|Neutral Citation  NIMaster 2||Ref:|
|Judgment: approved by the Court for handing down||Delivered:||16/3/11|
|(subject to editorial corrections)|
Introduction The Plaintiff, who appears as a litigant in person, has initiated civil proceedings against the defendant in which he pursues an award of £40 million in personal damages together with the sum of £1 billion in damages on behalf of members of the PSNI whom, he asserts, have suffered insults from Strathclyde Police.
 The basis of the plaintiff's claim is not entirely clear from the endorsement on the Writ. It has its origin in a criminal prosecution of the plaintiff in Scotland following an investigation by Strathclyde Police. As a result of oral submissions made by the plaintiff, the essential core of the plaintiff's complaint against the police may be, or may include, torts of malicious prosecution and false imprisonment.
 The background to this application is as follows. On 29 August 2007 the plaintiff issued his Writ. On 14 September 2007 Master McCorry granted an order permitting the defendant to enter a conditional appearance. On 18 January 2008 the defendants issued a summons seeking to strike out or stay the plaintiff's action. On 22 February 2008, following a hearing at which the plaintiff did not appear, I granted an order striking out the endorsement on the Writ on the ground that it disclosed no reasonable cause of action. On 23 September 2010 the plaintiff issued a summons seeking that my order of 22 February 2008 be set aside on the basis that the defendants' summons had been served at an address at which he did not live and hence he had had no notice of the application and had had no opportunity to be heard prior to the making of the order. Accordingly, on 29 November 2010, I set aside my order of 22 February 2008 and held a contested hearing on the issue of whether the plaintiff's action should be struck out. As a result of those submissions I granted an order striking out the plaintiff's action on the ground that it disclosed no reasonable cause of action. On appeal, Mr Justice McCloskey remitted the matter to me under section 22(b) of the Interpretation Act (Northern Ireland) 1954 on the grounds, inter alia, that there was a risk that some of the evidence presented on appeal had not been presented at the original hearing. In his judgment Mr Justice McCloskey indicated that he considered that, in the event of essentially the same outcome being reached, written reasons for such a decision would be desirable.
 On behalf of the defendants Mr McAteer argued that the position before me was that my order of 22 February 2008 still stood and that there were two approaches which could be adopted :
(i) I could set aside my order of 22 February 2008 on the basis that the defendants' summons had been served at an address at which he did not live and hence he had had no notice of the application and had had no opportunity to be heard prior to the making of the order and hear the matter afresh.
(ii) I could conclude that such was the delay between the plaintiff discovering that an order had been made and his issuing of a summons that I ought not to set aside the order initially but rather hear the plaintiff's submissions and, only if he was successful in mounting an argument that merited his action continuing, should I set aside the order. Mr McAteer acknowledged that the courts regularly allowed litigants in person a greater degree of latitude than might be accorded to represented defendants. He also conceded that the plaintiff had been in correspondence with the court office for some time before issuing his summons to set aside and might not have appreciated the importance of issuing a summons as soon as possible. After hearing submissions I concluded that I would, in the exercise of my discretion, adopt the first approach, set aside the order of 22 February 2008 and hear the matter afresh.
 Mr McAteer then applied to amend the defendants' summons in certain technical respects. The plaintiff had no objections to this course of action. The summons before the court therefore applied for an order :
(i) Striking out the Writ or the endorsement on the Writ on the grounds that the writ disclosed no reasonable cause of action or that it is otherwise scandalous, frivolous or vexatious contrary to Order 18 Rule 19 and or the inherent jurisdiction of the court;
(ii) Setting aside the Writ pursuant to Order 12 Rule 8 or striking out or staying the proceedings under the inherent jurisdiction of the court on the grounds that the court has no jurisdiction to hear or determine the plaintiff's claim whether pursuant to the Civil Jurisdiction and Judgments Act 1982 or at all.
(iii) Setting aside the Writ or service of the Writ or declaring that the Writ has not been duly served pursuant to Order 12 Rule 8 on the grounds that the Writ was not properly served upon the defendants who are outside the jurisdiction and in particular that it was served contrary to the provisions of Order 11.
No Reasonable Cause of Action The plaintiff's Writ is a handwritten document which in some instances is difficult to read. Mr Ellis, on behalf of the Crown Solicitor, exhibited to his grounding affidavit a typewritten version of the endorsement which reads as follows :
"Strathclyde Police (Scotland) having been found guilty in the Sherriff Court of Law, Graham Street, Airdrie Scotland of Incitement of concocted State of Fear and Alarm and Breach of the Peace Charges, conspiring to imprison, Unlawful harassment, Breach of the Official Secrets Act and other charges, against William John Morrow and others and said Strathclyde police, Scotland are now commanded to make appearance at the Royal Courts of Justice, Supreme Courts, sitting in the High Court of Justice, Belfast, Northern Ireland
Chief Constable John Orr, 173 Pitt Street, Glasgow G2 4JS, Chief Superintendent Norman Gibb, 173 Pitt Street, Glasgow, Chief Superintendent Ian Wishart, Whittington Street, Coatbridge, Inspector David McIvor, Airdrie Police Station, Anderson Street, Airdrie, Inspector Hughes, Airdrie Police Station, Anderson Street, Airdrie, Constables Ballantyne, Callandar, McCullough, Barry, Cherry, Alexander and two others who arrested me in June 1998, and two other names to be supplied by Inspector David McIvor, Airdrie Police Station, Anderson Street, Airdrie, Scotland.
For the Right Honourable Sir Brian Francis Kerr, Knight Lord Chief Justice of Northern Ireland to conclude all matters on behalf of all indictments against Strathclyde Police, Scotland"
The plaintiff indicated at the hearing that Mr Ellis had misread and misspelt some of the names set out in his typed version of the endorsement. That is not an issue on which anything in this application turns as this application is concerned with more general matters. Mr McAteer argued that the endorsement on the Writ does not suggest any cause of action understood by the law of Northern Ireland and that it is simply a recital of alleged facts which does not ground the action in any meaningful sense.
 Order 18 Rule 19 of the Rules of the Court of Judicature provides :
"(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1)(a)." The purpose of the striking out provisions is essentially to protect defendants from hopeless litigation. But it may not be invoked to deprive plaintiffs of their right to bring an arguable matter before the courts.
 Mr McAteer referred me to Lonrho v Al Fayed  1 AC 448 in which the court held that, on an application to strike out an action on the basis that it discloses no reasonable cause of action, the cause pleaded must be unarguable or almost incontestably bad.
 In O'Dwyer and Others v Chief Constable of the Royal Ulster Constabulary  NI 403 the Court of Appeal for Northern Ireland reviewed the authorities on the test to be applied in such applications. It held that the summary procedure for striking out pleadings was only to be used in "plain and obvious" cases; it should be confined to cases where the cause of action was "obviously and almost incontestably bad"; and that an order striking out should not be made "unless the case is unarguable".
 The Court of Appeal in O'Dwyer quoted Sir Thomas Bingham in E (A Minor) v Dorset CC  2 AC 633 at 693-694, a passage approved by the House of Lords:
"I share the unease many judges have expressed at deciding questions of legal principle without knowing the full facts but applications of this kind are fought on ground of a plaintiff's choosing, since he may generally be assumed to plead his best case and there should be no risk of injustice to plaintiffs if orders to strike out are indeed made only in plain and obvious cases. This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition) or in any way sensitive to the facts, an order to strike out should not be made. But if after argument the court can be properly persuaded that no matter what (within the reasonable bounds of the pleading) the actual facts the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached." In reaching a determination as to whether the test for striking out on the ground that there is no reasonable cause of action is satisfied, the court is confined to consideration of the pleadings alone. The facts alleged in the endorsement are assumed, for the purpose of the application, to be correct. Order 18 Rule 19(2) prohibits the court from consideration of evidence offered by a party to supplement the averred facts.
 As the plaintiff appeared in person I indicated to him that, in a civil action where a plaintiff alleges he has been wronged by a defendant, the plaintiff typically makes it clear to the defendant and the court that the claim falls under one or more of the usual headings which classify such alleged conduct. I explained to him that these "labels" or categories were important and appeared to be missing from his endorsement. I explained that while underlying allegations of fact were present in the endorsement, the defendants were now seeking that he take one further step and describe what category or categories of civil wrong it was that he alleged those facts amounted to.
 The plaintiff submitted that I should dismiss the defendants' application on the basis that his Writ was clear and has been approved by, or on behalf of, the previous two holders of the office of Lord Chief Justice of Northern Ireland. He argued this on the basis that he had received two pieces of correspondence from the Lord Chief Justice's Office. The first of these is a letter dated 26 September 2000 from the Principal Secretary to the Lord Chief Justice :
"The Lord Chief Justice has passed me your most recent letter in which you again argue that Strathclyde Police, against whom you seek to issue a Writ of Summons, should bear the court fee for its issue.
It is up to the person to bring an action to pay the Writ fee. If you are successful you would of course expect to recover the fee from the defendant along with you other costs, subject to any other order as to costs the court might make. I should also mention the possibility that Legal Aid might be available to you to help cover the fee at this stage, a point on which you may wish to consult your solicitor.
But the Lord Chief Justice simply has not the power to order, before your case has been considered by the Courts, that Strathclyde Police should pay your Writ fee. I am afraid that that is not the way the system works.
The second letter is dated 17 September 2007 :
"Thank-you for your letter of 4th September to the Lord Chief Justice. It has been passed to me for reply. I do not accept the plaintiff's argument that his Writ has been approved by the previous two holders of the office of Lord Chief Justice. The argument is flawed on a number of levels. The functions of the Lord Chief Justice for Northern Ireland are many and varied. They may, for convenience, be divided into a number of categories. They might be said to include :
I note that your writ has now been issued. Your case will be assigned to a judge in due course, in the normal manner. It will not necessarily be heard by the Lord Chief Justice. Please note that any papers relating to your case should be lodged with the Central Office, Royal Courts of Justice, Chichester Street, Belfast rather than the Lord Chief Justice's Office.
Yours sincerely "
(i) Judicial functions : those functions carried out when the Lord Chief Justice sits in a judicial capacity either on his own or as a member of the Court of Appeal for Northern Ireland;
(ii) Representative functions : as head of the judiciary in Northern the Lord Chief Justice may, for example, under section 6 of the Constitutional Reform Act 2005 lay before the Northern Ireland Assembly written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in Northern Ireland;
(iii) Administrative functions : the Lord Chief Justice carries out a wide range of administrative functions including for example giving directions regarding at which court venues and on which dates particular types of court business shall be carried on;
(iv) Ceremonial functions : the Lord Chief Justice presides over the call of newly qualified barristers at the opening of the legal year;
(v) Pastoral functions : the Lord Chief Justice, as President of the Courts of Northern Ireland, is responsible under section 12 of the Justice (Northern Ireland) Act 2002 for the maintenance of appropriate arrangements for the welfare of the judiciary of Northern Ireland within the resources made available by the Lord Chancellor.
While the particular descriptions and exact scope of these categories may be open to debate, the principle that not everything done by the Lord Chief Justice is a judicial act is beyond peradventure. Even assuming that the two letters set out above are to be considered as correspondence from the Lord Chief Justice (as opposed to correspondence from civil servants), I am satisfied that the two letters fall into the category of having been written as part of the Lord Chief Justice's administrative functions. They do not amount to a judicial determination of the validity of the Writ or its correctness under the Rules of the Court of Judicature. This is an inevitable conclusion given that judicial determinations in civil proceedings possess certain features : for example an initiating document posing the issue to be determined by the court; a formal consideration of an issue affecting an individual's rights and interests by a judicial office holder (whether ex parte or inter partes) whereby relevant legal principles are applied to a factual context; and an outcome of a formally drafted court order containing the court's ruling. In R v Commission for Racial Equality, ex p Cottrell & Rothon (a firm)  1 WLR 1580 at 1587 Lord Lane CJ said:
"It seems to me that there are degrees of judicial hearing, and those degrees run from the borders of pure administration to the borders of the full hearing of a criminal cause or matter in the Crown Court. It does not profit one to try to pigeon-hole the particular set of circumstances either into the administrative pigeon-hole or into the judicial pigeon-hole. Each case will inevitably differ, and one must ask oneself what is the basic nature of the proceeding which was going on here."
The basic nature of what occurred in this case with regard to the plaintiff's correspondence does not justify the label "a proceeding". In the circumstances of this case there was correspondence rather than an initiating document; the correspondence was dealt with by a civil servant rather than to a judicial office holder; no individual's rights or interests were being adjudicated upon; and the outcome was a letter not a court order. Accordingly, what occurred cannot be characterised as a judicial act. After hearing submissions on the issue of whether the endorsement on the Writ disclosed a reasonable cause of action, I indicated to the plaintiff that I did not believe that it did. I invited him to consider asking me to allow him to amend his Writ in such a way so that it might disclose a reasonable cause of action. After reflecting on this, he declined to seek an amendment.
 I also reminded the plaintiff that Mr Justice McCloskey had, at paragraph 10 of his written judgment, expressed the obiter view that seeking an award of £40 million damages for himself personally, and £1 billion on behalf of members of the PSNI, seemed plainly and manifestly unsustainable and therefore embraceable by Order 18 Rule 19. I explained that the Northern Ireland courts had at no time in the past, as far as I was aware, ever awarded a plaintiff an amount of damages as large as £40 million. I therefore invited the plaintiff to ask me to allow him to amend his Writ and seek lower amounts of damages. After reflecting, the plaintiff expressed the view that he believed the amounts of damages sought to be appropriate and therefore declined to make an application to amend his Writ.
 Pleadings may suffer from various degrees of defectiveness. Paragraph 18/19/13 of "The Supreme Court Practice 1999" ("The White Book") states that where a pleading is defective only in not containing particulars to which the other side is entitled, an application should be made for particulars and not for an order to strike out the pleading. It notes that even a serious want of particularity in a pleading may not justify striking out if the defect can be remedied and that defect is not the result of a blatant disregard of court orders and cites British Airways Pension Trustees Limited (Formerly Airways Pension Fund Trustees Limited) v Sir Robert McAlpine & Sons Limited & ORS 72 B.L.R. 26 (CA) as authority for the proposition. That decision also emphasises that the basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it and that pleadings are not a game to be played at the expense of the litigants, nor an end in themselves, but a means to the end, and that end is to give each party a fair hearing.
 In this case, the inadequacies of the endorsement amount to a major defect. Certainly the defendants do know the general factual circumstances which gives rise to the grievance which the plaintiff possesses. They do not, however, know the nature of the case which they must defend themselves against. When the wording of the endorsement is considered, which tort or torts are being alleged : false imprisonment, malicious prosecution, misfeasance in public office, harassment, or negligence in respect of the conduct of a police investigation? In the face of a litigant who, having had the difficulties with his pleading explained to him, has declined to seek leave to amend, the court is left with no alternative but to strike out the endorsement on the Writ on the basis that it discloses no reasonable cause of action. I therefore do so.
No Jurisdiction to Hear or Determine the Claim The defendants also submit that the court has no jurisdiction to hear the plaintiff's claim.
 The territorial jurisdiction of courts in the United Kingdom is governed by section 16 of the Civil Jurisdiction and Judgments Act 1982 and Schedule 4 thereto. This legislation essentially sets out which courts have jurisdictions to hear which civil proceedings. Section 16 provides :
"16.(1) The provisions set out in Schedule 4 (which contains a modified version of Chapter II of the Regulation) shall have effect for determining, for each part of the United Kingdom, whether the courts of law of that part, or any particular court of law in that part, have or has jurisdiction in proceedings where-
(a) the subject-matter of the proceedings is within the scope of the Regulation as determined by Article 1 of the Regulation (whether or not the Regulation has effect in relation to the proceedings); and
(b) the defendant or defender is domiciled in the United Kingdom or the proceedings are of a kind mentioned in Article 22 of the Regulation (exclusive jurisdiction regardless of domicile)….
(3) In determining any question as to the meaning or effect of any provision contained in Schedule 4 -
(a) regard shall be had to any relevant principles laid down by the European Court in connection with Title II of the 1968 Convention or Chapter II of the Regulation and to any relevant decision of that court as to the meaning or effect of any provision of that Title or that Chapter; and
(b) without prejudice to the generality of paragraph (a), the reports mentioned in section 3(3) may be considered and shall, so far as relevant, be given such weight as is appropriate in the circumstances.
(4) The provisions of this section and Schedule 4 shall have effect subject to the Regulation, the 1968 Convention and the Lugano Convention and to the provisions of section 17."
The relevant part of Schedule 4 to the 1982 Act provides :
1. Subject to the rules of this Schedule, persons domiciled in a part of the United Kingdom shall be sued in the courts of that part.
2. Persons domiciled in a part of the United Kingdom may be sued in the courts of another part of the United Kingdom only by virtue of rules 3 to 13 of this Schedule.
3. A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued-
(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;
(c) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
(d) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;
(e) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;
(f) as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the part of the United Kingdom in which the trust is domiciled;
(g) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question-
(i) has been arrested to secure such payment; or
(ii) could have been so arrested, but bail or other security has been given;
provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage;
(h) in proceedings-
(i) concerning a debt secured on immovable property; or
(ii) which are brought to assert, declare or determine proprietary or possessory rights, or rights of security, in or over movable property, or to obtain authority to dispose of movable property, in the courts of the part of the United Kingdom in which the property is situated." The effect of these provisions is that the Chief Constable of Strathclyde and the other defendants may be sued in the part of the United Kingdom in which they are domiciled (paragraph 1 of Schedule 4) or, in respect of torts committed by them, in the courts where those torts were committed (paragraph 3(c) of Schedule 4). Sections 41 - 46 of the 1982 Act define domicile for the purpose of deciding whether a person is domiciled in the United Kingdom or in a particular part of the United Kingdom. In respect of an individual, he is domiciled in a particular part of the United Kingdom if and only if he is resident in that part and the nature and circumstances of his residence indicate that he has a substantial connection with that part of the United Kingdom. In respect of a corporation or an association, section 42 provides that such an entity is domiciled where it has its registered office or its central management and control. The plaintiff accepted during the hearing that the defendants are all domiciled in Scotland and the torts were alleged to have been committed in Scotland.
 The plaintiff offered two arguments in reply to the defendants' submissions. Firstly, he argues that the proceedings which he has commenced fall within paragraph 3(d) of Schedule 4 to the 1982 Act. This is, in my view, plainly a misreading of paragraph 3(d). The High Court in Northern Ireland is not seized with criminal proceedings in respect of which there is an associated civil claim for damages. The proceedings do not therefore fall within paragraph 3(d). Secondly, he argues that the correspondence dated 26 September 2000 and 17 September 2007 does not inform him that there is no jurisdiction to hear his claim; rather they say the complete opposite. He therefore argues that the Lord Chief Justice has accepted that the courts in Northern Ireland do have jurisdiction. I reject this argument for the reasons set out above that the correspondence does not amount to a judicial determination of law or fact.
 Having reached the conclusion that, by virtue of the Civil Jurisdiction and Judgments Act 1982, the courts in Northern Ireland have no jurisdiction to hear the plaintiff's claim, the court therefore sets aside the plaintiff's Writ under Order 12 Rule 8.
Writ not Properly Served The third element of the defendants' application is that, pursuant to Order 12 Rule 8, they seek the setting aside of the Writ or service of the Writ, or a declaration that the Writ has not been duly served, on the grounds that the Writ was not properly served upon the defendants who are outside the jurisdiction and in particular that it was served contrary to the provisions of Order 11. The essential argument in this element of the application is that as the defendants were all outside the jurisdiction of Northern Ireland, the plaintiff required the leave of the court under Order 11 Rule 1 before serving the Writ upon them.
 In the event that the decision that the courts in Northern Ireland have no jurisdiction to hear the plaintiff's claim is correct, then this submission does not fall to be decided. If I am incorrect on the jurisdiction point, then the point does fall to be decided.
 The plaintiff's argument in respect of this submission is that the Lord Chief Justice was effectively asked for leave to accept and serve the Writ. He argues that the correspondence dated 17 September 2007 states :
"I note that your writ has now been issued. Your case will be assigned to a judge in due course, in the normal manner."
The plaintiff also referred me to two other letters in support of his argument. Firstly, a letter dated 21 December 2009 from a member of staff in the Lord Chief Justice's office :
"I acknowledge receipt of your letters dated 12 November and 16 November, and your Christmas card to the Lord Chief Justice and his staff.
In your letter dated 12 November you seek information about the setting down date for your Queen's Bench action. As you are the plaintiff in this action, you are responsible for applying for a setting down date. May I suggest that you contact Jonathon Duke in the Central Office, Royal Courts of Justice, if you have any further queries about your court case.
Secondly, a letter dated 20 April 2010 :
"I acknowledge receipt of your letter dated 20 March. Your comments have been noted. The plaintiff submits that these pieces of correspondence do not inform him that his Writ has not been issued in the proper manner and that he is therefore entitled to infer that his Writ is valid and correct in respect of its form. For the reasons set out above I conclude that the correspondence is not indicative of a judicial determination having taken place.
 If it were the position that the Northern Ireland courts had jurisdiction to hear the plaintiff's claim, I would therefore have granted the defendant's application under Order 12 Rule 8 to set aside service of the Writ on the ground that the plaintiff had not sought leave under Order 11 Rule 1 to serve the Writ outside the jurisdiction.