England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 May 2013

1. Judge Anthony Thornton QC: The applications in each of these four judicial review claims have just been called on by the associate. The oral hearing has been arranged for some weeks. These six applications and the four judicial review claims in which they are made are all related albeit that the claims have not linked. The four claims are all brought by Dr Peter Kelway and they are brought against a number of defendants and interested parties: against the Newcastle Combined Court with Canon (UK) Ltd as interested party, that is CO/11166/2008; against the Independent Police Complaints Commission with Northumbria Police as an interested party, those are CO/3391/2008 and CO/4651/2008; and against the Upper Tribunal with Northumbria Police as an interested party, that is CO/2904/2013.
2. The first three of these four judicial review claims have had a long, indeed, possibly uniquely long, history. The fourth judicial review claim, CO/2904/2013 is a claim that seeks judicial review of a decision of the Upper Tribunal refusing Dr Kelway permission to appeal a decision of the Information Tribunal, a so-called Cart claim. That proposed appeal has also had a long and troubled history.
3. Those claims are concerned with an even more complex and lengthy series of hearings in a county court claim that was started as long ago as 12 August 1998 in the Gateshead County Court. That claim was started by Dr Kelway against Canon (UK) Ltd, the interested party in the claim against the Newcastle Combined Court. That claim, a relatively modest county court claim of relatively modest difficulty, was a claim in which Dr Kelway, having taken an assignment of a contractual claim from his one-man company, was seeking damages from Canon relating to a maintenance and service contract that Canon had with Dr Kelway's company for the maintenance of its telephone and IT equipment that were used in association with its business. The cause of action in that claim arose arose in about 1996 and concerned alleged breaches of that maintenance contract in the years 1996 and 1997 although losses were also claimed from an earlier period. One of the many remarkable features of this litigation is that it arises out of a claim of, top weight, of about £100,000 but which, even if liability could have been established, could not have been worth much more than one tenth of that sum. However, the claim never proceeded. It was dormant for several years due to the insolvency of the company and after Dr Kelway had taken an assignment of the cause of action against Canon, he failed in his application to reinstate the action that had by then been struck out and failed in his application to appeal the dismissal application. This unsuccessful attempt to appeal the dismissal application occurred in June 2003. Ever since, Dr Kelway has been involved in satellite litigation and in innumerable complaints involving the police, the IPCC, many different judges and innumerable members of the court staff in many different courts in many different applications and in many different complaints by way of recourse to the courts complaints process, the Information Commissioner and subsequent appeals and applications to the Information Tribunal and the UT, his Member of Parliament and the Ombudsman.
4. As I have said, the claim brought by Dr Kelway never reached trial because, after lengthy delays, the claim was struck out and, after yet further lengthy delays, an application to the district judge to reinstate was dismissed. There was then an application for permission to appeal which was heard by the circuit judge and, after a two-day hearing, the circuit judge dismissed the application for permission. That permission hearing took place as long ago as June 2003.
5. The subsequent extensive litigation in four separate courts, including two separate procedural appeal hearings in the Court of Appeal, an application to a High Court judge seeking to appeal rulings of the circuit judge and many hearings before various circuit and district judges extended the litigation in the county court claim for a further five years.
6. Much of the time was taken up in Dr Kelway's repeated attempts to appeal or set aside procedural orders made at earlier stages in the litigation so that the litigation, which was almost entirely conducted without any representation from the defendant Canon, began to resemble a procedural onion in metaphorical terms in which each stage was simply adding a further procedural skin to the previous many stages. But in addition to that litigation by exhaustion, Dr Kelway mounted a series of successive complaints against the Newcastle Combined Court which, in reality, meant initially the Gateshead County Court, and then when the proceedings were transferred to the Newcastle County Court sitting within the Newcastle Combined Court group, with complaints also against that court and at least two further county courts who were dealing with cost related matters which had been transferred to them as a result of his disputes with the Newcastle County Court and the Preston Combined Court as a result of his attempts to appeal and obtain permission to appeal earlier procedural orders.
7. His complaints were made against the Newcastle Combined Court, although as I say they clearly related to all the courts I have referred to, and they were multifarious. Almost every stage of the litigation gave rise to a further complaint about the conduct of his case and of the service, or perceived lack of service, that had been provided to him by court staff at each level in each of those courts. Many of those complaints were, in the jargon of court complaint procedures, escalated from the court level to the area level and from the area level to the central level. At each level the complaints were dealt with in considerable detail.
8. Dr Kelway has subsequently asserted that he has outstanding a number, unspecified, of complaints that he wishes to pursue against the Newcastle Combined Court system although, with the passage of time that has since passed, one would have thought that it is inconceivable that he is still able to make further complaints against that court system.
9. One of the complaints that he made is of some significance to what has happened since. It is a very surprising complaint which has, nonetheless, been dealt with, with particular care and attention, by the many individuals and bodies that have subsequently been concerned with this complaint.
10. This complaint may be summarized in this way. According to Dr Kelway, in one of the many procedural hearings heard at district judge level – at which, as with every other hearing, he was representing himself – he appeared before one of the district judges sitting in the county court in Newcastle Combined Court. This was an opposed application and the details of the application are not material. According to Dr Kelway's subsequent complaint, the district judge orally indicated towards the end of the hearing that he was proposing to take a certain course. It was a taxation of costs hearing that related to the previous hearing that I have already dealt with where the circuit judge had dismissed his application for permission to appeal the yet earlier refusal to reinstate his claim.
11. The district judge, according to Dr Kelway, contended that a particular order would be made and yet, a few days later, Dr Kelway received an order from the court in which an order had been made which, he contends, was to the opposite effect to the position that the district judge had indicated at the hearing would be taken.
12. Some months later during the course of his investigations as to what had happened at this particular hearing in order to make a complaint about that hearing and about those concerned with the hearing and its aftermath, and having as again was usual practice obtained a transcript of the hearing even though it was a procedural hearing held in open chambers by the district judge, Dr Kelway satisfied himself that there had been a tampering with the tape on which the proceedings had been recorded so that a particular passage had been edited out. That removed passage, Dr Kelway has since always asserted, was the passage in which the district judge's words that Dr Kelway asserts had been spoken at the hearing were removed. The effect of this removal was - again, according to Dr Kelway – that the court order to be drawn up and signed by the district judge had or would be seen to have had the opposite effect to that which was communicated orally at the hearing. This allegation or complaint concludes with the assertion that the District Judge himself doctored the tape in this way, or arranged for others to doctor it because he maliciously and deliberately wished to harm Dr Kelway and to cover up his earlier actions in deciding a procedural application in the opposite way to the way he had announced at the hearing because of his ill-will and wish to harm Dr Kelway. One of the alleged motives put forward by Dr Kelway was that that District Judge had tried an unrelated action involving Dr Kelway some years earlier and had taken against him in what turned out to be a bad-tempered and bitterly fought hearing and wanted to punish Dr Kelway when, by chance, he appeared in front of him again.
13. In support of his belief that I have generally and broadly summarised, Dr Kelway has put in evidence and relied on in the course of his various complaints made about this hearing and about the district judge the notes that he made during the course of the hearing. He also obtained the notes made by the solicitor representing the defendant Canon which, he asserts to this day, support his version of what the district judge had stated at the hearing. There is precious little other evidence as to what was said on that occasion save for the transcript of the proceedings and what the district judge is reported to have said when interviewed by the police subsequently.
14. The complaint investigation conducted by Dr Kelway led to a forensic examination of the tape. It is clear that the evidence that was produced following that examination - I believe there was more than one forensic examination by different examiners - clearly and firmly showed that the tape had not been tampered with. As is the case with forensic examinations of this kind it is clear that the ultimate conclusion was not one that, in lawyers' terms, would be described as beyond reasonable doubt. But the technical nature of the conclusion was to the effect that there was no discernible physical evidence of tampering. This was because what was being alleged was that a passage had been cut out from the tape - not physically by cutting a bit out of the tape and then pasting the tape together again because there was certainly no evidence of that - but by a process of editing out, by blanking out the sound on a particular passage, and then adjusting the sound so as to remove all sounds and gaps showing that something was now missing from the recording.
15. The forensic evidence clearly showed, evidently, that it was technically conceivable for that to have been done with sufficient precision that there was no visible or auditory evidence that there had been a deletion from the tape. Such a task was so complex technically that it would require technical skill of such magnitude that, in reality, there was no way that the district judge could have either himself or by arrangement with others have secured this editing out process at all, let alone in a way that meant that it was no longer possible to identify that the editing out had been done.
16. All that came to light not merely through Dr Kelway's investigations but as a result of a complaint that he made to Northumbria Police alleging the commission of a criminal offence or offences by the district judge that clearly, if established, would be of enormous significance and consequence for the district judge because the complaints amounted to an allegation that that judge had deliberately falsified the court record in a way that would be a serious miscarriage of justice and an interference with justice and, no doubt, a number of other serious offences as well.
17. The police were prepared to take this matter seriously, but as a result of, largely, Dr Kelway's constant prodding and complaint making, no fewer than three separate successive investigations took place. This lengthy process included, remarkably, an interview that the district judge gave on the court premises at the request of the police to the investigating police officer. Clearly and obviously that interview, which was not under caution, but was made by the District Judge being interviewed as a witness, was recorded by the police officer and may well have been signed by the District Judge.
18. The police, and this perhaps would come as no surprise to anyone save Dr Kelway, passed the file to the CPS who advised the police that no further action should be taken and the police then concluded that there was no further matter to investigate and they terminated their investigation of this complaint and made it perfectly clear that they were not proceeding further. It is clear, therefore, that the police had firmly taken the view that there was nothing further to investigate because no crime had been committed by anyone and that this was also the view of the independent prosecuting service to whom the file had been referred.
19. This did not satisfy Dr Kelway and he complained to the Independent Police Complaints Commission about what he considered to be the inadequacies of the investigation. He made many complaints about the investigation process, one of which was to the effect that the police officer, who interviewed the district judge, should have interviewed him under caution. But there were many other complaints as well. These were considered by the IPCC and fully investigated, including an investigation, as is required if a full investigation is undertaken, by a police officer. The complaints procedure concluded that there was no complaint of any kind that could be made about the mishandling of the initial complaint to the police. Dr Kelway, again, to use the jargon, escalated his complaint by way of a request for an appeal or a review by a more senior person within the IPCC. The appeal or review concluded that there was nothing of complaint about the first complaint and dismissed the appeal or review.
20. Meanwhile, Dr Kelway had concluded that he was dissatisfied with some aspect of the handling of his complaints by the Northumbria Police and he made a complaint about that. The complaint was dealt with and the police complaints procedure concluded that the complaint related to matters of operational practice, and not of police misconduct or other disciplinary process, and they concluded that they did not have any jurisdiction to deal with the complaint.
21. Dr Kelway was particularly dissatisfied at what he saw was the delay in dealing with his complaint. That appears to have given rise to a separate complaint which was not accepted, but the Northumbria Police did accept that there were internal procedures that could be improved so as to speed up what had already been, as I see it, a rapid response, certainly in terms of complaints procedures generally. But at the very least, Dr Kelway had highlighted to the police force a particular feature of their internal procedures which evidently were to be improved.
22. Dr Kelway has been wholly dissatisfied with the way that the complaint against the district judge was dealt with, with the way that his complaint about that complaint was dealt with by the IPCC and with the way that the related complaints and the unrelated complaints that he has made about the Newcastle Combined Court have been dealt with. He has started, as long ago as 2008, three separate judicial review claims, the first against Newcastle Combined Court, the second against the Northumbria Police and the third against IPCC. Those three complaints were all dismissed as having no prospects of success when first dealt in 2009 with at the paper stage of the procedure that is undertaken in the Administrative Court in filtering out those claims for judicial review that have no reasonable prospects of success.
23. Dr Kelway then returned to his complaints about the entirety of the court process that had taken place over the five-year period that I have outlined when concerned with his claim and its procedural aftermath in the various courts in the Newcastle Combined Court area. His initial judicial review claim focused on what would now be described as a Cart claim against the refusal of permission to appeal the last order made by a District Judge connection with a costs order relating to an aspect of the proceedings. It was clear from that complaint that Dr Kelway was making much more extensive complaints about the court process and was using the particular refusal of permission as the peg on which to hang a wider claim since that was the only decision of the court which had occurred less than three months before the issue of the claim form albeit that even that claim was issued out of time. In other words, any other complaint specifically geared at any order of the court would clearly have been out of time under the three-month provisions of CPR 54 and the final complaint was actually issued marginally out of time as well.
24. However, Dr Kelway, running as he was his ongoing complaints about the police force and the Independent Police Complaints Commission in parallel with his complaints against the Newcastle Combined Court, obtained a long series of adjournments of the hearing of his renewed applications for permission. He relied on, firstly, the perceived need to conclude his complaints to the Court Service and about the IPCC and Police handling of his complaints, secondly, his wish to obtain sight of the interview notes made when the District Judge was interviewed by the Police and, thirdly, on his wish to expand his judicial review claim against the Newcastle Combined Court into what became, by the beginning of 2011, a complaint about the whole seven-year process. virtually every individual hearing within that process and the whole handling of his case at every level, by every member of the court staff that had dealt with the case appeared to have been involved, in what could only be in general terms described as a systemic failure to provide him with access to justice and to process and address, by an independent tribunal, his claim against Canon. At the heart of this extensive claim was his claim that his denial of justice had been achieved by a series of deliberate and ill-motivated actions and omissions including at least one perpetrated by a District Judge which, if true, amounted to a very serious crime or crimes which would have led to a lengthy prison sentence if a conviction had resulted. He has since escalated that complaint against the District Judge into an additional complaint that that judge lied to the police in giving his statement in order to cover up his criminal conduct in arranging for the tape to be tampered with, actions which were motivated by malice and a wish to pervert the course of justice.
25. The overall series of claims were clearly a remarkable series of claims if any of them, and particularly those against the District Judge, had any substance. Nonetheless, it was one that he was seeking to present and by the beginning of 2011, that claim emerged as a detailed proposed amendment to his claim form in the claim brought against Newcastle Combined Court.
26. It was at that stage that I, who had come into the proceedings at a mid-way course of the permission renewal application stage, had to decide what, in reality, was an application to amend the claim form in order to add to the already existing complaints that I have identified. It was, therefore a very extensive proposed amendment.
27. None of the defendants in any of the three judicial reviews that had been started at that stage have taken any part in the judicial review proceedings, save for serving acknowledgements of service. That is frequently the case in judicial reviews, so none of the steps that I am now summarising were steps in which those defendants participated in.
28. A further problem with the case is that Dr Kelway lives just short of Hadrian's Wall. He has always availed himself of the video link facilities so that he has not needed to travel to London and all the judicial review hearings that have taken place have taken place have used the video link facilities between this court in London and one of the video conferencing units within the Newcastle Combined Court complex which is, I understand from a document received by the court recently, located about 30 to 35 miles away from Dr Kelway's home. There was a hearing in March 2011 at which the court was to finally resolve whether Dr Kelway should be granted permission to amend and also to conclude the hearing of his applications for permission.
29. By that stage, Dr Kelway had already received from me, by way of a preliminary and a minded-to order, a detailed summary of the reasons that I was minded to adopt for refusing his renewed applications for permission. Those were attached to an order of 19 August 2010. The order indicated that unless an oral hearing was applied for, permission would be refused on the grounds set out in this detailed document which runs to six pages. Dr Kelway did, of course, apply for an oral hearing and it was that hearing that was convened in March 2011.
30. It emerged that Dr Kelway was still not satisfied that he had submitted sufficient material to the court. I granted him permission to lodge further material in a relatively short timescale and it was to be understood that that was to be the end of the matter. I would then conclude and determine his applications for permission, allied to his application to amend, and deliver a handed-down written judgment that dealt with it.
31. Dr Kelway submitted, although later than required, yet further material. However, he had also indicated that he was by then actively pursuing his attempts to obtain a copy of the district judge's statement to the police, and other statements and papers, which had been submitted to the IPCC by Northumbria Police as part of the IPCC investigations of his complaint. Even at that stage, in March 2011, he was asserting that it was absolutely essential that this further material should be available in support of his application to amend and to obtain permission in relation to his systemic attack on the whole process related to his claim in the Newcastle Combined Court.
32. That material did not arrive and I was finally able to turn to the preparation of my judgment. This is, by now, about June 2011. I was faced as I saw it with a very stark choice. I either dealt with this series of applications in a conventional way which would be to have dismissed them on the basis of the material before me at that time with relatively brief reasons and, by reference, indeed, to the earlier draft reasons that I had already sent out the previous year. But by then there was considerable amount of additional material that had not been considered by anybody and I was dealing in reality with an assertion by a litigant that he had been denied justice over many years by the whole court system and in the course of which allegations of extreme seriousness, if there was any substance in them, had been made against the judicial members of the court system involved with his case as well as many members of the court staff.
33. I concluded that it could seem, or it might well be suggested, that the substance of his complaint, his initial claim against Canon and his complaints against the various individuals that I have referred to and his further complaints about being denied justice and a fair hearing at every turn, had never been investigated and that at each turn he had been struck out, or refused permission to appeal, and the judgments, although fully reasoned and fully sustainable, might be said to have failed to investigate or to address any of his many complaints and, instead, to have diverted attention away from those complaints by procedural means. I also understood from Dr Kelway that he wanted me to undertake a full investigation of his complaints in order to decide whether they had any substance such as to warrant a full hearing. I therefore decided to analyse his many submissions in detail.
34. I considered each of the complaints on the basis of all the material that he had filed and I concluded, and set out in a very lengthy draft judgment, a series of findings in relation to each complaint and I concluded that none of the complaints had any substance. The order that would have resulted would have been to refuse permission to amend and to dismiss the three renewed applications for permission.
35. This was a draft judgment and therefore was one that had to be handed down and, in the course of the ordinary practice, had to be sent to Dr Kelway first to enable him to suggest appropriate editorial corrections. Since the other parties were not at this stage taking an active part in the proceedings I had concluded that it was not necessary for them to be served with the draft judgment because it was solely concerned with whether, in reality, permission should be granted. Had permission been granted, of course, any claim where permission had been granted would then have proceeded to a full hearing and all parties would have had a full opportunity to involve themselves in that full hearing and to defend the claim.
36. My draft judgment was concluded in late July 2011. Between then and January 2012 it can now be seen that there were shortcomings by the court in the way that the judgment in draft form and the proposed handing down of that judgment were dealt with. The shortcomings were, first, that Dr Kelway was not notified as he should have been of the terms of the draft judgment and of the proposed handing-down date on two occasions, the first on 15 August 2011, and the second on 25 October 2011. It is perfectly clear, and I have myself investigated the matter by looking at the court file with some care recently, that at no stage was Dr Kelway notified of either date nor was he sent a copy of the draft judgment for him to consider before the handing down. The 15 August 2011 hearing never took place and the hearing was withdrawn from the list prior to the notified hearing taking place. When, on 25 October 2011, the case was listed for hand down, and I attended as I thought to hand down the draft judgment that was already available, that draft, as is now clear, had not left the building. Since Dr Kelway had not been notified of the hearing, there was of course no attendance by video link or in person from Dr Kelway. At the hand down hearing, it was not possible to ascertain whether Dr Kelway had in fact been notified of the hand down or provided with a copy of the draft.
37. I did, in open court - although there was no one in court except the associate and the usher - announce that I was handing down the draft judgment that had already been prepared and sent out to Dr Kelway. I indicated what the terms of the order would be, namely that the three applications would be dismissed. But I gave instructions to the associate that the order should not be drawn up, sealed or sent out until it had been checked and confirmed that Dr Kelway had been informed of the hearing and had received a copy of the draft judgment and had not sent in any comments or proposed editorial corrections. On receipt of confirmation of these matters, the order should be drawn up. I should then approve the terms of the order and the approved and sealed order and the handed down judgment should be sent to Dr Kelway and to all other parties involved. The handed down judgment, since no corrections had been notified to the court, would of course have been the draft judgment that I had prepared.
38. It appears that at that juncture somebody, probably the associate who was in court that day, drew up the draft order, sealed it and sent it out a few days later to Dr Kelway. But although there has been a search high and low through the relevant files, the only copy of this draft order on the court files is the draft unsealed order. A very short time ago, I think it was earlier this week, Dr Kelway has produced a copy of the order that he was sent and that clearly has a seal on it. It is most unfortunate that Dr Kelway did not, some time ago, produce a copy of that order to the court because it must have been perfectly clear to him from what the court has in recent times been informing him that the court was of the view that the only order that was in existence was the draft order that is unsealed, being the only copy of the document which is on the court file. What is also clear is that there is an internal memo on the court file dated subsequent to the date that the sealed order was sent out to Dr Kelway, which makes it clear that the court staff and I were of the view that no perfected order had been prepared and that Dr Kelway had not yet been sent an order or a copy of a judgment.
39. As I say, it is now clear that a sealed order was sent out to Dr Kelway and he immediately wrote to the court, not surprisingly, making a complaint that there appeared to have been a hand down of the judgment dismissing his claims without him having been provided with a copy the judgment or of the hand down. I recall being shown a copy of the letter and immediately informing my clerk that the court staff should be informed that the order would have to be set aside. I subsequently received a message, I assume a verbal message because there is nothing in writing, to the effect there had no order sent out and that the order was still in draft. In those circumstances, I gave instructions that the hand down hearing should be re-fixed and that the draft judgment should be sent out to Dr Kelway prior to that hearing.
40. It is not now clear why the date for the hand down hearing was not refixed until early January 2012. The date for the hearing was fixed and the draft judgment was sent out. Dr Kelway first saw a copy of the draft judgment in early January when it was emailed to him with the date of the hand down which was refixed for his convenience for 30 January 2012 Dr Kelway was invited to provide a list of proposed editorial corrections to the draft in the normal way.
41. It is clear that, at that stage, Dr Kelway was not contending that there had been a formal hand down, the promulgation of a judgment and the dismissal of his reconsideration applications because, from the moment he received the draft judgment, he contended that the judgment was in draft form, that it contained many errors which he had not had the opportunity to address and that he should be provided with the opportunity to address all of them before the judgment was handed down. Dr Kelway was informed that I would consider his objections to a formal hand down at the hearing on 30 January 2012 and that I would then rule on what, if any, course of action would take place.
42. At the hand down hearing, which in fact took place in February 2012, it was perfectly clear to me that Dr Kelway had grounds for complaint about the manner in which the court had attempted to hand down judgment on two previous occasions without informing him or sending him a copy of the draft judgment to be handed down. Furthermore, Dr Kelway stated that he regarded it as being wholly unjust for him to be faced with a final judgment containing the first full review of the history of events that had been produced without him having had a proper opportunity to answer the conclusions that I had reached. I directed that I would adjourn the hand down hearing, I would not hand down the draft, which had not in any event been sent to anyone else, and that Dr Kelway should have an opportunity of making a written submission about the contents of the draft judgment. I would then consider his comments and then send out a revised judgment in draft that took account of those comments in preparation for the revised hand down.
43. Dr Kelway accepted that proposal and over the course of what turned out to be the next three months, very detailed further submissions were prepared and sent to the court by Dr Kelway. One might have thought that that would be the end of the story and that, having taken those submissions into account and making whatever amendments to the draft I considered to be appropriate, I would achieve finality of the reconsideration process by producing and handing down my judgment in relation to the permission application in the three claims then being considered.
44. However, Dr Kelway opened up a yet further avenue in his complaint about the district judge. He had been unable to obtain copies of the relevant statements taken by the investigating police officer, including particularly that of the district judge. He appeared to be convinced that that statement, which of course he had never seen or read, would show for the first time that his complaints about the district judge and about the police and the IPCC investigations were all justified.
45. In his attempts to obtain copies of these statements and other documents, Dr Kelway initiated a subject access request directed to the Northumbria Police seeking copies of these documents under the Data Protection Act. He initially filed a request, using the DPA statutory procedure, with the Northumbria Police seeking copies of the relevant documents which was eventually refused by the Northumbria Police. He then applied to the Information Commissioner and then to the Information Tribunal for production orders. This was, at that time, the appropriate avenue of complaint from a data access refusal although the Information Tribunal has now become a First tier Tribunal within the Tribunal Service structure. Having failed to persuade the IT to direct access to copies of the witness statements, he tried to appeal that refusal, set out in a detailed and comprehensive decision, to the Administrative Court sitting as an appeal court from the IT. However, when the Tribunal Service was set up and the Upper Tribunal system was created, the avenue of appeal from the IT, which had become one of the First Tier Tribunals, was to the relevant chamber of the Upper Tribunal.
46. There was a very lengthy period of time when Dr Kelway's intended appeal remained undealt with in the Administrative Court where he had mistakenly lodged it having initially mistakenly lodged it. His intended appeal was finally transferred by the Administrative Court to the Upper Tribunal in February 2012 as a result of a direction that I gave. The reasons for the delay in the transfer have not been fully investigated and, since that delay gives rise to a further complaint or a further embryonic complaint that Dr Kelway wishes to lodge about the courts, I will not say anything more about it in this judgment.
47. However, at Dr Kelway's request, I adjourned my consideration of his comments, and the preparation of the judgment, until the conclusion of what at that stage seemed to be the imminent decision of the Upper Tribunal as to whether or not there could be an appeal from the decision of the IT First Tier refusing to direct disclosure of the relevant statements.
48. In the end, the Upper Tribunal in September 2012, directed that it was prepared to accept the application for permission to appeal although it was by then three and a half years out of time. Given the unsatisfactory history of that particular matter, the Upper Tribunal judge accepted the reference, extended time for filing it and then considered the application for permission on its merits. However, he concluded that permission to appeal would not be granted in a full decision.
49. Dr Kelway was not satisfied with that refusal decision and he has - and this gives rise to the fourth judicial review that I have referred to - initiated an application for a Cart judicial review of that refusal; that is the fourth judicial review permission application that is before me today.
50. On learning that the Upper Tribunal had refused permission to appeal, and in conformity with my direction that the adjournment of my consideration of my draft judgment in the other permission applications would come to an end once the Cart permission decision had been made, in September 2013, I issued directions for the hearing of the outstanding matters that I was still concerned with. Dr Kelway responded by informing me that he wished to apply for judicial review of the Upper Tribunal refusal decision, having first sought and obtained an unfavourable review decision from the Upper Tribunal judge. There had also previously been, I believe, an unsuccessful attempt by Dr Kelway to appeal the UT decision to the Court of Appeal. Dr Kelway informed the court that he was seeking a further oral hearing of his outstanding permission applications but that he wished that hearing to be again adjourned until after he had exhausted his attempts to obtain a reversal of the IT decision.
51. He also informed the court that he was reviving an application which is also in the list today for disclosure in the judicial review proceedings from Northumbria Police of the same witness statements that he was seeking from the UT in the data access proceedings. I had already dismissed an earlier application for discovery in November 2010. This fresh discovery application provides clear evidence that Dr Kelway had accepted that no order was made dismissing the permission applications on 25 October 2011 since, it that order had been made, he could not have made a subsequent application for discovery in the same claims since they would have been brought to an end by the dismissal order he now contends was made in October 2011.
52. Dr Kelway is now attempting, by either or both avenues of the judicial review of the Upper Tribunal decision and the disclosure procedure, to obtain copies of those statements.
53. He also accepted that he needed formally to apply for permission to amend his claim form to deal with all the matters that I had dealt with in my draft judgment because no application to amend had ever formally been issued. This application is also in today's list, the proposed amendments incorporate the draft amendments notified in 2011 and add to them. It is a further application that could not have been issued, listed and heard if the judicial review claims had already been concluded by an order made in October 2011. Dr Kelway was perfectly well aware that he had a choice, in January 2012, of accepting the draft decision that he had and abandoning his wide-ranging complaints about the whole process that he had gone through or seeking to prevent the refusal decisions being made and continuing to seek permission to mount a judicial review by way of a systemic attack on the whole process which would have required him to obtain permission to amend his claim form. He clearly chose the latter course and has acted on that choice by continuing to pursue his renewed permission applications, his discovery application, his amendment application and his attempts to obtain the judge's police statement through the Data Protection Act and Freedom of Information Act tribunal process.
54. In the period September 2012 – March 2013, the court and I have been engaged in very extensive case management with Dr Kelway in finalizing the arrangements for a complex one-day hearing of six applications in four judicial reviews. Dr Kelway has not only engaged fully in that case management, he has never during that process indicated that he intended to seek an adjournment of the hearing or suggested that three of the four judicial review claims had been brought to an end by the court order issued in October 2011. The reality has always been that the sealed order that he received in early November 2011 has always been treated as being dead or inoperative by all parties from November 2011 to the present day and that Dr Kelway is only now, in May 2013, raising that order as a reason why the hearing today should not proceed as a further procedural manoeuvre to obtain a yet further adjournment.
55. Very briefly, I now come to the events over the last six to eight weeks. In the course of the last six to eight weeks, with growing intensity, particularly in the last two to three weeks, the court - and by the court I mean myself, my clerk, the lawyer who is now assigned to these cases and various other individual members of the court staff, and even more recently my clerk's line manager and my clerk's line manager's line manager - have been, I can only use the word, bombarded with a very lengthy series of letters in e-mail form Dr Kelway which are almost entirely making complaints about the handling of his matter since 2008 and which appear to have been sent as a way of disrupting the smooth and orderly final preparations for the hearing today.
56. Until very recently the nature of these complaints has been couched in language which indicates that they are complaints rather than being directly connected with the pursuit of his six applications and, indeed, until relatively recently, he has continued to be actively engaged in the case management of those applications, particularly in extensive communications with the case lawyer. These have addressed every conceivable procedural aspect of the six applications listed today and have included discussions about the documents that are needed, the order in which the applications will be heard and as to whether or not there should be a severance of the applications for permission to await the final conclusion of his attempts to obtain copies of the witness statements. It is clear - since I have now been provided with copies of these many communications - that until relatively recently there has been a severance between complaints about the court process in terms of administration from case management discussions about the applications with Dr Kelway perusing both avenues simultaneously.
57. It would appear now, as one reads through the complaints and the correspondence chronologically, that it was only relatively recently - possibly the first indication is in a letter to me of 7 May, but even more recently in reality - that Dr Kelway was to be seen to be moving towards an application to adjourn the entirety of the applications listed today. The trigger for the adjournment application, which was finally received in an e-mailed letter sent to me directly yesterday afternoon, would appear to be Dr Kelway's very recently raised suggestion that his applications for permission to apply for judicial review were dismissed and a final judgment was handed down on 25 October 2011.
58. It is still not clear from his present position whether Dr Kelway is still contending that those applications were dismissed and therefore there is nothing further for him to apply for and the court is not entitled to deal with his applications at all, or whether he is merely using his complaint that those applications were dismissed as evidence of judicial misconduct by myself and by the court so that he should have an adjournment to enable him to take legal advice in order to decide what, if anything, he should do.
59. The application is contained in the letter that I have received. It seeks an adjournment of today's hearing. I will not read into the record the entirety of the letter, but the letter says, under the heading, "The need for an adjournment on the court's own volition". I pause to note that the letter is carefully not asking for an adjournment but is asking the court to adjourn of its own volition. I regard that careful choice of words as being the same thing as a request for an adjournment and I am treating it as such. Dr Kelway writes:

i. "Whilst waiting for the ruling from the Court of Appeal I am sure you would accept that it would be entirely inappropriate for parallel proceedings to be in train on the same cases and hence it is appropriate to adjourn the hearing tomorrow in [and he lists three cases, he makes no reference in the letter to the fourth case being the Cart application]."

60. He concludes:

i. "I consider I should not attend any further hearing before you without legal representation. As a litigant in person I might well find myself under judicial pressure to engage in the proceedings and hence would prejudice my position. Clearly I cannot obtain the necessary legal support at this short notice. I am therefore afraid that I must advise you that I shall reluctantly not be attending the hearing."

61. It is right that I should set into the record the fact that I have written to Dr Kelway, a letter that was e-mailed yesterday morning, in order to address what had become a mass of complaints in the last few days that had been addressed largely to members of the court staff, but had also been addressed to me through my clerk, that the proceedings were now, as a result of the hand down on 25 October 2011, irregularly constituted. When reading those recent emails, I first became aware, and this was only very recently, that there had been an application by Dr Kelway to the Court of Appeal on 2 November 2011 - which apparently remains to be determined and which, according to Dr Kelway, is now being actively investigated by the Court of Appeal. Dr Kelway's application sought to appeal the order apparently made on 25 October 2011 that I have already dealt with. Dr Kelway's recent letter suggested that it would be wholly irregular and improper for me to continue with the applications today in the light of the fact that that October 2011 judgment remained in being and the appeal remained outstanding. This is a remarkable contention in the light of what has occurred since October 2011.
62. I should also explain that a few days previously, namely on 25 April 2013, I had issued a directions order which contained, amongst other directions concerned with the hearing itself, direction 3:

i. "For the avoidance of doubt the court has not yet reached a final determination in respect of the renewed permission applications in cases CO/3391/2008, CO/4651/2008 and CO/1168/2008. The order dated 25 October 2011 is a draft order only."

63. That was issued because, at that stage, in April 2013, the court had already informed Dr Kelway that only a draft order had been prepared on 25 October 2011 and that no order had been sent out. The court was still unaware at that stage that Dr Kelway had received a sealed copy of the order at the end of October 2011. It seemed to me that it was appropriate to set at rest what seemed at that stage merely to be a concern of Dr Kelway that there was no question that that order remaining in place. I therefore issued that direction "for the avoidance of doubt".
64. I provided a much fuller explanation of what occurred in October and November 2011, following my recent investigation, in my letter to Dr Kelway that was emailed yesterday. the purpose of my sending it to him was to give him notice of what he would have to address if, as I understood might be the position, he was going to open today's applications with an application to adjourn on the basis that the proceedings were irregular in the way that I have already described. Dr Kelway only first made an application to adjourn today's proceedings yesterday in the letter which I received yesterday afternoon which was not sent to the court but instead was emailed to my clerk.
65. That lengthy background to these applications leaves me to address directly the applications to adjourn. I am refusing the applications to adjourn. In the light of the background that I have now provided, it will be clear that the court has, since 21 January 2013, been issuing directions by way of active case management for the hearing of all the applications currently listed. Dr Kelway h after the demise of the old appeal structure from the IT. as been actively participating in those preparatory steps. There can be no question but that he is ready and able to pursue all six applications today; all the papers have been lodged, they have been prepared with great care and have been methodically arranged, and it is perfectly possible for each of them to be dealt with today.
66. If Dr Kelway, in the light of any decision given in relation to the Cart, amendment and disclosure applications, considers that it would be unfair to continue with the permission applications in one or more of the three earlier judicial reviews, he has also been notified that he will be perfectly at liberty to apply for an adjournment on appropriate grounds and seek to persuade me to grant him a limited adjournment of any of the judicial review applications which can fairly be said to require determination after any appeal in any of the other applications. But, subject to that, everything is ready. Dr Kelway was directed to serve a skeleton that has not been served, but the failure to serve a skeleton is not a reason to adjourn the applications, so these applications are ready.
67. As to the basis upon which the application for adjournment is now sought, namely procedural irregularities, the outstanding application to the Court of Appeal and the need to obtain legal advice, there is as I see it no substance in any of those points. Taking legal advice first. Dr Kelway, for the last 12 years, has conducted the entirety of his proceedings in every court, tribunal and complaint body as a litigant in person. One thing is clear from his conduct of his case through that decade or more of litigation, is that he is as fitted, if not better fitted, to present cases than most of the lawyers who appear in these courts. His grasp of the procedural details and technicalities of litigation is clearly enormous. He has therefore no need now, at the 12th hour, to seek legal advice. If he did feel he needed legal advice, he has had the opportunity to obtain it many months ago if he so wished.
68. He then complains of procedural irregularities. These are, as I see it, directly associated with the application to the Court of Appeal. For the reasons that I have already summarised, which are set out in greater detail in the letter that will be placed on the court file which was sent to Dr Kelway yesterday, there is no substance in his complaint that there remains in place an order dated 25 October 2011 and a judgment that was handed down on that occasion dismissing his applications for permission.
69. I will, however, read the passage in which I draw together the procedural history into a conclusion as to why there is no surviving order and why the applications that he is making today remain for consideration. I wrote:

a. "However, in procedural terms, the following conclusions arise:

70. No hearing occurred on 15 August 2011.
71. The sealed order issued to Dr Kelway by the court was irregular in that it had not been approved by the judge, had been issued without Dr Kelway's being informed of the hearing at which it was purportedly made and had been made without any judgment being handed down. Moreover, a copy of the sealed order was not placed on the court file, only a copy of the unsealed order.
72. The court and Dr Kelway acted at all times thereafter on the basis that permission applications were still live and that no perfected order had been made. In particular, arrangements for a handed down hearing were made for the draft judgment to be sent out. After the draft judgment was sent out it was recalled to enable Dr Kelway to make detailed submissions about its content. An application for discovering one of the judicial reviews has now been made and an application to amend one of the judicial reviews is also now being made. Finally, detailed arrangements for a further oral hearing, and for these applications and for permission applications have been made, in which Dr Kelway has fully participated and is attending court via video link to argue them on 24 May [that is today].
73. For the avoidance of doubt the court issued an order dated 25 April 2013 whose effect was to vacate and withdraw the order of 25 October 2011 if it was and remained a valid order. It follows that at the application hearing tomorrow, 24 May 2013, the hearing will be conducted on the basis that all four judicial review claims are live and all the reconsideration applications are also still live and in progress and that none of the claims or the applications have been dismissed, withdrawn or abandoned."
74. So far as the Court of Appeal is concerned, although Dr Kelway asserts that I have known since November 2011 that he had lodged with the Court of Appeal a notice of appeal against the order made and the judgment handed down on 25 October 2011, I was not myself aware of it. Moreover, he had never sent a copy of the Court of Appeal application notice to the Administrative Court until a copy was sent as an attachment in a very recently received email. I myself was not aware of the application until I was provided with a copy of that email and its attachment that Dr Kelway forwarded very recently to the court. No further step appears to have been taken in that application and Dr Kelway has not forwarded copies of any correspondence, emails or applications that he has had with the Court of Appeal. All that Dr Kelway has provided by way of further information is an assertion that he has been in contact with the Court of Appeal, presumably by telephone, and that the Court of Appeal official that he spoke to was surprised at the suggestion that there was no valid order still in place dated 25 October 2011.
75. I have asked that the Administrative Court should send to the Court of Appeal, to be placed on the appropriate file, a copy of the letter that I wrote to Dr Kelway dated 23 May 2013, and the Court of Appeal will be provided with a transcript of this judgment, a copy of the sealed and unsealed orders of 25 October, a copy of the order that I have referred to, dated 25 April 2013 and a copy of the order that I propose to make in a moment, in which I will formally set aside the order of 25 October 2011 if, and to the extent that it has any further validity, that setting aside will be made under the slip rule.
76. So far as I can see, having carefully investigated all the matters I have now summarised at some length, there is no surviving order against which an appeal can be brought, save possibly an appeal against the order that I made on 25 April 2013 and a possible appeal against the order that I am about to make.
77. No notice of appeal has been served as I understand it in relation to 25 April 2013 order and no protest was made by Dr Kelway about that order being made and indeed there has still not been any protest about that order. In those circumstances it is not, as I see it, a reason to adjourn today that there is an outstanding appeal that should be dealt with by the Court of Appeal, or that there has been procedural irregularity of a form that requires me to adjourn today's proceedings.
78. I will finally say about the events on 25 October 2011 and, immediately following it, that it would appear with hindsight that there were mistakes made at that time. Indeed, as I say in my letter to Dr Kelway:

i. "It is clear in the period July 2011 until early February 2012 you were poorly served by the Administrative Court and I apologise for that poor service and to the discourtesy that you were shown in that period by the Administrative Court."

79. I was particularly referring to the failure to inform Dr Kelway of the proposed hand down and then the proposed re-fixed hand down, and the issuing by the court of a sealed version of the order that was intended to remain a draft following the re-fixed hand down. But whatever may be said to have been irregular about those events, that irregularity no longer has any bearing on the validity of the present proceedings for the reasons that I have already given and furthermore, as it turned out, these irregularities have not caused Dr Kelway any prejudice in the conduct of these judicial reviews because, in the period in question, although Dr Kelway should have been informed of the proposed hand down, the first hand down hearing never took place and the second hand down hearing and the subsequent issuing of a sealed order were not such as to lead to a hand down of a judgment or the making of a valid order, the order that was made was rapidly withdrawn and Dr Kelway and the Court have proceeded since early November 2011 until the present on the basis that that order was either never made or was made and rapidly withdrawn. Finally, insofar as an order was issued, it should not have been issued and it has now been revoked under the slip rule in orders issued in April 2013 and in the order I will make today.
80. More importantly, Dr Kelway was, as subsequent events have shown, not wishing to have a hand down or conclusion of the judicial reviews at all at that stage. He was still actively seeking copies of the statements relating to the allegations against the district judge and wanted to use their contents in support of his judicial review applications once he had obtained copies of them. Once it became clear to him that a hand down was to take place, which would have been a regular hand down, he sought and obtained an adjournment of the judicial review proceedings and of any hand down or order bringing them to an end to enable him to conclude his attempts to appeal the IT's decision, to finalise his attempts to obtain copies of the statements and to take advantage of their contents in his outstanding permission applications.
81. In terms of these applications there is absolutely no reason why I should adjourn, save that Dr Kelway is not here. I do not propose to adjourn on that ground. What I propose to do is, first of all, to make an order formally setting aside the sealed order of the court dated 25 October 2011 for the reasons that I have now set out at length. I will then bring the oral hearing of the six applications that are before me to an end and reserve judgment. I will, if necessary and in the light of that judgment, also give judgment as to whether I should impose an Extended Civil Restraint Order, a matter that I have already given him notice that I will consider if appropriate. I will also treat Dr Kelway's various communications to the court as evidence supporting applications to recuse myself, to dismiss his current applications on the grounds that they have already been decided by the order he contends was made on 26 October 2011 and to adjourn his applications to enable him to take legal advice and to refer what he contends are wholly irregular proceedings to the Court of Appeal to enable that Court to give directions. I will give judgment in relation to all those matters.
82. I intend to send out to Dr Kelway a copy of the reserved judgment (or if convenient separate judgments) in these eight separate matters within 21 days of the sending out of this judgment to Dr Kelway and to arrange for a hand down in open court of the judgment of all six applications 14 days after the judgments are sent out. I make it clear that the judgment or judgments that are sent out will have the status of draft judgments until handed down but they are draft in the sense that they may not be shown to anyone save any person from whom Dr Kelway is taking legal advice from (that is a solicitor or barrister with a practicing solicitor) and to no other person (unless I have authorized that following an urgent application by email to my clerk for permission to show it to that other person or people who must be identified and their relationship to Dr Kelway identified and the reasons why that person or people are to be shown which parts of which draft judgment. The only amendments that will be considered to those drafts are proposed editorial corrections which must be emailed to my clerk at least 24 hours before the hand down or following any amendments(if any) resulting from any successful application for a reconsideration (see paragraphs 80-81 below for what is referred to be "a reconsideration").
83. I should record that I propose to proceed in reaching final judgment in these matters to take into consideration the voluminous material that Dr Kelway has submitted in relation to each of the applications since 2011 until the present. There is in reality nothing further as I see it that Dr Kelway could in fact say by way of oral submission to any of these applications that is not contained in the submissions that he has already made. There is no prejudice to him in not being here to address me even though a full day has been set aside had he chosen to avail himself of that opportunity.
84. If, within the next 14 days after this judgment is sent out, Dr Kelway issues an application to set aside the order reserving judgment under CPR 39.3(1) so as to reopen the hearing of any of these applications on the grounds that he was not present today (a "reconsideration hearing"), he is of course at liberty to issue that application. But I would wish to make it clear to Dr Kelway that the application, if it is to be made, must be made by formally issuing an application in the appropriate form supported by a witness statement and if it is made, I will addressed it in my judgments to be handed down. I will consider, and if necessary, grant the application. If I grant it, I will hear the reconsideration of the matter or matters requested for reconsideration at the handing down hearing hearing. If I do not grant it, the handing down will take place as directed. I am not inviting Dr Kelway to do that, merely drawing to his attention the provision of the rules that allows a set aside application be made on notice and with good cause if the hearing was conducted in the absence of a party and his representative (if any).
85. Of course, the application can only be granted for good cause. The fact that an application is made does not mean that it will be granted in this case. It can only be granted if I can be persuaded that, notwithstanding all that I have said in this judgment, and notwithstanding the history of the matter, it is nonetheless appropriate, fair and just to grant it. I would need to know in relation to each of the six applications and the additional matters including the ECRO matter that an oral hearing is requested, the basis upon which the application is being made and the purpose of seeking it.
86. I will arrange for a copy of this judgment is transcribed and it will be sent to Dr Kelway as soon as it is available.
87. In view of the unusual if not unique circumstances of this case I am prepared to direct, and do direct, that the transcription of this judgment should be at public expense. I do so largely because the expense that has been incurred already in terms of the time that has been taken up by so many members of the court staff in so many courts in the North of England and in the Royal Courts of Justice has been almost incalculable. Amongst my other functions, it is clearly my function as the current case manager, to give effect to the overriding objective which is, so far as is possible, to conduct the proceedings in a manner that ensures so far as is possible that proceedings are conducted expeditiously, fairly and economically. Therefore, the cost of the transcript at public expense seems to me to be proportionately, significantly less than the additional costs that might well be incurred if that transcript is not made available at the earliest possible opportunity.
88. The handing down hearing will take place by video link between the Newcastle Combined Court video conferencing centre and the Administrative Court in London.
89. An order was made in draft, was corrected and signed by Judge Anthony Thornton QC and was sealed and sent out. This judgment was corrected in draft by Judge Anthony Thornton QC and was then transcribed and sent out.
90. This judgment was sent out with a further order giving effect to the hand down arrangements set out in the judgment which is as follows:
91. The hand down provisionally arranged for Wednesday 12 June 2013 will not take place on that day.
92. This judgment will be sent out to Dr Kelway on 12 June 2013.
93. The hand down arrangements set out in the judgment are to be issued as an order of the Administrative Court.
94. If Dr Kelway wishes to apply pursuant to CPR 39.3(1) to set aside the order dated 24 May 2013 reserving judgment and applying for an oral hearing on any matter upon which judgment is reserved by that order, being any of the six judgments, the judgment addressing the recusal, illegality and referral to the Court of Appeal applications and the possible imposition of an ECRO that application must be made promptly and, in any event, must be issued on or before 26 June 2013 in an application notice and in compliance with CPR 39.3(5) (a reconsideration application).
95. Such application must be served on the Administrative Court and marked for the attention of Judge Anthony Thornton QC.
96. Reserved draft judgment or judgments will be sent to Dr Kelway on Wednesday 3 July 2013 to include any ruling on any application made under CPR 39.3(5).
97. The draft judgment or judgments may only be shown to a legal adviser (a solicitor or barrister with a practicing certificate or an employee of a practicing solicitor) unless Dr Kelway has previously sought the permission to show it to another from Judge Thornton and has been granted that permission).
98. Any permitted re-opening of the hearing will take place on Thursday 18 July 2013 at 10.00am.
99. Handdown of the reserved judgment or judgments will take place on Thursday 18 July at 10.00am.
100. COURT ASSOCIATE: My Lord, can I ask that you order that the video link is now switched off.
101. JUDGE THORNTON: I now direct that the video link be closed. I would thank the representative in the Newcastle Combined Court who has been sitting in the video link centre in that court through the proceedings this morning for his attendance today and invite him to close the link.
102. MR LEWIS: Thank you, your Lordship.
103. JUDGE THORNTON: Thank you very much.
104. I now reserve judgment.