England and Wales Court of Protection Decisions

COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 July 2018

Sir James Munby, President of the Court of Protection :

1. I have before me an application, dated 30 May 2018 though not lodged until later, issued on 20 June 2018 in the Family Division of the High Court of Justice by Desmond Maurice Allan Fitzgerald (Mr Fitzgerald). The application, which is supported by a witness statement by Mr Fitzgerald dated 4 June 2018, relates to a matter which is not in the High Court at all. It relates to certain costs orders against Mr Fitzgerald dated 22 and 24 March 2016 which I made in the Court of Protection, as President of the Court of Protection, in proceedings (95908524), to which Mr Fitzgerald was a party. Those proceedings related to Mr Fitzgerald's now deceased aunt A, a patient whose affairs were under the control of the Court of Protection until her death on 5 March 2018.^ Central to Mr Fitzgerald's application are the circumstances in which, in the course of those proceedings, SJ Lush, by an order dated 28 May 2013, had appointed her niece, C, to be A's deputy for property and affairs.
2. In order to understand what follows, it is necessary to record that at the same time (though I was not concerned with these matters at the time) Mr Fitzgerald was embroiled in acrimonious divorce and financial remedy proceedings brought against him by his wife in the Central Family Court: Catherine Akester v Desmond Maurice Allan Fitzgerald (ZC15D00078).
3. So far as relevant for present purposes, I need to refer to three judgments I gave in 2016. Two are judgments in the Court of Protection, the first on 10 August 2016 and the second on 18 August 2016, which explain why I made the orders dated 22 and 24 March 2016 and which are essential reading if the application now before me is to be properly understood: In the matter of A (A Patient); In the matter of applications by and against Desmond Maurice Fitzgerald [2016] EWCOP 38 (sub nom In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141) and In the matter of A (A Patient); In the matter of applications by and against Desmond Maurice Fitzgerald (No 2) [2016] EWCOP 39. The other is a judgment, also essential reading, I gave on 21 November 2016: Akester v Fitzgerald [2016] EWHC 2961 (Fam).
4. As anyone who reads those judgments will readily appreciate, Mr Fitzgerald is a far from typical litigant. As I said in my first judgment, In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141, para 2:

"Mr Fitzgerald has been unrelentingly pertinacious in pursuit of what he believes to be his aunt's best interests. Unhappily, his pursuit of that laudable endeavour has become obsessive and his desire to litigate (most of the time as a litigant in person) and to correspond with all and sundry has become compulsive. This obsessive compulsion is marked by the very large number of applications which Mr Fitzgerald has sought to make to the Court of Protection (at least 23 …) and by the enormous number of e-mails with which he has bombarded all and sundry since 2013."

5. Amongst the matters I had to deal with in that judgment, were applications by Mr Fitzgerald for the committal to prison of a solicitor, Ms Frances Hughes, for alleged contempt of court and for a wasted costs order against that solicitor's firm, Hughes Fowler Carruthers. I dismissed both applications. In relation to the first, I said this (para 40):

"In my judgment Mr Fitzgerald's application is, in all its aspects, misconceived, devoid of factual merit, in major part legally groundless and totally without merit. His allegations against Ms Hughes are scurrilous, fatuous and should never have been made. His application for her committal is a farrago of nonsense."

In relation to the second, I said this (para 47):

"… despite the vast amount of material Mr Fitzgerald has put before me, it is perfectly obvious that there is, as in other allegations he has made against her, no factual merit in these allegations against Ms Hughes, allegations which, like the others, are, in my judgment, scurrilous and fatuous and which should never have been made. I agree with [counsel's] characterisation of Mr Fitzgerald's evidence as "littered with allegations that are (i) unfounded, (ii) fanciful, (iii) scurrilous, (iv) lack any specificity of detail and (v) irrelevant". The simple reality is that Mr Fitzgerald has identified no legal or factual basis for any claim against Hughes Fowler Carruthers, whether for costs or otherwise."

6. In relation to another matter (C's application for costs against Mr Fitzgerald – see further below) Mr Fitzgerald filed a position statement of which I said this (para 18):

"Much of this position statement is irrelevant to anything I have to determine. It contains wild and scurrilous allegations against various people, including C, of "income tax fraud" and "criminal tax evasion", of which, Mr Fitzgerald asserts, Ms Hughes had "almost certain knowledge". He accuses Ms Hughes of "deliberate falsification" in her evidence to the court and invites me to refer her to the Attorney General for committal (which I unhesitatingly decline to do). Despite the vast amount of material put before me by Mr Fitzgerald, it is perfectly obvious that there is no factual merit in any of these allegations, in particular, in any of his allegations against C and Ms Hughes, allegations which, in my judgment, are scurrilous and fatuous and which should never have been made."

7. I went on to explain (paras 64-65) why on 22 March 2016 I had made an extended civil restraint order against Mr Fitzgerald to remain in effect until 21 March 2018.
8. In my third judgment, I said this (Akester v Fitzgerald [2016] EWHC 2961 (Fam), paras 18-19):

"18 … Mr Fitzgerald is making allegations of the utmost seriousness – contempt, dishonesty and attempted fraud – against three different solicitors. These allegations, largely un-particularised and, so far as the material Mr Fitzgerald has chosen to put before me allows me to judge, entirely devoid of merit, are scurrilous. Their pursuit in the manner in which Mr Fitzgerald has chosen to proceed is the plainest possible abuse of process.

19 Mr Fitzgerald's applications are devoid of merit. It is for others to judge whether my decision, as Mr Fitzgerald would have it, shows my unfitness for office or impacts adversely upon the reputation of either the Central Family Court or the Family Division. I shall continue to do my duty whatever insults Mr Fitzgerald may continue to throw at me."

9. As anyone who has read Mr Fitzgerald's voluminous emails will appreciate (the email traffic with me which he has generated since 2014 fills the equivalent of five lever arch files; the emails since my last formal involvement when I handed down my third judgment on 21 November 2016 fill the best part of 1½ lever arch files), they are characterised by hectoring, intimidating bluster and absurd and defamatory allegations against anyone, legal practitioner or judge, about whom he has conceived some cause for complaint. I take a few recent examples.
10. In an email to me on 7 June 2018, Mr Fitzgerald said:

"May I remind you that it is alleged against you that you have deliberately mismanaged this case in order to inhibit proceedings in your court against Denzil Lush of the Court of Protection under the Human Rights Act."

Later the same day in a further email, Mr Fitzgerald said:

"I trust I do not have to request JCIO to investigate your email correspondence.

Please now answer the substantive question."

My response by email the next day included this:

"As I have repeatedly made clear to you, I cannot give you advice."

11. The assessment of the costs which I ordered Mr Fitzgerald to pay is currently proceeding in the Senior Courts Costs Office (SCCO). This generated an email from Mr Fitzgerald to SCCO on 21 June 2018, copied by him to me, which included the following:

"Munby's judgement was vitiated by improper consideration of untrue and unsubstantiated assertions raised against me by my ex-wife Catherine Akester in her divorce proceedings …

In what is alleged to be an attempt to defend his position, Munby misrepresented proceedings in his court of 16 March 2016 in reported Judgement of 10 August 2016 …

It is most unfortunate that Master [X] has chosen to jeopardise her judicial career by her improper and dishonest intervention in this process of reconsideration. I trust she will take the appropriate steps to rectify this."

12. In a letter dated 22 June 2018 addressed to Chief Master Gordon-Saker, attached to an email from Mr Fitzgerald on 27 June 2018, which was copied by him to me, Mr Fitzgerald wrote:

"… case-management of this particular assessment has been so seriously mishandled that the reputation of SCCO for the fair and honest dispensation of justice is now in question.

… SCCO's reputation now comes into question through the review of the file conducted … by … Master [X].

… Notwithstanding Master [X]'s own personal knowledge that original paper assessment and orders were unsustainable … she has now directed that they stand as binding on the parties.

I regret to say there are some very serious questions as to Master [X]'s judicial integrity arising from her conduct in another ongoing detailed assessment in her court … I anticipate with sadness and regret that SCCO's reputation may suffer in consequence.

Please note this letter is copied to others concerned in Master [X]'s conduct."

13. I make clear that the only reason why I have redacted the Master's name is to prevent Mr Fitzgerald repeating these grossly defamatory remarks under the cloak of the privilege which attaches to this judgment.
14. I have referred above to the proceedings in the Central Family Court between Mr Fitzgerald and his wife. For present purposes what is relevant is an order made in those proceedings in October 2016 by Judge Y by way of enforcement of an order made for the sale of the former matrimonial home. On 27 June 2018, Mr Fitzgerald sent an email to Judge Y:

"You are guilty of the criminal offence of abuse or position as defined by Sec 4 of Fraud Act 2006 by:-

1) Ordering the destruction of my personal property on 3 October 2016

2) Ordering me to vacate my own freehold property without power to do so with the intention of causing me serious financial loss

3) Upholding decisions of District Judge [Z] which you knew to be based on fabrication, thereby intending me to experience financial loss.

You have no defence to these allegations which are all a matter of record in your court.

The only outstanding issue in advance or your referral to CPS for criminal prosecution is your motivation for your wrongdoing.

It is suggested that you were incited to your criminality by a desire to impede appeal and related allegations against a very senior judge, James Munby retiring President of Family Division and Court of Protection.

I will be requesting these allegations be investigated."

15. Mr Fitzgerald forwarded that email to me later the same day by an email which included this:

"My copies of my Appellant's Notices were destroyed in October 2016 along with the entirety of my personal possessions, including my computers, my clothing, all my personal chattels, and confidential legal and financial documentation relating to my late aunt [A].

This criminal destruction resulted from the abuse of position by a circuit judge in Central London Family Court, [Judge Y], who makes herself prosecutable in the criminal courts in consequence.

…

Please note that it is alleged [Y's] criminality may have been motivated by a desire to protect you in the very appeal process which you now question. If you choose to impede reconsideration any further, I will take this as confirmation of that allegation."

16. I record that in an email to me of 4 July 2018 Mr Fitzgerald said this:

"The continuation of detailed assessment of your wrong and unjust costs orders of 22 & 24 March 2016 is listed in SCCO for 11 July …

It is open to you to stay assessment in SCCO listed for next Wednesday, and also to stay execution of Master [X's] presumptive and prejudicial interim costs order. As the revocation of your recited costs orders is now inevitable, you should do both.

If assessment continues next Wednesday, I will construe this unjust and unfair development as supportive of the suggestion that you are the instigator of criminal wrongdoing by [Judge Y] and others.

I should add that a review of your approach to Respondent's evidence since this case first came before you in 2013 shows you to have consistently ignored, disregarded or unfairly excluded any evidence in any way damaging to Applicant [C] and her multitudinous legal representatives.

I believe the tragic case of my late aunt [A] will stand permanently to your indelible disgrace."

17. Even while I have been preparing this judgment, Mr Fitzgerald has continued to bombard me with hectoring and abusive emails. On 9 July 2018 he emailed me:

"… please be so good as to notify SCCO immediately that hearing listed for this Wednesday 11 July should NOT take place, as the underlying Costs Orders are now certain to be set aside."

I replied later the same day:

"… I make clear that I do NOT, even if I have power to do so, notify SCCO that the hearing listed for this Wednesday 11 July should not take place. That must be a matter for SCCO."

18. This produced further emails from Mr Fitzgerald the following day, 10 July 2018 (1314):

"A consequence of your pusillanimous decision not to intervene to stay tomorrow's hearing in Family Court 46 is that this hearing will now be principally dedicated to [C]'s utterly preposterous claim for £57,000 worth of costs in detailed assessment.

Not only is [C]'s and her legal representatives' honesty and integrity totally discredited, but the issue of proportionality in Court of Protection costs remains to be determined by your successor. This is due to your own equally pusillanimous refusal to align Court of Protection Rules on costs with CPR Amendment.

There are further important issues I should raise with you in advance of this hearing."

19. Then, a little later (1340), this:

"Now that it is established that you have known since 2016 that your wrong and unjust Costs Orders of 22 & 24 March 2016 were under appeal, it is appropriate to remind you of the initial Grounds of Appeal against you.

These are:-

1) You granted my appeal against SJ Lush's 2013 Costs Order but then proceeded to "exercise your discretion afresh" and re-imposed the identical Costs Order having both refused to consider and unfairly excluded all evidence relating to its original imposition

2) Court of Protection Rules permit you to make a Costs Order WITHIN Appeal Proceedings. They do NOT permit you to make a Costs Order against a successful Appellant AFTER his appeal has been allowed.

3) The "discretion" you "exercised" is granted by the Lunacy Act 1890. The Lunacy Act 1890 was repealed IN ENTIRETY by Sec 1 of the Mental Health Act 1959. The "discretion" you have claimed to have the power to "exercise" has not existed in English Law for over half a century.

In any other judge this "reasoning" would be symptomatic of merely stupidity and unfitness for office.

In your case, while it remains indicative of unfitness for office, there is no suggestion of stupidity, and other motives must be sought.

The only "authority" I am aware of who has ever referred to the "1890 Lunacy Act discretion on costs" is recent times is Denzil Lush.

[Leading counsel's] derisory submissions to you of 16 March 2016 may well originate from Lush, as it is difficult to conceive from what other source referral of a court to a long-repealed Act of the Victorian Era could derive.

If this were to prove the case, then you yourself may well have a case to answer under Sec 4 of the Fraud Act.

With this in mind, I will now be requesting JCIO to obtain and preserve all your email and court records on your retirement with a view to establishing the extent of your knowledge on this.

I trust you retain the judicial integrity to agree without demur to this.

Please confirm receipt of this email."

20. And then this (1348):

"Further to previous correspondence.

It is now your duty to refer [C] and her former solicitor (previously of record to your court) [XX – see below] to the Attorney General for committal for contempt in the Court of Protection by falsifying Statement of Truth.

I trust you will perform your judicial duty."

21. These remarkable effusions speak eloquently of Mr Fitzgerald. They speak for themselves. They neither need nor merit further comment.
22. It is a fact that, unfortunately, one cannot take anything Mr Fitzgerald says at face value. I need to draw attention to three examples.
23. The first relates to Mr Fitzgerald's characterisation of his current application, which he describes as "Application in reconsideration pursuant to undertaking of the President." In his witness statement he says:

"Munby originally confirmed he would reconsider his Costs Orders on being presented with new evidence in April 2017 … He reconfirmed it in March 2018, following the expiry of his unfairly imposed Extended Civil restraint Order on me … His reasons for making this confirmation will be fully set out to the Court of Appeal, if that should prove necessary. I do not believe they reflect the slightest credit on him."

24. I have never given Mr Fitzgerald any such undertaking or confirmation. On 19 April 2017 he sent me the following email:

"Please find attached COP9 Application Notice that you set aside all orders made by you in the matter of my aunt [A] (COP No:95908524) due to your misrepresentation of proceedings in your court in Reported Judgement of 10 August 2016.

In Reported Judgement you state that [C] did NOT accept that I was given no opportunity to address SJ Lush on costs on 15 May 2013 (mistakenly stated to be 28 May 2013). It is clear from the record of proceedings in your court that she DID, and you have misrepresented proceedings in your court in Judgement."

I responded on 20 April 2017 in the following terms:

"Thank you.

I will consider the application (i) once it has been properly issued in the court office and (ii) when you supply a copy of the "evidence attached" referred to in your draft application notice."

25. On 29 March 2018, in answer to an email which Mr Fitzgerald had sent me on 19 March 2018, I sent him an email in the following terms:

"You are again bombarding me with unsolicited emails, many, like this one, containing groundless and significantly inaccurate assertions.

I shall, of course, respond appropriately to any request for information or observations from [SCCO], the Court of Appeal (Criminal Division) or the Court of Appeal (Civil Division), but I do not propose to respond to any of your emails.

You must understand that silence on my part is not to be taken as agreement with anything you say.

I make clear that:

1 All the orders I have made stand; none, so far as I am aware, has been set aside by the Court of Appeal.

2 There is no application currently before me.

3 I have not said (as you assert in your email of 22 March 2018 (1228)) that I will reconsider my costs order. What I have said, as is clear from my email to you of 20 April 2017, is that "I will consider [your] application (i) once it has been properly issued in the court office and (ii) when you supply a copy of the "evidence attached" referred to in your draft application notice." So far as I am aware, you have taken neither step."

26. The second matter arises from Mr Fitzgerald's assertion in his witness statement that:

"Munby's orders of 22^nd and 24^th March 2016 are already subject to application for permission to appeal … No determination on these applications for permission to appeal has yet been made …"

This is simply wrong. Mr Fitzgerald issued three appellant's notices: B4/2016/1347, B4/2016/1436 and B4/2016/1470. By an order made on 24 August 2017 and sealed on 25 August 2017, McFarlane LJ refused permission to appeal in each case "on the basis that each application is 'totally without merit'." The Court of Appeal Office has confirmed to me that there are no live applications from Mr Fitzgerald in the Court of Appeal.

27. The third matter arises from an email sent to me by Mr Fitzgerald on 5 July 2018 in the following terms:

"I am astounded to discover that you have issued reported Judgement of 21 November 2016 in Akester v. Fitzgerald EWHC 2961 (2016) (Fam).

You have never had the courtesy to inform me of your Judgment pursuant to my application.

I note you accept in your reported Judgement that your Costs Orders of 22 & 24 March 2016 are under appeal.

I note also that you rely entirely on the terms of your 22 March 2016 ECRO to refuse any reconsideration of your costs orders.

I note further that you were aware as of November 2016 of the allegation that your judgement relating to these costs orders had been vitiated by inappropriate consideration of allegations against me made to DJ [Z] in Central London Family Court.

I trust that sufficient judicial integrity still remains to you to revoke your costs orders in the face of clear evidence that they were wrong and unjust."

28. In relation to this, I make three observations:

i) First, I sent the judgment to which he refers to Mr Fitzgerald by email on 21 November 2016 (1331). He responded by email almost immediately (1351): "Thank you for your Judgement attached received in the last few minutes. Full response will be made in due course."

ii) Secondly, the reference in that judgment (Akester v Fitzgerald [2016] EWHC 2961 (Fam), para 2) to the outstanding appeals was factually accurate as at that date. As mentioned above, the applications for permission to appeal were refused on 24 August 2017.

iii) Thirdly, I was of course aware (Akester v Fitzgerald [2016] EWHC 2961 (Fam), para 8) of the allegation that my judgment in relation to the costs had been vitiated in the manner suggested by Mr Fitzgerald. I dealt with this in my judgment (Akester v Fitzgerald [2016] EWHC 2961 (Fam), para 16), where I said that it "wholly fails to explain how or why this impacted either on the hearings before me or on my judgment, just as it wholly fails to explain how this can justify the relief being claimed by Mr Fitzgerald in his present application."

29. As I have said, in the course of the proceedings in the Court of Protection SJ Lush, by an order dated 28 May 2013, had appointed C to be A's deputy for property and affairs. In relation to this, I quote what I said in my first judgment, In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141, para 3:

"SJ Lush gave a written judgment. In it he recorded that between 7 March 2013 and 9 May 2013 Mr Fitzgerald had filed no fewer than nine applications with the Court of Protection. He recorded a number of allegations of very serious misconduct, including fraud and intentionally misleading the court, which Mr Fitzgerald had levelled against both C and the solicitors, MacFarlanes, then acting for her and against C's predecessor as A's deputy, A's sister B. In relation to that, SJ Lush said this: "There has been no effective challenge to C's competence or integrity. Mr Fitzgerald's allegations in this respect are simply bluff and bluster.""

30. I went on (para 6) to quote a further passage in the judgment of SJ Lush:

"This is a case in which the court is justified in departing from the general rule in rule 156 because of Mr Fitzgerald's conduct and the fact that he has not succeeded on any part of his case. Most of the issues he raised, pursued or contested had no bearing at all on the court's decision to appoint a new deputy for A and were simply a prolongation of his dispute with Macfarlanes. I find myself in agreement with the observations of the Deputy Chief Legal Ombudsman, when he said: 'I can see nothing in what you have said by way of reply having any bearing on the decision that has to be made.' The manner in which he made or responded to the application was, as [counsel] said, 'repetitive and vociferous', 'tantamount to harassment', and 'actionably defamatory'. The persistence with which he kept filing application notices, if not intentionally designed to disrupt and derail the litigation process, almost succeeded in having that effect.

… Mr Fitzgerald's conduct undoubtedly resulted in the costs of the proceedings being greater than they would otherwise have been and it would be unjust to expect them to be paid by A, as would be the position under rule 156. Accordingly, I order that the applicant's costs be assessed on the standard basis and that Mr Fitzgerald pay the applicant's assessed costs to the extent that they exceed £7,500 (including VAT). I have selected the sum of £7,500 as this is broadly the amount that I would have expected Macfarlanes to have charged if this application had been uncontested."

31. Mr Fitzgerald's appeal from that costs order came on for hearing before me in March 2016. The very detailed Bill of Costs put forward by C showed the total amount claimed as being £127,465·59 net, after deduction of the sum of £7,500 allowed by SJ Lush: see In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141, para 51. As I explained (para 27):

"I allowed the appeal and, exercising my discretion afresh, ordered Mr Fitzgerald to pay C's costs, in excess of £7,500, on the standard basis. I ordered Mr Fitzgerald to make an interim payment of £60,000 (inclusive of VAT) on account."

My reasons for coming to that decision were set out in detail in that judgment (paras 52-55) and need no repetition here. My order, dated 22 March 2016, is the first of the orders which Mr Fitzgerald now invites me to set aside.

32. The other order which I am invited to set aside, dated 24 March 2016, was made on the application of C in relation to various costs of the proceedings before me: see In the matter of A, paras 14-16, 18. It related (para 28) to the costs which I had reserved by orders dated 19 December 2013, 10 June 2014, 13 November 2014 and 20 January 2015. My decision, embodied in the order dated 24 March 2016, was (para 28) that:

"In relation to the costs reserved by the order dated 13 November 2014, I ordered Mr Fitzgerald to pay C's costs of the application dated 24 October 2014 on the standard basis. In relation to the costs reserved by the order dated 20 January 2015 I ordered Mr Fitzgerald to pay 50% of certain specified parts of those costs, again on the standard basis. I ordered Mr Fitzgerald by way of interim payment to pay £7,000 (inclusive of VAT) on account of the former and £16,000 (inclusive of VAT) on account of the latter."

I directed the remainder of C's costs to be paid out of A's estate. My reasons for coming to those decisions were set out in detail in my judgment (paras 57-62) and need no repetition here.

33. In his Application notice, Mr Fitzgerald, in response to the question "Are there any reasons why this application should not be dealt with on paper by a judge?", answered "No." I have accordingly dealt with his application on paper and without a hearing.
34. In his Application notice, Mr Fitzgerald identifies the order he is asking me to make as follows:

"President of Family Division James Munby to rescind his Costs Orders of 22 & 24 March 2016 on reconsideration of further evidence; or in the alternative grant permission for appeal of same orders to be heard by full Court of Appeal."

There can be no question of my giving Mr Fitzgerald the permission to appeal he seeks. As I have explained, his applications to the Court of Appeal for permission to appeal have already been dismissed. In relation to that, I am functus officio. The application which is properly before me, and to which I therefore turn, is for "reconsideration" of my orders on the basis of what Mr Fitzgerald says is "further evidence."^

35. That evidence is set out in the witness statement of Mr Fitzgerald dated 4 June 2018 to which I have already referred. To that statement, Mr Fitzgerald has exhibited a number of documents. These include various deeds in connection with family settlements relating in significant part to land in Ireland ("the Irish Land"), including land at Ballymena, the family being that of both A, C and Mr Fitzgerald: a Settlement dated 24 April 1919 (exhibit DF/7); a Deed of Partition and Exchange dated 20 October 1961 (exhibit DF/8); a Settlement dated 2 December 1963 (exhibit DF/5); and a Deed of Appointment dated 29 March 1976 (exhibit DF/6). Also included as exhibits are: Instructions to Chancery Counsel dated 15 January 1980 (exhibit DF/3); a 'Schedule to Corrective Account' submitted to HMRC in, it would seem, 1998 (exhibit DF/4); and a copy of exhibit MGJ1 to the witness statement of Matthew George Jenkins dated 1 June 2017 in the proceedings in the SCCO between C and Mr Fitzgerald (exhibit DF/9).
36. A further exhibit (exhibit DF/2) is an email sent on 12 April 2018 to Mr Fitzgerald by Suzanne Marriott of Charles Russell Speechlys LLP which reads as follows:

"Thank you for your email. As requested please find scanned copies of the following: [three Settlement Deeds each dated 22 February 1978, one relating to A]. We do not hold any antecedent deeds for these trusts. We understand from Macfarlanes that land was sold or purchased by tenants, and the proceeds invested in the shares or represented by the cash sums settled under the three 1978 Settlements.

We have spoken to Macfarlanes who are also checking their archives for copies of the deeds and will revert to us."

Adopting Mr Fitzgerald's terminology, I shall refer to the various trusts created by these three Settlement Deeds as "the 1978 Trusts."

37. In his witness statement, Mr Fitzgerald makes the following allegations:

i) In relation to C, he says "it is increasingly likely that [C] will be found to have acted in bad faith while … [A's] … trustee."

ii) In relation to C and XX (a former partner in the firm of Macfarlanes LLP), he says that they "deliberately misled the Court of Protection by dishonest instructions to Counsel, a misrepresentation of such seriousness criminal prosecutions may result." The version of facts they put forward was, he says, "false and fabricated." He describes C's evidence as "entirely false and dishonest." He characterises part of XX's evidence as "a bare-faced lie" and his evidence to SJ Lush as "intentionally falsified." He says that XX's version of events in relation to the 1978 Trusts is "wholly untrue" and "fraudulent."

iii) He says that A's two elder sisters had "jointly attempted to defraud" A.

iv) He says that SJ Lush in 2013 "manipulated procedure in his court so as to either disregard or exclude" the material upon which he relies in support of his allegations against C and XX, and that I "supported him [SJ Lush] in this manipulation of procedure throughout the appeal process." He continues: "Both judges have totally disregarded these important evidential documents, strongly indicative of where [A's] best interests lay, through procedural manipulation contrary to [A's] best interests." Warming to his theme, he continues:

"Both Munby and Lush have gone to the extremity of not only finding [C's] dishonest evidence to be entirely believable, but have awarded her her costs against for being in position to exhibit that dishonesty to them. The costs she claims are so exorbitant as to be fairly characterised as "outrageous", and are awarded in total disregard of the principles for costs awards in civil proceedings as set out in the "Jackson Reform" amendments to the Civil Procedure Rules of 1st April 2013. (It is to Munby's discredit that, as President of the court, it is his responsibility to ensure that Court of Protection rules on costs replicate the CPR, and that he has not done so.)"

v) In relation to me, Mr Fitzgerald adds this:

"Munby has been at considerable pains to denigrate everything I have said in Statement of Truth as "wild", "scurrilous" and "obsessive". If this were the case, it is Munby's duty to refer me to the Attorney General for committal for contempt of court or prosecution for attempting to pervert the course of justice. He has not done so because he was aware, even before the attached new evidence was admissible, that this was not the case. He has contented himself with awarding punitive costs against me (through highly questionable and allegedly manipulated procedure), which he is in a position to defend through personal contacts with other members of the high judiciary.

… Despite the statutory requirements on them, neither Lush nor Munby has had the slightest regard to [A] herself, as their exhibited Judgements show. Their sole interest appears to be vilifying myself as Respondent in the most pejorative terms. The personal vilification of a Respondent, without regard to the sworn evidence (or in overt denial of the sworn evidence), in proceedings where the subject may have been the victim of the longest period of unlawful deprivation of liberty in English legal history, may in the fullness of time prove to be an indelible stain on Munby's judicial reputation.

… It is to be hoped that he avails himself of what remains of his career to make some partial amend for his mishandling of the important case in the Court of Protection of the late [A]."

vi) In relation to the skeleton argument prepared by counsel, CC, instructed by Macfarlanes LLP to appear in 2013 before SJ Lush, Mr Fitzgerald says that:

"[CC's] "evidence" on behalf of Macfarlanes LLP can now easily be shown by reference to the genuine evidence of Exhibits DF/3 & 4 [the Instructions to Chancery Counsel dated 15 January 1980 and the 'Schedule to Corrective Account' submitted to HMRC] to be such falsehood and dishonesty as to be fairly described as a "farrago of lies". (Munby accuses me in Judgement of a "farrago of nonsense". It is to be hoped that Munby still retains sufficient judicial integrity to now accept that his assessment of my evidence as a "farrago of nonsense" is due to his "blind" acceptance of Macfarlanes' and Counsel's "farrago of lies".) Lush basis his Judgement on this inadmissible "farrago of lies"."

He continues:

"It is now Munby's duty, having set aside his Costs Orders in this case, to refer [CC] to the Bar Standards Board for disciplinary proceedings and request the Lord Chancellor and Ministry of Justice to investigate Lush's competence to hold a judicial appointment."

The focus of all these allegations against C, XX, CC and A's two sisters is Mr Fitzgerald's belief that there has been systematic skulduggery (my word) in relation to the Irish Land and the 1978 Trusts.

38. Thus far I have focused on Mr Fitzgerald's allegations. What is the evidence upon which he relies? That is to be found, he indicates, in his witness statement, where he says this:

"The new evidence … consists of two separate but equally significant strands:-

i) The admission made by Macfarlanes LLP to solicitor Suzanne Marriott that the so-called "1978 Trusts" … were settled from the proceeds of 'land sold or purchased by tenants' … Ms Marriott makes clear her information comes from Macfarlanes LLP … The effect of this admission is to show that both [C] and [XX] deliberately misled the Court of Protection as to the settlement of the "1978 Trusts", the assets subject to them, and the tax position of [A]'s trustees.

ii) … the documentary evidence of Macfarlanes LLP's close involvement in the sale or redistribution of the [family] Ballymena Estate throughout the period 1962 to 1997 and [C]'s actual ownership of [family] Ballymena Estate land. The effect of this evidence is to show that [C] and [XX] deliberately misled the Court of Protection by dishonest instructions to Counsel."

39. In relation to his allegations against C, Mr Fitzgerald begins with the Settlement dated 2 December 1963 (exhibit DF/5). It creates discretionary trusts in what were then fairly common form in favour of various members of the settlor's family (the settlor being A's father); both A and C were members of the class of beneficiaries in relation to whom the trustees were given typically wide discretionary powers. The Settlement was in evidence before both SJ Lush and, subsequently, me. In a witness statement dated 18 April 2013, prepared for the hearing before SJ Lush, C said this:

"Save for what has been said by [Mr Fitzgerald] in [his] Statement and in his correspondence …, I have no knowledge whatsoever of the 1963 Settlement … I do not know if I am a beneficiary of the 1963 Settlement … I cannot see how it is relevant to the Applications …"

Mr Fitzgerald, in his witness statement, says this:

"In any judicial process of investigation in any jurisdiction the simple fact of my being in a position to exhibit the [Settlement dated 2 December 1963] to Lush and Munby should have been sufficient to show on the balance of probabilities that [C's] evidence is entirely false and dishonest. She is a beneficiary of the trust, as is [A]; her father was trustee, as was a partner of Macfarlanes LLP …; and the nature of the trust itself (being a "storm-drain" trust whose purpose is to "siphon" assets from the 1919 … Entail [exhibit DF/7] into off-shore property companies outside of UK jurisdiction) would lead today to the criminal prosecution of those involved in setting it up under the Fraud Act 2006.

… It can now be shown that not only did [C] have full knowledge of the "1963 … Family Settlement", she actually owns in her own name landed property in Ballymena, Co. Antrim, Northern Ireland, transferred to her through it."

40. In relation to the latter point, Mr Fitzgerald refers to the following passage in the instructions to Chancery Counsel dated 15 January 1980 (exhibit DF/3):

"So far as the [D] share is concerned … one half of the investments and cash, and one half of the properties remaining unsold in Ballymena will be appointed to the three [D] children in equal shares absolutely, except that on the advice of Counsel that appointment will now be revocable."

C, I should explain, is one of the D children. Mr Fitzgerald continues:

"Here it is made clear that "one third" of the "[D] half" of the remaining … Ballymena Estate is to be given to [A] by appointment from trust, the trust being the 1963 … Family Settlement. I submit that the evidence of Exhibit DF/3 is so "damning" Munby has no option but to revoke his Costs Orders in advance of his retirement … I believe there can be no objective and unprejudiced observer who would not now conclude it [that is, [C's] and Macfarlanes LLP's original 2013 evidence to Lush] was falsified."

41. As is quite evident from what I have set out, the evidence adduced by Mr Fitzgerald does not begin to support, let alone to establish, his case against C. His allegations against C of bad faith, dishonesty, falsity, fabrication and misleading the court are utterly groundless. They have no foundation in reality and should never have been made.
42. Turning to the position of Macfarlanes and XX, Mr Fitzgerald invites me to compare what XX said in paragraphs 2.1 – 2.12 of his witness statement dated 18 March 2013 (what he calls "the Macfarlanes' version of the settlement of the 1978 trusts") and exhibits DF/2, DF/4, DF/5 and DF/6. He says:

"Reference to Exhibits DF/2, DF/5, DF/6 and DF/4 in that order shows that [XX's] and Macfarlanes' "version" of the settlement of the "1978 Trusts" is wholly untrue."

43. I can only say that neither an examination of that material, nor indeed what Mr Fitzgerald says in the next few paragraphs (paragraphs 24-28) of his witness statement, begins to make good that factual assertion, let alone Mr Fitzgerald's further assertion (paragraph 30) that XX's evidence to SJ Lush was "intentionally falsified."
44. An illuminating example of Mr Fitzgerald's way with evidence and submissions is to be found in his witness statement (paragraph 29:

"XX continues in his Witness Statement to assert that no former partner of Macfarlanes was ever a trustee (to his knowledge) of the "1963 … Family Settlement". It is fair to characterise this statement as a "bare-faced lie". [YY] was [XX's] predecessor as professional trustee of the "1978 Trusts". [YY] retired in 1984 to be replaced by order of the Court of Protection by another Macfarlanes partner [ZZ]. [ZZ] retired in 2006 to be replaced, again by order of the Court of Protection, with Macfarlanes partner [XX]. There is no realistic doubt that [XX] has full knowledge of all [YY's] activities …"

How XX's knowledge of the trusteeship of the 1978 Trusts is said to establish that his denial of knowledge of the trusteeship of the 1963 Settlement is a "bare-faced lie" is not explained by Mr Fitzgerald.

45. Again, in relation to XX, as in relation to C, it is quite evident from what I have set out that the evidence adduced by Mr Fitzgerald does not begin to support, let alone to establish, his case against XX. His allegations against XX of dishonesty, falsity, fabrication, lying, misleading the court and fraud are utterly groundless. They have no foundation in reality and should never have been made.
46. In relation to CC, Mr Fitzgerald, having referred to paragraphs 21-22 of CC's skeleton argument dated 10 May 2013, says in his witness statement:

"[CC] claims that no-one at Macfarlanes has been involved in or has or had any knowledge of sales of property belonging to the … Ballymena Estate in Northern Ireland. The most cursory reference to Exhibits DF/3 and DF/4 shows this "evidence" to be exactly [a] "farrago of lies" …"

This is not in fact what was said in the skeleton argument, the relevant passage (in paragraph 21) reading as follows:

"Administration of [A's] assets in Northern Ireland appears never to have been the responsibility of [a named relative of A], nor do [C's] advisers believe that any current partners or employees of Macfarlanes have been responsible for these properties."

47. Again, in relation to CC, as in relation to C and XX, it is quite evident from what I have set out that the evidence adduced by Mr Fitzgerald does not begin to support, let alone to establish, his case against CC. His allegations against CC of falsehood, dishonesty and putting forward a farrago of lies and nonsense are utterly groundless. They have no foundation in reality and should never have been made.
48. I accordingly dismiss Mr Fitzgerald's application. It is, in all respects, totally without merit. I decline to refer CC to the Bar Standards Board. I decline to request either the Lord Chancellor or the Ministry of Justice to investigate SJ Lush. There is no conceivable basis for doing any of these things.
49. On 12 July 2018, at the point when this judgment was almost complete, I received from Mr Fitzgerald a further email:

"I should inform you that I will be applying for Judicial Review of Master [X] of SCCO and a Quashing Order on her detailed assessment pursuant to your Orders. The grounds are apparently intentional misconstruction of "Exhibit MGJ/1" and other displays of manifest prejudice in favour of Receiving Party.

"Exhibit MGJ/1" is an exhibit of record in Master [X's] court. It is also now Exhibit DF/9 in your court on application for reconsideration of the Costs Orders assessed my Master [X].

An important issue has arisen attaching to Exhibit DF/9 relating to Application under CPR 44.11 to Master [X]. As DF/9 is now also an exhibit to your court I believe it is appropriate that you consider this issue immediately, in advance of application to the Administrative Court. I believe this to be especially true in view of your forthcoming retirement.

Pages 203-5 of "Exhibit MGJ/1" purport to be the ten pages of documentation stolen from my home 23 Medburn Street on or before 9 March 2016, a theft reported to police on your instruction. If these ten pages of documentation had been available to you at hearings on 15, 16 & 22 March 2016, there is little doubt that you would have found against [C] and her solicitor Frances Hughes on all issues. There are, of course, questions as to why you did not direct Matthew Jenkins to disclose them at the time pursuant to his undertaking to you to do so.

Only Pages 203 and 204 are likely to be a part of the 10 Page documentation originally exhibited to SJ Lush in December 2015 and stolen in March of the following year. Page 205 is clearly from different documentation, and can be shown to be so.

Mr Jenkins affects to believe he has supplied the complete documentation. He has not.

I will now be applying to you to issue an "Unless Order" for the production of these documents which are central to your fair and just reconsideration of your Costs Orders of 22 & 24 March 2016 in favour of [C]. I would hope to have Application Notice and Draft Order submitted to you by Monday coming.

Also, it is noteworthy that the present situation bears many similarities to the circumstances of your issuance of Reported Judgement EWHC 2961 [2016] (Fam). If, as you state, you are now going to hand down Judgement on my application for reconsideration, I would request:

1) You inform me that you are doing so

2) You do not do so until you have had reasonable time to consider this further application."

50. Nothing in this begins to explain why it is said that, if these ten pages of documentation had been available to me in March 2016, I would have found against C and her solicitor Frances Hughes on all issues, or, indeed, on any of the issues then before me.
51. In my judgment, there is no reason at all why I should not now deliver this judgment.
52. If Mr Fitzgerald wishes to make the further application he refers to, it can be considered on its merits in due course. His indication of his intention to issue the application is no reason to defer this judgment.

Note 1    For internal record-keeping purposes within the office of the Clerk of the Rules, and as indicated by the inclusion in the number of the figure 9, the case was allocated a Family Division reference number: FD13P90056. But the case has never been transferred to the Family Division and remains in the Court of Protection.     [Back]

Note 2    I do not take up time considering whether Mr Fitzgerald’s “further evidence” is such as to entitle him to pursue his application, and it should not be assumed that I think it is. It is nonetheless convenient in the circumstances to proceed on the assumption that it is and, accordingly, to address his application on the merits and having regard to all the evidence he wishes me to consider.    [Back]