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.
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.
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