her pastoral supervisor is Judge Mark Gosnell, the senior civil judge for Leeds and Bradford, who also sits at Leeds.
However the sending of such a tweet amounted to a breach of regulations governing judicial conduct.
In cases such as this (or for example if a judge is abusive or aggressive in a hearing) there is a body to which complaints can be made. This is the reliably ineffective Judicial Conduct and Investigations Office based at The Royal Courts of Justice in London. Despite its name this is an office which actively seeks to avoid any examination into judicial misconduct and will seek to disapply – that is to say reject – complaints for a number of spurious reasons. Britain’s public life is beset with watchdogs which have no bite: it enables a “business as usual” approach to the corruption and incompetence which characterise public life in the UK.
But to everyone’s surprise this matter was taken up by JCIO. Which was one of a handful of complaints they did choose to investigate in 2019 and not “cuff off” as is standard procedure. Perhaps because this is a relatively low-level offence for which the evidence of misconduct was clear and unarguable. Or perhaps JCIO had a quota of complaints to process in 2019 to make it look as if the office was actually doing their job and this was seen as a trouble-free investigation. The matter was examined by the reliably obstreperous Isabelle Odowa at JCIO.
In short not even JCIO could not find a way to dismiss the complaint!
The basis of the complaint was that a lack of impartiality was shown in the opinions expressed, that personal opinions were shown and that the relevant codes of conduct for judges making public comments were breached.
As per standard procedure the complaint was referred to a Nominated Judge and then onwards to The Lord Chief Justice and Lord Chancellor. Each made a finding against HHJ Sarah Greenan with the ultimate conclusion being that the complaint was upheld.
The sanction imposed was informal advice in accordance with Para. 15 (2) & (3) of the Judicial Discipline (Prescribed Procedures) Regulations 2014.
This “cosy chat” approach of providing informal advice doesn’t seem like much of a sanction. And it isn’t. Because as this and several other cases referred to JCIO and upheld by The Lord Chancellor show “light touch” regulation is very much favoured particularly when it comes to misconduct from judges.
However it can be noted that judges as far south as Central London County Court were aware of and discussing this case after The Lord Chancellor’s decision and as such it may have sharpened up the behaviour of some of the judiciary on social media. Or not in the case of such as HHJ Recorder Ben Nolan QC… whose case I shall go into in a separate blog post one day.
This whole matter has made it clear to Judicial Office however that HHJ Greenan isn’t someone who can be relied upon not to make inadvisable comments in public forums. The judiciary tends not to appreciate members who are too verbose in this was & her actions may cost her a promotion or a minor title on retirement somewhere down the line.
Severe concerns exist regarding the safety of those being compelled to attend HMCTS civil courts
The official line from HMCTS is clear. That courts in the UK are COVID-19 secure.
The facts tell a different story altogether.
Outbreaks at half a dozen courts in the North East and North West circuits such as Leeds and Liverpool in the last few weeks show that HMCTS’ position is at best ill-informed and hopelessly optimistic. There have been further instances of the virus spreading at other courts across the UK. The PCS union has expressed severe concerns to its members regarding the safety of their workplaces, as has The Bar Council.
PCS members are encouraged to walk out of an unsafe working environment. Given the level of workplace bullying known to go on at civil courts such as York County Court it’s highly unlikely any member of court staff would do this.
Civil court users are not so lucky.
I have a hearing in case at Doncaster next week. The Defendant in the claim has already expressed surprise that the hearing is still set to go ahead despite a second national lockdown.
I have also expressed my own surprise to court staff who simply directed me to a webpage with the usual platitudes and informed that the hearing was still set for next week. The attitude towards safety concerns raised was dismissive and lethargic. This is simply not good enough in a pandemic.
None of the valid concerns I have expressed in communication with the court have received a response.
The simple fact is that a public building cannot be made COVID-19 secure any more than HMCTS can claim to have ensured a building is totally free of dust, oxygen or carbon atoms. Thus everyone attending a hearing at any court will be exposed to a potential risk of a severe illness, as will any of their family members when the attendee returns home.
If HMCTS were an organisation which is able to get the basics of running the civil system right then there would be more confidence in the claim that courts are COVID-19 secure. But the hopelessly inept, slapdash approach that characterises HMCTS pre-pandemic does not inspire confidence.
When people are being compelled to attend civil hearings in circumstances where there have been severe outbreaks in court buildings and staff appear dismissive of safety concerns one has to consider what the priorities of HMCTS are. Public health isn’t one of them.
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