England and Wales High Court (Administrative Court) Decisions

The Lord Chancellor’s Direction

“I, THE RIGHT HONOURABLE REGINALD EDWARD, BARON DILHORNE, do hereby DIRECT that the Official Solicitor to the Supreme Court of Judicature do review all cases of persons committed to prisons for contempt of Court, do take such action as he may deem necessary thereon and do report thereon quarterly on the 31^st day of January, the 30^th day of April, the 31^st day of July and the 31^st day of October in every year.”

As can be seen the Direction falls into three parts. In the first instance the Official Solicitor is under a duty (“I ... DIRECT that the Official Solicitor ... do review all cases”) to “review all cases of persons committed to prisons for contempt of Court”. Thereafter, and having reviewed the case, the Official Solicitor is under a duty to exercise what is plainly a discretion (“I ... Direct that the Official Solicitor ... do take such action as he may deem necessary thereon”). Finally, though nothing turns on this for present purposes the Official Solicitor is under a duty to report quarterly on what he has been doing.

“to perform with respect to the Supreme Court generally the duties which he has hitherto performed with respect to the late High Court of Chancery including the duties imposed by the [Court of Chancery Act 1860] with reference to prisoners in contempt and also such other duties analogous to those which he ... has so performed as aforesaid as the Lord Chancellor shall from time to time direct.”

Section 84 of the 1873 Act, supplemented by the Official Solicitor Act 1919, was in due course replaced by sections 110-114 and 129 of the Supreme Court of Judicature (Consolidation) Act 1925.

“The Official Solicitor shall have such powers and perform such duties as may for the time being be conferred or imposed on the holder of that office .... by or in accordance with any direction given (before or after the commencement of this Act) by the Lord Chancellor.”

Mr Harris’s committal

“is forbidden, whether by himself or by instructing or encouraging any other person, to harass, molest or interfere with [his former wife].”

On 1 May 1997 that order was amended so as to substitute the word “pester” for the word “molest”.

“not (until release by this Court herefrom)

(1) deliberately to follow [his former wife], the mother, and/or the children, whether by car, on foot or otherwise

(2) to enter or attempt to enter [the mother’s house in Plymouth] or the precincts thereof

(3) to loiter outside the said property or (whether in a car or otherwise) at any point along the route of the children to and from school.”

Paragraph (15) of Wilson J’s order made it clear that this undertaking was without prejudice to the injunction contained in Judge Wigmore’s order of 14 April 1997, which was to continue in force.

(i) Contempts (1)-(10) were based on findings of conduct by Mr Harris in M — Road (contempts (1)-(4), (6)), G — Road (contempts (5), (7), (9)) and A — Close (contempts (8), (10)). They all involved him “harassing” the mother.

(ii) Contempts (11)-(13), (16)-(21), (24)-(25) and (27)-(30) were based on findings that Mr Harris “loitered along the route of the children to school, namely in M — Road” (contempts (11)-(13), (16), (18)-(19), (21), (24)-(25), (27), (29)-(30)) or “in G — Road” (contempts (17), (20), (28)). Whilst so loitering he did various other things “thereby also harassing” the mother.

(iii) Contempts (14)-(15), (23) and (26) were based on findings that Mr Harris “loitered along the route of the children to school, namely in M — Road” (contempts (14), (23), (26)) or “in G — Road” (contempt (15)).

(iv) Contempt 22 was based on findings that Mr Harris “deliberately followed” the mother down M — Road and did other things “thereby also harassing” the mother.

“During March 1997 the father admits that he was deliberately parking along the route of the children to school, waiting for them to pass and then waving to them. Late in March the father left Easter Eggs for the children. He also left them a letter in which he said “I am rushing back to court so as to get things back to normal as soon as possible. See you soon.” Such, then, is the background to the injunction made by Judge Wigmore on 14^th April and the undertaking accepted by me on 15^th May.

The father admits that, in the month between the date of the injunction and the date of the undertaking, he deliberately laid in wait for the children as they travelled to and from school and, when they passed, waved to them. He says, however, that following the date of the undertaking, his presence along their route to school at the time of their passage was entirely accidental. His admission of events prior to 15th May seems to me to be a clear admission of breaches of the injunction not to harass the mother. I am satisfied that his lying in wait and waving amounts to harassment of the mother. The father recognised as much when, early in May, he wrote the anonymised letter to the local newspaper saying that the injunction had been issued “because I waved to my children on their way to school” and, protesting that he now risked imprisonment, “for waving them off to school.” I find that there were ten specific such breaches, which must be set out one by one in any order that I make.

I turn to the disputed matters allegedly occurring after 15^th May.

On 16^th July the mother swore an affidavit testifying, excluding hearsay allegations and other allegations which it is unnecessary to address, to at least twenty identified occasions after 15^th May when the father had been visible on foot (and on three occasions in his car) when she and the children had passed by car to school, and averring that he had on many of the occasions waved, blown kisses and grinned. The mother filed two corroborative statements or affidavits: the first a statement by a police sergeant who by car had followed the mother and children to school on 7^th July and had seen the father en route, waving to the children and opening his mouth as if calling out; and the second, an affidavit by a detective, who watched with a video camera as the children were driven to school on 8^th, 9^th, 10^th and 11^th July and on all but 10^th July saw and photographed the father. I have watched the videotape and on 9^th and 11^th July the father clearly waved to the children and blew a kiss to them. The father says that it is a sign of the mother’s lack of credibility that, although she says that she saw him en route on 10^th July, the detective did not notice him that day.

The father’s general response to the allegations is that his seeing the children since 15^th May has been accidental; that he lives close by and that his route by foot to the Jobcentre takes him up M— Road, down part of which the mother has to travel if she is to take the children to school by car rather than on foot; and that the contract which entitles him to a Jobseeker’s Allowance obliges him to report to the Jobcentre three times a week, between 9.00 am and 9.30 am, which explains his walking up M — Road towards it at about 8.50 am when the children travel to school. He says that the mother contrived these encounters in order to get him into trouble and that she could perfectly well walk with the children to the schools (which are adjacent to each other), the route for which would take them nowhere near M — Road. He denies having been in a car on any of these encounters or that any has taken place at weekends.

I am satisfied beyond reasonable doubt that it is the father, not the mother, who contrived the encounters between May and July; that the mother’s evidence in these matters is true and that the father’s evidence is bogus. Prior to May the mother did indeed often walk the children to the schools but the father followed them, as a result of which [one of the daughters] eventually asked the mother to take them by car instead.

I asked the father why, if he had to attend the Jobcentre three times a week, he was seen by the sergeant and the detective - so for this purpose putting aside the mother’s own evidence - walking up M— Road at around 8.50 am on four days in the week beginning 7^th July. There was no convincing response.

But the falsity of the father’s case was even more fully exposed when the office manager of the Jobcentre in Plympton gave evidence. She said that in October 1996 the father had been given a contract obliging him to visit the Jobcentre three times a week; that that contract had lapsed when he had become ill and unavailable for work; that in May 1997 a new contract had been issued to the father, obliging him to attend twice a week; that on the working day prior to the start of the hearing in July the father had visited the Jobcentre and had asked an officer there to issue him with a new contract, obliging him to attend three or four times a week; that the officer, surprised, had protested that an increase was unnecessary but had eventually been persuaded to issue a new contract specifying three visits per week. Oddly, the father did not exhibit to his affidavit sworn that day the document which he had thus obtained. Instead he exhibited the contract issued in October and now known to be out of date, which had of course also specified three visits per week.

The office manager went on to say something of equal importance, namely that the only requirement for the father to attend between 9.00 am and 9.30 am was for every alternate Wednesday; that the further required attendances could be at any time in office hours; and that the father could not have been led to believe, either by the terms of the contract or by any other document or to the best of her knowledge by anything said to him at the Jobcentre, that the further attendances had to be between 9.00 am and 9.30 am.

I disbelieve the father when he says that he understood that the further attendances had to be between those times. I disbelieve him when he says that he never read the May contract, specifying two visits a week; and when he says that he mislaid it and always assumed that, as before, he had to attend three times a week. Although he did not adduce the copy contract obtained on the working day prior to the case, perhaps because in the interim he had located the October contract, which served his purpose just as well, he obtained it with a view to misleading the court about the number of attendances required.

I find that, even in respect of the alternate Wednesdays, there was no need for the father to pass down M — Road. His car has been in working order and the mother has satisfied me that there is a route which the father could easily take by car, (or indeed on foot, although it is less direct than the route which he has hitherto taken) which avoids M — Road, or any other part of the route of the children to school.

I hold that between 15^th May and 21^st July 1997 the father committed twenty breaches of the undertaking given on 15^th May, and at the same time sixteen further breaches of the order made on 14^th April. Nineteen of the twenty breaches amount to loitering (whether in a car or otherwise) along the route of the children to school. I hold that one can loiter without being stationary. I find that, even on the day when the detective did not notice him, the father was there along the route, albeit at a different point namely, in G — Road near the mini-roundabout. The twentieth breach amounts to deliberately following the mother and one of the children, namely —, on foot. Sixteen of those twenty breaches also, in my judgment, amount to harassment of the mother contrary to the earlier injunction. These findings will have to be fully particularised in any order that I make; and this judgment must be read so as to include findings in accordance with such particulars as are there set out.

I take a very serious view indeed of these deliberate and repeated breaches, designed, so I find, to destabilize the mother and perpetrated with no insight whatever into the damaging effects also upon the children.” (emphasis added)

“I humbly apologise to this Honourable Court for breaking the order and I undertake to comply in the future. I solemnly promise that I will not breach any further Order the Court may make, or the Order now in existence. I realise the Order must be obeyed.”

The application was heard by the President, Sir Stephen Brown, on 20 November 1997. The application was refused. A further application to the President on 16 December 1997 was successful, the President ordering Mr Harris to be discharged from prison on 22 December 1997. On each of these occasions Mr Harris was represented by solicitors and counsel, having obtained legal aid “to be represented on an application to purge contempt”.

“I admit to being in breach of the order as described in most of the 30 occasions listed.”

In paragraph 5 he said:

“This is not an appeal about the committal, but purely about the length of sentence ... ” (emphasis in the original).

In paragraph 1 of his affidavit he said:

“I do not wish to appeal the committal to prison for the described breaches of the orders 14/4/97 & 15/5/97 but wish to appeal the sentence imposed.”

However by 10 December 1997, if not before, he had obtained legal advice and decided on the basis of that advice not to pursue his appeal. Mr Harris personally signed a notice of consent to that effect dated 12 December 1997. On 8 January 1998 the Court of Appeal (Mr Deputy Registrar Joseph) accordingly made an order dismissing by consent both Mr Harris’s appeal against the committal order and his application for bail pending appeal.

Mr Harris seeks the assistance of the Official Solicitor

“I have been sentenced to four months for breaches of a civil injunction. I was acting in person in court and I cannot get legal aid, despite being unemployed with no savings. I wish to appeal this sentence and I would like bail pending appeal. I will stress that no violence was used, and the applicants evidence has been, in the past, seen as unreliable. Can I ask in this situation for the Official Solicitor to represent me for appeal & bail to the Appeal Court? Your Mr Szulc indeed represented my children in the court case up to last Friday, and will be able to furnish you with the fullest of details.”

“Since I am representing your three children in the Children Act proceedings concerning them, I am unable to act on your behalf in the committal proceedings.”

On 20 November 1997, as I have mentioned, the President dismissed Mr Harris’s first application to purge his contempt. The Official Solicitor, in his capacity as the children’s guardian ad litem, appeared by counsel. Mr Harris, as I have said, was represented by his own solicitors and counsel.

“Many thanks for your interest in my case to date. Although I have a Solicitor on Legal Aid attempting to purge my contempt again soon, I cannot get Legal Aid for Appealing the Sentence, or getting Bail whilst the Appeal is underway. I have applied in person for Bail & Appeal of Sentence to the Royal Courts of Justice ... MR SHAH ... and Miss Derby are dealing. What I am writing to ask is if the O.S. can assist me in expediting at least my Bail. I have been told by the Solicitor/Barrister trying yet again to purge my contempt that my sentence is wildly excessive. Can you please assist in speeding up the Bail at least.”

“I refer to your letter of 3 December 1997. I spoke to Mr Shah of the Royal Courts of Justice today and asked him what the current position was in regards to your bail application. Mr Shah said that the Lawyer in his office, Ms Derby, had all the papers relating to your bail and that the matter was in hand. I was unable to get from them a definite date for your bail application but I did inform them of the date you were due to be released from prison. I hope this is of some assistance to you.”

“We write to tell you that it has transpired that unbeknown to us who act for Mr Mark Dean Harris in the purge application that of his own volition he sought to appeal the sentence of Sir Justice (sic) Wilson. When this came to our attention we discussed the matter with our client and he subsequently decided not to proceed and formally apply to withdraw the appeal. He has instructed us to discontinue the appeal process against sentence. We therefore put you on notice that Mr Harris has no intention of appealing the sentence of Mr Justice Wilson and will not proceed with any appeal that he lodged in person. We have been informed however by the Civil Appeals Office that it is necessary for all parties to consent to the withdrawal of this matter and I therefore ask you to provide your consent by return on the enclosed form. We remain instructed in relation to Mr Harris’ application to be discharged from prison but emphasise that apart from the request contained herein we have had no role in his appeal against sentence. We trust that you will take pragmatic view of this matter and provide the relevant consent by return.”

Mr Harris again seeks the assistance of the Official Solicitor

“On 7^th November 1997, I was committed to Prison for Contempt of Court by Mr justice Wilson. I have recently been passed a leaflet of yours called “The Official Solicitor’s Department, what it is & what it does”. I had no representation at the point of committal. I see from the above leaflet that you investigate cases of Contempt Committal’s (sic) to see if all procedures are correctly followed. I believe such procedures were not followed.”

He then set out various complaints about the role that Devon County Council had, according to him, played in the committal proceedings, asserting that there had been “an unfair trial” of the committal proceedings. He asked the Official Solicitor to investigate.

“Pursuant to that direction, all committal orders referred to my office are checked to ensure that there is no defect on the face of the order. If it is considered that there are grounds of appeal against the committal order itself and the contemnor, or alleged contemnor, is not represented by a solicitor, I may act for the contemnor for the purpose of an appeal. If a contemnor is represented by a solicitor, then any defect that is noted will be brought to that solicitor’s attention.

Where there is no apparent defect on the face of the order, one of my caseworkers writes to the contemnor to inform them of their right to apply to purge their contempt. I would not normally act for a contemnor for the purposes of such an application unless they were incapable for some reason, such as mental illness or vulnerability, of making the application themselves. Where somebody is suffering from physical or mental illness, I may apply for early release of the contemnor on compassionate grounds, which is why the prison is asked for a medical report.

In your case, by the time the committal order had been referred to my office, you were represented by solicitors and as the order was, on the face of it, correct, no further action was considered necessary, although you did receive the standard letter informing you of your right to apply to purge your contempt. Additionally, enquiries were made to ensure that you were fit to serve your sentence and that there were no grounds to apply for your early discharge on those grounds. As the Official Solicitor represented your children in the proceedings it would have been inappropriate for my predecessor to make any such application, but the circumstances would have been brought to your solicitor’s attention if action seemed warranted.

I am unable to comment on the position regarding Devon’s involvement, although I note that the Court documents refer only to yourself and your wife being parties. It is not part of my functions to investigate a committal where the contemnor, or alleged contemnor, is no longer in prison.”

“Your letter of 9 October 2000 asked about my role in contempt proceedings. My letter of 12 October set out that role which, as I explained, was limited in your case, both because you were represented by solicitors in relation to your application to purge your contempt and because, as the guardian ad litem of your children, it would have been inappropriate for me to become involved any further.

For those reasons and because, as previously explained, my role in contempt does not extend to contemnors who have been released, I am unable to comment on the procedures the Judge adopted leading to your committal. One point I would, for the record, make is that although Devon County Council’s application for an interim care order had been dismissed by the time of your committal, they remained a party because their substantive application for a care order had not yet been determined.”

That last point, I should add, is correct. Devon County Council remained a party in the family proceedings until it was replaced by Plymouth City Council following an order made by His Honour Judge Cottle on 3 July 1998. Thereafter Plymouth City Council remained a party until discharged by Kirkwood J by an order dated 11 March 1999.

“I do not believe that you have a point of substance here. When Catherine Wood or Peter Jackson questioned you on previous occasions upon my predecessor’s instructions either in relation to your applications to purge your contempt or upon the mother’s committal applications, that was because the interests of your children were considered to be involved. I have indicated to you on this occasion that as matters stand I am not actively intervening in relation to the mother’s present application. This is because upon the evidence currently available I do not see that the children’s interests require me to play an active role.

As I said in my last letter on this subject to you, it is time we draw a line under this correspondence.”

“The 1997 Orders and undertakings are, as far as I and this office are concerned, concluded business which it is not for me to reopen.

I certainly would not concede that the Order upon which, for the many proven breaches of it, you were committed to prison, was unlawful. There was no apparent defect on the face of the Order. You did not appeal it. In any event, it followed the terms of an undertaking you yourself had given. Nor do I concede the validity of your criticism of my predecessor - about whose role we have previously corresponded. The important point here is that in your applications to purge your contempt you were represented by your own solicitors, and they certainly took no point against the terms of the Order or the lawfulness of your imprisonment.

You say you intend proceedings. That must entirely be a matter for you. You (once again) misdirect your fire if you are laying the blame for your own imprisonment at this office’s door. If you are implying that those proceedings will be brought against me, I shall defend them strenuously and seek to have them struck out as misguided. It is not for me to advise you in relation to any such action (you are not within my “client” categories and indeed there would be a conflict of interest) but I can only suggest you seek and act upon the advice of solicitors in whom you have some confidence if you are thinking of embarking upon further legal proceedings to re-litigate the 1997 events.”

Mr Harris’s application for judicial review

Mr Harris’s complaints

“the trial itself was a confusing round-robin of various witnesses being called over various issues at random”

“the Official Solicitor of the time had NO BUSINESS, whatsoever, being involved in the Committal matters, especially as he has long standing duties to persons found in contempt.”

“left me in breach of the orders whatever way the mother chose to use as the school route”.

He says that the new route which the mother chose to use following the hearing on 15 May 1997 (see paragraph [17] above) “was NOT any route I agreed not to travel on” and submits that, if the mother wished to vary her route, then it was for her to return to court and seek a variation of the orders.

(A) Declarations that

(a) the Official Solicitor was acting wrongly by taking part in the committal proceedings and resisting both purge applications when acting in the family proceedings solely as guardian ad litem to children in residence / contact disputes

(b) by acting in that manner the Official Solicitor (i) placed himself in conflict of the duties he owed to the children and to Mr Harris and (ii) caused an unfair trial

(c) both “the orders I was committed to prison on in 1997" and the committal itself were “unlawful”

(d) the Official Solicitor neglected to raise with the court (ie., both Wilson J and the Court of Appeal) what Mr Harris calls “the unlawfulness of the orders”

(e) the office of the Official Solicitor was negligent in his duty.

(Mr Harris also asks me to “refer the matter to the Court of Appeal”, in other words, as he puts it, “give permission to appeal”.)

(B) Compensation for

(a) an “unfair trial” and “unlawful imprisonment”

(b) neglect of duty and statutory duty.

(Mr Harris asks me “to direct proceedings to an appropriate Court for such an award”.)

(C) Costs

“I seek redress against the Official Solicitor, and Permission to go again to the Court of Appeal.”

Mr Harris’s complaints - conclusions

“My solicitor REFUSED to act for me AT ALL if I pursued an Appeal, and as no appeal was POSSIBLE until after the release date, I reluctantly followed that appalling threat. I have no redress upon the Solicitors or Barrister.”

I am, of course, in no position to know whether there is any substance in any of these allegations, though I should emphasise that Mr Harris has produced nothing whatsoever to support what at present consists of nothing but bald assertions. But that, as it seems to me, is neither here nor there. The short point for present purposes is that the Official Solicitor was plainly entitled to act on the faith of what was said in the letter from the solicitors. There was nothing which led or which reasonably could have led him to any conclusion other than that Mr Harris was being competently and appropriately advised by solicitors who were, as I have said, well-known and highly reputable.

72 Given that his duty under the Direction is plainly discretionary, it is at least arguable (though I deliberately put the point no higher than this) that the Official Solicitor cannot be held liable for mere negligence and that a claimant for judicial review has to establish either error of law or irrationality. But even making this assumption in favour of the Official Solicitor it remains at least arguable in my judgment that if the undertaking was defective, as in my judgment it arguably was, then the Official Solicitor’s failure to identify this defect is amenable to challenge by way of judicial review.

The decision of 8 February 2001

“I submit that decision was correct, alternatively one that it was well within my discretion to take. Factors I took into account included:

(a) that I am under no duty to review the conduct of my predecessor;

(b) that no action on behalf of Mr Harris would be likely to result from such a review (even if I were to take a different view from my predecessor) because:

(i) any appeal would have been nearly 3 years out of time;

(ii) permission to appeal out of time would have to be sought against the background that Mr Harris had himself launched an appeal which he later withdrew;

(iii) the substantive provisions of the Human Rights Act 1998 do not assist Mr Harris in relation to events that occurred prior to their implementation;

(c) in connection with an attempt to purge his contempt, Mr Harris had sworn an affidavit on 10 November 1997 acknowledging the Order and its effect, apologising for breaking it and undertaking to comply in future (with which such an appeal might be inconsistent);

(d) as the committal Order sentenced him concurrently for 30 breaches of the Order, it would be necessary to establish that the Order was defective in relation to all of these for an appeal to succeed;

(e) the fact that Mr Harris had been released from prison, so an appeal could not obtain his liberty;

(f) the fact that Mr Harris had been legally advised and represented by solicitors and counsel at the material time;

(g) the appropriate application of the limited resources available to me, as between the competing demands for them.”

Other issues

The Human Rights Act 1998

Delay

Collateral challenge

“would simply be allowing a rather late Permission to Appeal to a litigant in person who simply has been neglectfully treated by a public body who had a duty to protect him.”

He refers to the fact that The Birmingham Six and The Guildford Four obtained what he calls “second full appeals in exceptional circumstances”.

The Direction

“It is not my usual practice, nor do I understand it to have been the usual practice of my predecessors, to act (as distinct from the duty to review) for any person of full capacity who has instructed his or her own solicitors. It appears my predecessor took the view that, in any event, he could not act for Mr Harris as (in another capacity) he was otherwise involved in the litigation which led to his committal. If Mr Harris had been unrepresented and Ms Clarke had concluded he needed representation the usual procedure would have been for her to write to him outlining the possible grounds for a challenge or application to purge, advising him to obtain legal advice from a solicitor, and if necessary suggesting the names and contact details of local firms: but that situation did not arise as he was represented by ... solicitors.”

Conclusion

Permission to appeal

Postscript

“against my express advice given to him on his first application to purge on 20 November 1997.”

Counsel continued:

“I advised him that his best course was to purge his contempt by showing that he was contrite and focussed on the need to comply in future. I opened the purge application on the basis that no appeal was to be lodged.”

“Should Mr Harris seek to proceed with his appeal, which he can of course make as of right should he personally see fit, then my own involvement in the contempt proceedings will have to cease and I will have to withdraw from that part of his case forthwith. This is because I will be in an inevitable position of professional embarrassment in seeking to purge his contempt having made representations to the court to the effect that there was to be no appeal and knowing that there is now an appeal pending. I will further be in a position of professional embarrassment in advancing mitigation as contained in his draft affidavit whilst knowing that Mr Harris does not accept that he has been treated fairly in the committal proceedings. Further, Mr Harris must know that an appeal against sentence may cause his purge application serious damage. It hardly shows that he has taken his punishment ‘on the chin’ and is contrite as he claims in his affidavit. A pending appeal will demonstrate to the President that Mr Harris does not accept that his breaches warranted the punishment and that as a corollary he does not accept the seriousness of the breaches. Should Mr Harris wish to proceed with his appeal and second purge application then, I regret to say, he will have to find alternative counsel or proceed in person on the purge application or any appeal.”

“[Solicitor] travelling to Exeter Prison and meeting there with Mark Harris. He was very agitated. [Solicitor] showing him the advice from [counsel] and advising him that if he wished to appeal then he most certainly could do so but neither [solicitor] or [counsel] could continue to act. He had indicated that he was not going to appeal and in fact appealing was against the advice of [counsel]. ... He saying that he was prepared to withdraw as even now it was getting late and he wanted to be able to purge. He was very keen to do things as quickly as possible ... [Solicitor] will write to the Civil Appeals withdrawing his application.”

“I cannot launch a ‘second appeal’, but the OS can launch HIS first.”

(i) So far as concerns delay and collateral challenge I repeat what I have said in paragraphs [86]-[88] and [90] above.

“I cannot launch a second appeal, but I trust you can launch YOUR first appeal.”

Not surprisingly, as the letter was sent on a Saturday, the Official Solicitor had not replied to it when the matter came back before me on Monday 22 October 2001. It is of course a matter for the Official Solicitor whether and in what way he replies to that letter.

PRIVATE 

MR JUSTICE MUNBY: This is an application by Mr Harris for permission to apply for judicial review which came before me on papers earlier this year. I directed that the application for permission was to be heard in open court, and that took place on 4th October. Unusually, because the case raised a number of issues and because Mr Harris was appearing in person, I reserved judgment. The draft judgment was circulated to the parties in the usual way by being posted to them on Thursday of last week.

Since then Mr Harris has raised further points, both in a fax which he sent to the Official Solicitor, who is the respondent to this application, dated 20th October 2001, a copy of which was sent to me the same day, and, secondly, in the form of a letter, also dated 20th October 2001, addressed to my clerk, which was likewise faxed to me.

Now, Mr Harris, as I understand it, you are asking me to make a mandatory order requiring the Official Solicitor to exercise his powers under the direction and take this case back to the Court of Appeal.

MR HARRIS: Yes, please. I do not see any other way forward for me, unless you can give me a direction of this.

MR JUSTICE MUNBY: Did you send to the Official Solicitor a copy of the letter which you sent to me?

MR HARRIS: 20th October I did, yes.

MR SOLOMONS: My Lord, I think I have a letter from Mr Harris of 19th October. I have one addressed to me of 20th October, but I think I am lacking a copy of the letter sent to your Lordship's clerk or to your Lordship.

MR JUSTICE MUNBY: Mr Harris, have you sent to the Official Solicitor a copy of the letter which you sent to me addressed to my clerk?

MR HARRIS: Yes. I faxed everyone everything across.

MR JUSTICE MUNBY: Mr Solomons, have you had copies from Mr Harris of the counsel's opinion?

MR SOLOMONS: Indeed so, my Lord.

MR JUSTICE MUNBY: And the solicitor's attendance notes.

MR SOLOMONS: I have counsel's opinion. I have a letter from the solicitor enclosing it and a --

MR JUSTICE MUNBY: A two page attendance note.

MR SOLOMONS: And I do have the attendance note, yes, my Lord.

MR JUSTICE MUNBY: I am not sure that Mr Harris's letter to me adds very much to his letter to you. As I understand it, what Mr Harris in effect is doing is perhaps two things. First of all, rising to the challenge of my parenthetical comments that his complaints about his former legal advisors were based on bald assertion and nothing more, he has now provided material.

MR SOLOMONS: Yes.

MR JUSTICE MUNBY: But that, in a sense, by the way, because, as I made clear in my judgment, whether or not those allegations were well-founded did not ultimately take him anywhere.

Secondly, and in a sense, if I may say so, as much by way of admiration as in any tone of criticism, Mr Harris, with typical acuteness, has picked up a thought which no doubt occurred to him reading paragraph 90 of my judgment, and is seeking a mandatory order from me directing you, or rather the Official Solicitor, to make an appeal to the Court of Appeal.

Now, as I understand it, his point is that although he personally can no longer go to the Court of Appeal, there having been one appeal to the Court of Appeal followed by the dismissal on jurisdictional ground of his second attempt to go there, his point is, so he asserts, that does not prevent the Official Solicitor, acting ex officio in accordance with the direction, going to the Court of Appeal, and in all the circumstances I should direct the Official Solicitor to do so.

It seems to me the first point is this: that the point Mr Harris has raised is a new point in the sense that at the very least he is seeking relief going beyond the relief which he had previously identified, and therefore the first matter we have to deal with, it seems to me, is how formally do we treat his application. One way of dealing with this is to treat it as an application by him for leave to amend his N461, to treat that as before me and to deal with it, albeit post-delivery of judgment, as a further aspect of his application for permission.

The alternative would be to refuse to do that, to say that it is no part of the present proceedings, which, although it might have some short term attractions to the Official Solicitor, I suspect would merely expose him almost immediately to a further application for permission for judicial review, this time based on the decision which no doubt Mr Harris will assert had been taken by the Official Solicitor yesterday or today to refuse to go to the Court of Appeal.

It does seem to me that the much more sensible and convenient course is for me to give Mr Harris permission to amend his existing N461 so that this new point can be brought into the ambit of the present proceedings, and the question then is do I deal with it here and now or does it go off to some future occasion?

MR SOLOMONS: My Lord, the application that is before your Lordship is an application for permission to move for judicial review. Putting it at the very highest, Mr Harris cannot obtain any relief other than permission --

MR JUSTICE MUNBY: Certainly.

MR SOLOMONS: -- at such a hearing. The hearing before, if I may respectfully say so, very rightly, your Lordship took a very broad view of the way Mr Harris put his complaint as a litigant in person. That was, if I may say so, entirely appropriate, and in my submission your Lordship understood this as precisely the application which Mr Harris is now seeking to amend to make an addition, and that is made rather clear by your Lordship's approval in paragraph 80 of the judgment of what Mr Oats had said in his witness statement, where your Lordship says in paragraph 81, in the judgment your Lordship approves, the extract from Mr Oats where he says:

"No action on behalf of Mr Harris would be likely to result from such a review even if I was to take a different view from my (... Reading to the words...) would be sought against the back ground which he later withdrew."

And deals with the fact that the committal order was concurrent and agreed to dismiss all, or most, of the counts; the fact that Mr Harris had been released from prison; and the fact that the appropriate application within the limited resources available to the Official Solicitor between competing demand for them is a material factor.

There was therefore evidence which your Lordship approved as to the basis on which the Official Solicitor would address such a question, did address such a question, did reach that decision. Essentially that decision, though perhaps not in quite that format, and it goes one stage beyond that, my Lord, in that in paragraph 76 of your Lordship's judgment, your Lordship, if I may paraphrase, essentially finds that there was no reasonable prospect that the Court of Appeal would have interfered.

MR JUSTICE MUNBY: On the merits.

MR SOLOMONS: On the merits, therefore would now interfere on the merits. My Lord, I will now say this. Your Lordship has delivered in draft so far an extremely careful, if I may say so, judgment which the Official Solicitor personally will be reviewing, and no doubt if he were to reach the decision contrary to initial impressions that there were proper ground to bring an appeal and that in the exercise of his discretion he should do so, he would of course write to Mr Harris to that effect. I realise in saying that I am inviting the course which your Lordship invites me to avoid, but in my submission that is the appropriate course.

I say that cautiously for this reason: that in fact the Official Solicitor is being invited to re-consider a decision he has previously made in the light of your Lordship's judgment.

MR JUSTICE MUNBY: Yes. Mr Harris, I suppose, might riposte that the Official Solicitor is now being asked to consider it in a slightly different setting, or rather being asked to direct his mind explicitly (I think it is right to say that he has never hitherto been invited by Mr Harris to do so), distinguishing, for this purpose, between an appeal brought in Mr Harris's name, albeit by the Official Solicitor, to the Court of Appeal, and an independent appeal brought by the Official Solicitor and therefore, so says Mr Harris, not barred jurisdictionally in the way in which a further application by Mr Harris would be barred.

You say, I suppose, that it is all wrapped up in the same point, that it is simply a technically slightly different way of putting the same point which in substance I have already considered and rejected.

MR SOLOMONS: I say certainly the latter, my Lord: that it is clear that the Official Solicitor did consider that and reject it, otherwise the terms of his witness statement refused by your Lordship in paragraph 80 would not have been in those terms, and if I am wrong in that and it is an entirely new point, then I would say that the Official Solicitor deserves an opportunity to consider it before he is reviewed upon that decision.

MR JUSTICE MUNBY: Obviously having received Mr Harris's fax, which, as it happens, came to my attention yesterday, I have had an opportunity to consider it overnight. I am minded to think that an appropriate way of looking at this is as follows. First of all that in all the circumstances if Mr Harris wishes me to do so I should give him leave to amend the existing proceedings to raise that point, because whether or not there is then an adjournment to argue the point in substance, that at least spares everybody what I suspect will otherwise simply be another set of judicial review proceedings.

Secondly, it is not for me, it seems, to decide what the jurisdiction of the Court of Appeal is. But I am inclined to think, as at present advised, that, at least for purposes of granting permission, it is at least arguable that the Official Solicitor, all other barriers out of the way, would, if he was so minded, have locus to mount a fresh appeal to the Court of Appeal in circumstances where the Court of Appeal arguably would not consider itself jurisdictionally barred from considering such an appeal.

It occurs to me that why that may at least be arguable is, first of all, that the Official Solicitor, at least arguably, acts in matters of contempt ex officio, and although in the interests of, not on behalf of, the contemnor. It might be thought that that proposition is supported by three different considerations: first, as Churchman's case shows, that the Official Solicitor can go to the Court of Appeal over the protests of the contemnor; secondly, and I think I am correct in saying this, that when he does go to the Court of Appeal the Official Solicitor has never gone on record for the contemnor; thirdly, and, as it happens I have personal experience of this, there certainly have been cases where appeals in the Court of Appeal against committals have been pursued simultaneously both by counsel instructed by solicitors instructed by the contemnor, and by counsel instructed by the Official Solicitor.

Next, as I have already indicated in my draft judgment, my current thinking is that the arguments based on collateral challenge do not necessarily rule out this particular head of relief, and that is the point made in paragraph 90 of the judgment which Mr Harris has picked up.

Now, if one puts all that together, one is then left with two points. One is that in substance, even if the detail of the argument is slightly more sophisticated than it was hitherto, this is a re-hash of the argument which I have already rejected in paragraphs 80 and 81 of the judgment, and, secondly, what I might call the paragraph 76 point: that even assuming, for the sake of argument, that Mr Harris succeeded in this Court all down the line, got permission, succeeded in judicially reviewing the Official Solicitor, got a mandatory order from this Court requiring the Official Solicitor to mount an appeal, taking every conceivable point that the ingenuity of Mr Harris and the Official Solicitor and everybody else could conceivably think of, it would not get him anywhere in the Court of Appeal in the sense that at the end of the day, even if all else is down, there is, for reasons I have already given, a knockout answer to this application.

MR SOLOMONS: My Lord, yes. If I may add one further factor. It is this: that one needs to consider what is the decision sought to be reviewed. Either it is a future decision which the Official Solicitor might make in the light of that which has fallen from your Lordship in the draft judgment yet to be delivered.

MR JUSTICE MUNBY: Indeed.

MR SOLOMONS: In which case it cannot be reviewed within the proceedings started in March of this year on the general principle that one cannot make an order in respect to -- proceedings must be commenced after the date of the issue complained of, or it is a complaint about a past decision of the Official Solicitor, in which case I submit that it is clearly a matter which was fully argued and fully within those matters contained within the evidence which has been before your Lordship and which was plainly within the contemplation of Mr Oats and previously Mr Harris, Mr Peter Harris, and as to which your Lordship has expressed his views.

MR JUSTICE MUNBY: Mr Solomons, as I understand it, you are saying that if this matter is to be ventilated at all, then the Official Solicitor, quite apart from anything else, requires time to consider it so I should not deal with it today. Secondly, as I understand what you have just said, you are suggesting that, correctly analysed, the decision which Mr Harris seeks to challenge has not yet been taken, and therefore both formally in terms of the rule you have just mentioned and also as a matter of substance, I cannot deal with the matter until the Official Solicitor has taken a decision.

MR SOLOMONS: Just so, my Lord.

MR JUSTICE MUNBY: Can I ask you this? This is not intended in any way to be a comment derogatory of Mr Harris because, as you will appreciate, although, at the end of the day, the view I have formed on the arguments I have thus far heard is that Mr Harris, for the reasons I have given, should not be given permission, that is very far indeed from saying that I have dismissed every one of his complaints and very far indeed from saying that I have endorsed everything said and done in the past by the Official Solicitor.

The simple fact is that Mr Harris detected, and I think I am right in saying in fact he detected in 1999, if not before, and indeed prior to my mentioning the matter earlier this year, a point which I have said in my judgment was a point of substance and which I think is probably right, which wholly passed by a large galaxy of legally qualified people.

But the fact, nonetheless, is that, as you and the Official Solicitor appreciate, Mr Harris is a determined and pertinacious litigant, and it is idle to imagine that if, in some way, this point is not dealt with today, it is not going to be back in Court in the very near future. My anxiety, and in saying that this is as much in Mr Harris's interests as in the Official Solicitor's interests and indeed in the interests of his children in the wider context of the litigation in which he finds himself and in the public interest, is that these matters should be resolved, whichever way, sooner rather than later, and indeed as soon as possible.

I quite see your point that it may not be possible to deal with it today. What would be profoundly unsatisfactory, it seems to me, particularly in the context of the seven day appeal rule which applies, is that, as it were, I should deal with the existing matter today, which, given that Mr Harris has said he wants to go to the Court of Appeal, is going to drive him to the Court of Appeal within seven days time, if, let us say, in 10 days time or 14 days time or 42 days time or whenever, I or some other judge in this division is back dealing with a fresh application from Mr Harris which is obviously intimately connected with this one.

Mr Harris, I suspect, would say that this matter should be dealt with today and that there is no need for further delay. On the other hand, I can see the force of the last two points you have raised. The last thing I want to do is, by anything I do today, simply to muddy the waters and create further technical problems or further scope for dispute in the future between the Official Solicitor and Mr Harris.

In trying to move forward on this in a sensible way, how long would it take the Official Solicitor, without giving him inadequate time for considering the matter, to consider Mr Harris's letter of 20th October and give whatever reply to that letter by way of formal decision the Official Solicitor might think appropriate?

MR SOLOMONS: My Lord, I see no reason why it should take longer than 14 days. In fact that would be a generous allowance of time. I repeat, if I may do so, that in my submission were such a decision to be taken, it could not be the subject of review within these proceedings.

MR JUSTICE MUNBY: That may be, but ... The simple fact is -- I say the simple fact, it seems to me in the light of everything Mr Harris has said in the recent past, not least in those two letters, the only safe basis upon which I can proceed is that if, in the course of the next few days, the Official Solicitor replies to Mr Harris's letter in whatever terms, not being terms which agree to what Mr Harris is asking for, then Mr Harris will immediately launch further judicial review proceedings.

Now, equally, no doubt the Official Solicitor may say that they will all be misconceived and that permission should not be granted. Just as Mr Harris is privileged to issue the proceedings, it is the Official Solicitor's privilege to make his views very clear in his acknowledgement of service. Those proceedings, in the usual way, will then come before a judge on paper. In the nature of things they are likely to come before me on paper, and I cannot help thinking that if we get to that point I might take the view, depending obviously on what Mr Harris said in the proceedings and what the Official Solicitor said in his acknowledgment of service, that the appropriate course was to have another oral hearing.

Now, one can either simply leave matters to let the law take its course, as it were. That is unsatisfactory, because it is going to make life more difficult for everybody in the Court of Appeal, where Mr Harris has to go in seven days. It will also, I cannot help thinking, gravely delay matters because in the normal administrative routine of the court, fresh judicial review proceedings begun by Mr Harris in, let us say, a month's time, will not be able to work their way through the system this side of Christmas, I suspect.

The alternative course, which, subject of course to what both you and Mr Harris have to say, seems to me to be much more satisfactory, is that if this matter cannot be resolved today, then I should give such directions, both in relation to these existing proceedings and in relation to Mr Harris's contemplated proceedings, as will bring both sets of proceedings back in front of me in the very near future.

MR SOLOMONS: My Lord, I plainly cannot persuade your Lordship otherwise. But my submission simply has --

MR JUSTICE MUNBY: What I am having to meditate, to wonder, is whether, taking the long view of this, it is particularly in the Official Solicitor's interest to persuade me otherwise.

MR SOLOMONS: My Lord, subject to one matter, I would entirely accept what falls from your Lordship, and the one matter -- I would not take the technical point for the sake of the technical point.

MR JUSTICE MUNBY: No.

MR SOLOMONS: But the reason why I continue to resist is this: that in my submission all of the matters which could be argued in relation to such a future decision have been argued, and your Lordship has made findings, provisional findings, as your Lordship's judgment is in draft, but your Lordship has made provisional findings against them. It is inconceivable that the factors which the Official Solicitor would take into account would be different from those which your Lordship approves, as set out in paragraph 80 of the judgment. He would be reinforced in his view as to the merits of an appeal by what your Lordship has said in paragraph 76 of the draft judgment, and in my judgment a further hearing is taking the matter no further.

I go one stage further and say it is clear that whether or not that analysis was applied, that the issue which Mr Oats considered was whether there was anything that he could do to help Mr Harris. He did not exclude the possibility of an appeal. As your Lordship has rightly said, were the Official Solicitor to have pursued an appeal, almost certainly he would have done so in his own name and not in the name of Mr Harris. Therefore the decision not to appeal, which your Lordship has approved, was precisely the decision which your Lordship is inviting the Official Solicitor to retake.

MR JUSTICE MUNBY: Mr Solomons, I can see all of that, but that, if you will forgive me for saying so, is in effect a compelling submission that I should knock this point on the head today.

MR SOLOMONS: That is my submission.

MR JUSTICE MUNBY: My difficulty is that I thought a moment or two ago you were saying that I could not deal with it today (a) because the Official Solicitor needed time to consider Mr Harris's letter and (b) because in any event that consideration, issuing in some kind of decision, was not something which it was open to me to consider in the present proceedings, and it was for those reasons that I was seeking to abbreviate and shorten as much as possible the spectre which otherwise seemed to be about to be conjured up of fresh proceedings, delaying this matter for several months.

I am rather in your hands, because if you are saying that I cannot deal with this today, for whatever reason, then, subject to Mr Harris persuading me that I should, that is it and we then have to go on to consider how can I, or how can the court, best deal with it on some future occasion.

I suspect, and I would ask Mr Harris to stand up and tell me if I am wrong on this, Mr Harris, I suspect, would prefer me to deal with this point today.

MR SOLOMONS: My Lord, if I have misled my Lord, then I apologise. I think I said -- I have a note that I intended to say somewhat earlier that there were two approaches to this case. Either that this was a decision which had already been taken, in which case your Lordship's judgment disposed of it, or it was a decision which was yet to be taken, in which case it could not be dealt with prospectively within judicial review proceedings already commenced, and I think we have been following down the second tact in the argument since I made that observation.

MR JUSTICE MUNBY: We may have been at slightly cross purposes and, if so, I apologise. My assumption had been that the logical corollary of what you were saying was that I should simply hand down this judgment without any further elaboration. That, I have to say, seems to me to be unsatisfactory because it seems to me, for a whole variety of reasons, that whatever my answer, or some other judge's answers, may be to Mr Harris's latest point, it is highly desirable that either I or some other judge should deal with it, albeit it may be briefly, and that is so irrespective of what view I come to it on. Otherwise -- there is merely this practical point -- if it is not referred to on the face of this, I am tempted to say, unbelievably detailed judgment, bearing in mind the nature of the proceedings, and this is not a criticism of Mr Harris, Mr Harris perfectly legitimately will say, look, I have a point which the judge, who dealt with everything in vast detail, who meticulously in this judgment referred to and quoted from every conceivable letter, simply has not dealt with. Where in this judgment, he will say, do you find any reference to my letter of 20th October. It was considerations of that sort which had led me, perhaps erroneously, to assume that the first of your two alternatives simply contemplated my handing down this judgment in this form.

MR SOLOMONS: My Lord, the first of the alternatives, which is my primary position, and I say that for this -- I think I should justify that. My primary position is that it is clear that Mr Oates, and possibly Mr Peter Harris, did make that decision, and that was in essence the decision which your Lordship has been considering an application for permission to review. That is the subject of the proceedings so far, so my primary position -- that is the reason that is my primary position. If that is right, then it should be dealt with in these proceedings, and if that is right then I am content for it to be dealt with this morning.

My secondary position is nevertheless, as a responsible public official, of course the Official Solicitor will personally wish to review your Lordship's final judgment, and it is always possible, and I say no more, that he might reach a new decision in the light of what has fallen from your Lordship in an extremely careful and helpful judgment. Whether or not that further decision will be capable of review is a matter that must be reserved for the future. I do not think it can be avoided.

MR JUSTICE MUNBY: Mr Solomons, that is very helpful. I think I now see a way through this in procedural terms, which is that I should treat the present proceedings as including, and I will give Mr Harris leave to make this amendment, amongst his claims for relief in relation to the existing decisions of the Official Solicitor, both Mr Oates and his predecessor, what was not previously amongst the relief sought, that is to say a mandatory order to compel the Official Solicitor to take his case to the Court of Appeal.

Mr Harris wishes me to consider that substantive issue today, and I am minded to do that, unless you wish to persuade me that I should not deal with it today. Let me make it clear that if I do deal with it today in that way, then that of course will leave entirely on one side what the Official Solicitor's response to Mr Harris's letter of 20th October should be, and will also leave entirely open whatever response Mr Harris may wish to make by way of further application to the court once he receives the Official Solicitor's response.

Dealing with the matter today, albeit as an extension of the relief he seeks in relation to previous decisions of the Official Solicitor, will, I accept, irrespective of whether I agree with Mr Harris's submissions or your submissions, have the useful effect of assisting the Official Solicitor in deciding how to respond to Mr Harris's later letter and also assisting Mr Harris, and it may be the court, in deciding how to respond to any future application for judicial review -- whether there should be a future application for judicial review and, if so, how it should be dealt with.

MR SOLOMONS: My Lord, I would not try to persuade your Lordship otherwise. If I may make one small point. I think your Lordship said that he would deal with this substantively today. If I may respectively say so, it is dealing with the permission today.

MR JUSTICE MUNBY: When I said substantively, I mean the substantive application for permission to apply for judicial review --

MR SOLOMONS: Yes.

MR JUSTICE MUNBY: -- as opposed to the logically prior application for permission to amend the N461 as part of that application.

MR SOLOMONS: My Lord, yes.

MR JUSTICE MUNBY: Well, Mr Harris, you want me to order the Official Solicitor to go to the Court of Appeal.

MR HARRIS: Yes, please.

MR JUSTICE MUNBY: The problem, it seems to me, is this. Let us assume that all the other difficulties are out of the way, and I think that arguably they are all out of the way, you are still left, it seems to me, with the fundamental point which is set out in paragraph 61 of my judgment. I am sure you have read that and are familiar with what it says. Putting it very shortly, and I am afraid bluntly, you may say I am wrong, but you will have to go to the Court of Appeal on that, but I have come to the view that if this matter went to the Court of Appeal on the merits, for the reasons set out in paragraph 76, an appeal would be dismissed. You may say I am wrong on that, but we are not here today to argue about whether I am right or wrong in paragraph 76.

The point, as I am sure you will appreciate, is this: on the basis of what I have said in paragraph 76, because it is a merits point and not a procedural or jurisdictional point, if the point in paragraph 76 is good, it is as much an answer to an appeal brought by the Official Solicitor as to an appeal brought by you. It is as much an answer to an appeal brought by the Official Solicitor in the year 2001 as it would have been an answer to an appeal brought by the Official Solicitor in 1997.

MR HARRIS: Yes.

MR JUSTICE MUNBY: And that, I have to say, Mr Harris, and I have thought about this overnight, because it so happens I was in here yesterday so I received your fax yesterday, that is the real problem.

MR HARRIS: I think, first of all, it is a little bit dangerous to anticipate what the Court of Appeal would say in such a complex case really. I think it does need looking at by perhaps three appeal court judges.

Secondly, there are other things that were wrong. I think with regard to the (indistinguishable) injunction in place, and you have fallen foul of that one. We actually had three orders in place. There is nothing in the judgment which says undertaking or, I recall, said anything about harassments. The second -- the first amendment, May 1, I think it was, that does not appear anywhere. So we have this vague list of orders. You yourself detailed, in paragraph 68 I think it is, all the standards you have to have, one order et cetera et cetera, and I think this actual committal fell foul of every single point you raise. It fell foul of every single one of them.

MR JUSTICE MUNBY: I have agreed with you, Mr Harris. Because, as you will appreciate, what I am concerned with is permission, formally I have merely agreed that it is arguable that it was wrong. In fact I have dropped a pretty broad hint that I think you are actually right on that, and that this committal was, in so far as it ...

But it still seems to me that, for the reasons I have given in paragraph 76, you are bound to fail in the Court of Appeal.

MR HARRIS: Not all the orders were defective. If all the orders were defective -- and I think also it does need further testing perhaps the evidence, and also the fact that -- to come back to the point, (indistinguishable) without letting us now, or, further still, to come back and complain.

I think there are so many issues here that the Court of Appeal need to do. It is not just a case of did that order of 15th May not come up to the standard, but did the whole entire thing, and even the evidence I think should be looked at, is can the mother, as it stands, go anywhere and claim she is being harassed, when the court made findings about her credibility in the past as well.

MR JUSTICE MUNBY: Mr Harris, as you will appreciate, I have been careful in my judgment to distinguish between your good point based on the form and language of the order, and what I have come to hold is your thoroughly bad point, based on the facts. Your difficulty, or one of your difficulties, I pointed out, is Mr Justice Wilson's finding, which you have no hope of challenging in the Court of Appeal, that you knew as a fact that it was the school route and deliberately went there in order to harass. And that, as I have tried to explain in the judgment, is why even if you are right in terms of the formal defects in the order, in substance you only knock out four out of the 30 contempts.

MR HARRIS: Unless, of course, the previous order is defective as well by not being clear enough, or the previous orders.

MR JUSTICE MUNBY: That is a new point you have not tried to run before, and the argument that an order in the form 'thou shalt not harass' is insufficiently precise to found a committal is, I have to tell you, a hopeless submission. Orders not to harass are made, have been made, for donkeys years up and down the land, and nobody has ever had the temerity to argue that such an order is bad for uncertainty or vagueness.

MR HARRIS: Perhaps it is time it was argued, that one. At the end of the day --

MR JUSTICE MUNBY: Mr Harris, all I can say is if you wish to argue that, you will have to argue it in the Court of Appeal. I do not, I am afraid, consider that to be a point that is capable of serious argument. As you will appreciate, and I deliberately, in order to assist you, made the point in the final paragraph of the draft judgment, there is a special appeal mechanism from this kind of judicial review application. Until recently there was no appeal at all from a refusal to give permission. There is now an appeal, but it is a special appeal, and you only have seven days. The fact is you can take this -- whatever I say, you can take this to the Court of Appeal if you wish to. It seems to me that for the reasons I have already given in this draft judgment if you wish to persuade a court that there is merit in the points you have just been making, you have wholly failed to persuade me, and you will have to persuade the Court of Appeal.

Your difficulty on the point you were on this morning is this. Given the views I have expressed in paragraph 76, and nothing you have said this morning persuades me in any way to change those views, it seems to me that, by parity of reasoning, the paragraph 76 point is itself an answer to this new point you have properly raised this morning.

MR HARRIS: Well, I do not think so really. I think we have to have this looked at by a higher court. I think there is no question about it really. I mean, as I have proved over the weekend, my representation was seriously lacking at the time. This is something that may have been taken straight back to the Court of Appeal and may have changed things. I mean, the sentencing may have been reduced --

MR JUSTICE MUNBY: Mr Harris, let me make it absolutely clear. Whatever I do this morning I am going to add a postscript to this judgment setting out the material you very kindly supplied me with dating from 1997, and making clear, by cross-referencing back to the previous paragraph, that that previous omission in the evidence has now been cured. I am proposing to set that out so that anybody who reads the judgment can see the true facts, and I will also, in a postscript to this judgment, set out the substance of what it is you are seeking in your two letters over the weekend, and then give my reasons. I intend to do that because in fairness to you, and this is why the judgment already is in detail, it seems to me right that if this matter goes to the Court of Appeal, as I have little doubt it will, the Court of Appeal should have all the relevant material before it. And it is certainly right that the Court of Appeal should have before it what I am sure it has never had before it in the past, the relevant extracts from your counsel's opinion and your solicitors' attendance notes.

It is also right, and this is why I have spelt this out in my draft judgment, the Court of Appeal, when you take this matter to it, as I am sure you will, should have spelt out to it that the Court of Appeal has never in fact considered any aspect of your appeal on the merits, although, on one view, that is your fault, because you withdrew the appeal, and, secondly, that in any event the appeal which you made and which you withdrew was confined to sentence and did not raise these other matters. In other words, I think it right to spell out, which I have done, that the points which you now wish to canvass have not merely been unidentified by everybody previously involved in the case, but have never formed the subject of any substantive appeal to the Court of Appeal. It is for the Court of Appeal to decide, not, I am afraid, for me to decide, whether in those circumstances it has jurisdiction to hear any further appeal, whether from you or from the Official Solicitor.

But, this I am afraid is where I end up. I do not see any way round this -- you can try and persuade me if you can. At the end of the day, by whichever route you get to the Court of Appeal, whether it is you in the Court of Appeal or the Official Solicitor in the Court of Appeal, it seems to me that at the end of the day even if every other barrier in your way dissolves, you are still faced with the paragraph 76 point. What is your answer to that?

MR HARRIS: Well, I am saying that all of those orders were -- I mean, Judge Wilson accepted that order was not good enough, that one in April, and that is why he brought in the undertaking. He did not bring in the undertaking to put over the top of it unless he thought it needed it, so it was defective. It was not clear enough. There is a judgment where the mother claims harassment by seeing my empty car, and I said, "What is the harassment here?" So he took a fresh undertaking, which included that one in part, not the amendment. It is no just so complex. It needs someone professional to dig into this. It is a can of worms. I mean, I come in after things like you have said in paragraph 90 and say, 'Yeah, that is where we should be going'. I would like to take this back to 1997 --

MR JUSTICE MUNBY: The irony of this, Mr Harris, is it takes more than a professional to see the point; it takes you as the litigant in person to see the point. So I think I am right in saying it was in 1999 at the latest that you saw the Attorney-General v. Staffordshire point, the uncertainty point.

Anyway, is there anything more you want to add?

MR HARRIS: I would like to short cut this litigation and get it to -- can we have permission to appeal perhaps, because at least that would get it there very, very quickly, rather than have months of this where it is going to be continually contested. What I will do is take you back to 1997. If all this and all what you said had been clear at the start, would we have not gone straight to the Court of Appeal when it was fresh? I mean, one of the barriers is that it is a long time ago. But the thing is though that if this had all come up at the time, if those orders were seen as defective in early November 1997, there is an extreme possibility we would have had a full appeal very, very quickly, and there is a very strong possibility I would have been out of Exeter(?) Prison very, very quickly. Because all this did not come to the required standard, Judge Wilson did replace that junction, or he went over the top of it because it was not good enough.

MR JUSTICE MUNBY: Well, I am not sure about that. I suspect, I do not know, that what Mr Justice Wilson was thinking was, well, there can sometimes be room for argument as to whether what some man is alleged to have done or not is or is not harassment. Therefore in order to guard against that problem, let us, in addition, have an order saying he cannot go to a particular street, because if we have that kind of order, then whether or not he is harassing, he is guilty of contempt by being in the place.

MR HARRIS: But they look straight at the one order with all the four square sides. We have gone to three orders, and he only recognises two in the undertaking. It gets worse.

MR JUSTICE MUNBY: Mr Harris, as I say, nothing you have said, I am afraid, persuades me that what I have said in paragraph 76 is wrong. That, it seems to me, at the end of the day, if I am right in that, is the answer to this new point. You do not accept that what I have said in paragraph 76 is right. Nothing you have said to me persuades me to change my mind on that. I may be right, I may be wrong. If I am wrong, then the Court of Appeal will say I am wrong and reverse my order. But nothing you have said to me, I am afraid, persuades me that what I said in paragraph 76 is wrong. And it does seem to me, as I have said, that if what I have said in paragraph 76 is correct, then it must, for the reasons I have indicated, be an answer to your latest point.

MR HARRIS: Could it not perhaps have affected sentencing? They have still said there is a breach, but we are talking seven days instead of four months maybe, or a fine instead of prison. There would not have been so many and this -- you have done this and this and this. We would have come back to a woman who basically is harassed by seeing my empty car. That could have been an argument put forward at the time to Judge Wilson.

MR JUSTICE MUNBY: I have come to a clear view on that point. It is in my judgment, and I am afraid if you think I am wrong you will have to try and persuade the Court of Appeal of that.

MR HARRIS: How quick could we get your order in today so I can use that for the Court of Appeal.

MR JUSTICE MUNBY: Mr Harris, what I am going to do, unless you want to make any further submissions, is this. I will prepare a short postscript to this judgment dealing with this new point, and in particular setting out the 1997 legal materials which nobody has previously seen before. I will do that so that the Court of Appeal, when you go to the Court of Appeal, will see the full picture.

I will give you permission -- this is a mere formality -- to amend your existing judicial review proceedings so as to raise this claim for this new head of relief. But I have come to the view, for reasons which I will set out in a short postscript to this judgment, that you have not shown an arguable case for obtaining that new relief, and therefore my overall conclusion, which is that this application for permission to apply for judicial review, should be refused, must stand.

There is this bind I am afraid. As I read the rules, I have no power to extend the seven days in the Court of Appeal, and therefore I hope to be able to produce the postscript to the judgment by tomorrow morning, but I cannot be absolutely confident of that. What I am very anxious to avoid is you being placed in a position of embarrassment where your seven days is being whittled down by the passage of time. What I am proposing to do then is this. I will produce a postscript to this judgment, I hope tonight, though if it goes in the post -- presumably it can go by fax, can it not, it is only the last few pages, which I would expect to be in a position to fax to you tomorrow. I am going to make an order dismissing your application for permission to apply for judicial review, but I am going to provide that that order is to be dated as if it had been made on the day when I fax you the postscript to the judgment.

MR HARRIS: Obviously today is ruled out for doing anything because I have to be back in Hildar(?) --

MR JUSTICE MUNBY: I am sorry, there are other people who need my help today. So that your seven days will start running from the day it is faxed to you. I would anticipate, and hope, it will get to you tomorrow, in which case your seven days will run from tomorrow. Obviously if you are going to go to the Court of Appeal you must not delay in going to the Court of Appeal, and you must bear in mind that I think the seven days for this purpose, you have to include the Saturdays and Sundays, and I think you would be wise to assume that if your seven days start running on a Tuesday, your last day of doing something is the following Monday.

I have deliberately put in the judgment a reference to the relevant rule governing appeals of this sort, and no doubt you will --

MR HARRIS: I have the forms at home. I ordered the forms that they sent to me when I saw the last paragraph so I just phoned them up and they sent me normal Court of Appeal forms apparently.

MR JUSTICE MUNBY: There may well be, but, as I say, there is this seven day time limit.

MR HARRIS: You cannot give me permission to appeal then on this.

MR JUSTICE MUNBY: No.

MR HARRIS: Because there is a very strong point here. How much out of this single order, four square sides --

MR JUSTICE MUNBY: As I understand it, until the recent change in the rules, there was no appeal at all from a refusal of permission for judicial review. What the Court of Appeal had was an independent original jurisdiction to hear the application afresh. That principle has now been abolished. There is now an appeal, but there is a special rule regulating the appeal, it is the one I have referred to. So far as I can see, in addition, quite apart from the fact it is specified as seven days, there is nothing in that rule which enables me to give you permission to appeal.

MR HARRIS: So I was at a judicial review against Pentonville Prison a couple months ago and the judicial review before me did get permission to appeal off Judge -- I cannot remember his name now. He was not the court judge who gave permission to appeal something. I mean, if it is possible, can I have it. If it is not possible, obviously I cannot get it.

MR JUSTICE MUNBY: I have come to the view that it can only be given by the Court of Appeal. In any event, I would not give you permission, but that paradoxically probably has the effect of you getting to the Court of Appeal rather sooner than you would otherwise.

MR HARRIS: Okay, all right.

MR JUSTICE MUNBY: So, Mr Harris, I am going to dismiss this application, including the further application made this morning. My reasons for dismissing the application in relation to the new matter will be set out in a postscript to the judgment which will be faxed to you I hope tomorrow. My order will be dated the day when the postscript is faxed to you. Your time limit will not begin to run until then, and you will just have seven days.

MR HARRIS: Okay, thanks.

MR JUSTICE MUNBY: Bear in mind, Mr Harris, that what you will be appealing, if you merely appeal my order, is my refusal to grant permission for judicial review. That is in the Administrative Court proceedings. It will not, as such, be any appeal, or application, by you to the Court of Appeal for permission to appeal against Mr Justice Wilson's order.

MR HARRIS: I understand that.

MR JUSTICE MUNBY: That is a quite separate matter.

MR HARRIS: Yes. We have to convince them that there is an arguable case. Yes, I think I see where we are going.

MR JUSTICE MUNBY: It is a matter for you, but no doubt you have already considered it because, if I may say so, you are highly expert in these matters.

MR HARRIS: I do not want to be. I do not want to be.

MR JUSTICE MUNBY: No, I know you would much prefer not to be. No doubt you have already considered the feasibility and, as you would see it, the desirability of mounting simultaneous applications in the Court of Appeal.

And Mr Harris, as I understand it, quite independent of what I am doing, the Official Solicitor will at some stage probably be writing answering your letter. Whether he does is a matter for him. What he says in any answer he sends you is a matter for him. What your reaction is to anything he may say to you in any letter he may write to you again is a matter for you.

MR HARRIS: Thanks.

MR SOLOMONS: My Lord, if it helps my Lord, my understanding of the permission issue is as your Lordship is there was a stage we went through where a judge was invited to give permission to appeal against his finding that it was not reasonably arguable, which I think Lord Justice Laws described as something from Alice in Wonderland in that he was being invited, I paraphrase him, to say that it was reasonably arguable that his finding that it was not reasonably arguable was reasonably arguable.

My Lord, I do seek an order for costs from your Lordship.

MR JUSTICE MUNBY: We have to do worse things in this Court. In asylum cases we have to decide whether it is arguable in this Court that the Appeal Tribunal failed to realise it was arguable that there was some ground of appeal. So mental gymnastics of this sort are not wholly unfamiliar to this Court.

You are seeking your costs.

MR SOLOMONS: My Lord, I do seek an order for costs. I do so -- I do not know if it would help your Lordship, but there is authority for the proposition that costs may be awarded on applications for permission. Perhaps I might hand up a copy to your Lordship.

MR JUSTICE MUNBY: Is that Mr Justice Collins' recent one?

MR SOLOMONS: Indeed. Your Lordship is familiar with it.

MR JUSTICE MUNBY: Just remind me the name of it.

MR SOLOMONS: It is the case of Leach v. The Commissioner for Local Administration(?).

MR JUSTICE MUNBY: That is a judgment in the last few months.

MR SOLOMONS: It was published in The Times of 2nd August 2001.

MR JUSTICE MUNBY: Yes, I am familiar with that.

MR SOLOMONS: My Lord, the justification, of course, is that if the courts did not have a permission stage in judicial review, if this were as any other type of proceedings, the case would have proceeded to a final hearing, unless it had been the subject of an application to strike out, and at the end of that final hearing or summons to strike out an adverse order for costs would, in the ordinary way, have been the subject for consideration by the court.

In my submission the Official Solicitor has been put to expense in defending these proceedings. He has succeeded in defending these proceedings, and whatever general sympathy your Lordship might have for part of the case made by Mr Harris, the usual rule that costs should follow the event, although no longer quite as strong a presumption as it was before the Civil Procedure Rules, but the discretion given to your Lordship understood part 44.3 is one which should be followed in this case.

If your Lordship were with me, I would address him on the issue of summary assessment.

MR JUSTICE MUNBY: What I have in mind is another presumption, to use a slightly inaccurate word, which one finds on page 1073 of this volume in the Practice Direction to CPR 54, paragraph 8.5 and 8.6 of the Practice Direction. In paragraph 8.6 of the Practice Direction, and it is clear from the context that the hearing which is being talked about here is a hearing in court of the sort we have been having in relation to permission, the Practice Direction says:

"Where the defendant does attend such a hearing, the court will not generally make an order for costs against the claimant."

I think I am right in saying that Mr Justice Collins' judgment does not actually refer to that part of the Practice Direction at all.

MR SOLOMONS: My Lord, it is not clear from Mr Justice Collins' judgment that there was actually a hearing in the court or whether the matter was disposed of simply on a paper application.

MR JUSTICE MUNBY: Do you have the transcript or just The Times report?

MR SOLOMONS: I only have The Times report, I am afraid. But, my Lord, on the more general issue I think -- I am just trying to places my hands upon it -- your Lordship invited the Official Solicitor to be present at this hearing.

MR JUSTICE MUNBY: Oh, certainly.

MR SOLOMONS: So, strictly, I would submit that it is either within, or close to, the paragraph 8.5 assumption, of the court directing otherwise.

MR JUSTICE MUNBY: Certainly, but 8.6 goes on to indicate, and I do not think -- 8.6 is a general provision, 8.6 is not, as I read it, limited to the case where an unbidden defendant chooses to come, it is a quite general provision -- that where the defendant does attend, that is the principle, and indeed, for what it is worth, that is the view of the editors on page 1065 in paragraph 54.12.7.

I read the transcript of Mr Justice Collins' judgment a week or two back in a completely different context, and my recollection is that the argument which was put to him, and which was successful, was based upon the change in the rules which requires an acknowledgment of service; in other words, the change in the rules which brings the defendant into the picture prior to the permission hearing. But my recollection is that he was not referred to, or at least did not refer to and therefore had not been referred to, the Practice Direction, and the Practice Direction seems to me to be perfectly clear on the subject.

MR SOLOMONS: My Lord, my submission would be that, as your Lordship says, under the old procedure the defendant was unaware of the proceedings. If he became aware because he attended, or he was to be called ex parte on notice application, then he was a complete volunteer, and although I think there may have been one or two cases where such volunteers were granted their costs, they were perhaps exceptional cases on their own terms.

Under the new procedure, in most cases again the defendant would be a volunteer, notwithstanding the claim form has been served upon them. They are not invited to the paper hearing, and if there is an oral hearing the presumption is that they need not attend. The Practice Direction is a little unclear on the point, but in my submission the proper construction of it is that it is an unusual and exceptional situation where the defendant appears by direction of the Court, and that unusual and exceptional circumstance, where the defendant has been put to expense in defending proceedings, ex hypothesi through no fault of their own or no sufficient fault of their own, that the court is going to grant relief, that the defendant should receive some indemnification in respect to the those costs. I cannot put it any further than that.

MR JUSTICE MUNBY: One of the problems, Mr Solomons, is that under the new procedure the defendant necessarily always incurs costs; that unless he simply choses not to put in an acknowledgement of service at all, a defendant is bound to incur costs in putting in an acknowledgment of service, which typically in my experience, as in this case, is not simply, 'this is all nonsense, please dismiss the claim', but condescends to helpful particularity in indicating why the claim is said to be nonsense.

Inherent in even the new system, because there is no suggestion that defendants who are successful in having cases knocked out at the paper stage should automatically get their costs, is a recognition that defendants, who, by definition, are almost always public bodies, should, in the wider public interest, have to bear their own costs of successfully resisting permission. I have to say, as I read it, the Practice Direction carries that principle through to the case where there is an oral hearing.

MR SOLOMONS: My Lord, I cannot take it any further. I would have said that it is a really matter of degree, and that the costs incurred on a paper hearing are very substantially on filling in the acknowledgement of service form, which is not obligatory, for a paper hearing, are of a different order of magnitude.

MR JUSTICE MUNBY: Sometimes they are, sometimes they are not. In this case they are. In this case I can well see that the burden of costs has been, as far as the Official Solicitor is concerned, more heavily on the oral hearing that the paper stage. It is not always necessarily the case.

MR SOLOMONS: My Lord, I cannot take my application any further.

MR JUSTICE MUNBY: Mr Solomons, I do take the view that that is what the Practice Direction means. That does not, of course, mean I cannot make an order for costs. I entirely accept I can make an order for costs. I have jurisdiction to do so. All the Practice Direction does is to indicate that because generally one does not make an order for costs in these circumstances, some reason is required justifying a departure from the general approach.

I think, looking at matters in the round, and having regard not merely to the Practice Direction but to all the circumstances of the case, this would not be a case in which it would be appropriate to make an order for costs.

MR SOLOMONS: My Lord -- I beg my Lord's pardon. The matter that I thought I should raise has in fact been resolved.

MR JUSTICE MUNBY: Therefore at the end of the day the order I make in this case is as short as my judgment is long. The order, I repeat, will be dated on the day when I send the fax to Mr Harris and to you, Mr Solomons, and being a date which I will obviously notify the associate of before the order is actually drawn. The order to be made on that date will simply be an order giving permission to Mr Harris to amend his N461 to take account of the new point, but dispensing with the new need to reserve, dismissing his application for permission to apply for judicial review and making no order as to costs.

MR SOLOMONS: I wonder if I might address my Lord on one aspect of that order, which is the dispensing with the need to reserve. If Mr Harris, as seems likely, may well wish to apply to the Court of Appeal for his permission to appeal, and it is possible that the Court of Appeal might wish that to be a between the parties hearing, it would be particularly convenient for the Official Solicitor to see the terms of the amendment at the earliest possible date.

MR JUSTICE MUNBY: Mr Solomons, I can see the force of that, but I have already quite deliberately, as you will appreciate from the terms of paragraph 53 of my judgment, because it seemed to me to be fair and also to meet the realities of the case, deliberately not confined Mr Harris to what he wrote in whichever is the relevant part of his N461, but have deliberately culled both his propositions and his prayer for relief from all the documents he had lodged with the court.

I think I am right in saying that what I have set out in paragraph 53 is comprehensive, although much of what is in paragraph 53 will not actually be found in the right place in his N461. In the same way, I will in the postscript make clear that this additional point is derived from this letter. I do not think, in the circumstances, it is going to be particularly helpful to start writing red ink and green ink across the 461.

So although I can see where you are coming from in terms of the procedure which would be appropriate to adopt if Mr Harris was not appearing as a litigant in person, I suspect it is going to be productive of more rather than less confusion in the present case if I were to accede to that. So I think I will make the order in the form I have indicated.

(Hearing ended)