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
		29 October 2015

See also: [2016] EWCA Civ 951

1. MRS JUSTICE MCGOWAN: This is an adjourned application by Lewis J on 7 July 2015. As Mrs Vlad is a litigant in person and because this case has a long history, I have allowed leeway as to timing to enable her to say all that she felt it necessary to say.
2. This arises out of continuing divorce litigation which has clearly caused a good deal of hurt and pain. The grounds of complaint in respect of the temporary ombudsman's decision, which are lengthy and detailed, are dated 30 October 2014 and run to 81 paragraphs. The history of that litigation is not something that I need deal with for these purposes other than to say that a succession of judges had conduct of the case at different times.
3. The complaint relating to judicial conduct was set out by Mrs Vlad and appears behind the complaint form which is at C56 and 57 of the bundle and is identified in these proceedings as being the first complaint. It is described as not fulfilling judicial duty and it goes on to set out a succession of complaints against various judges.
4. The proceedings which have given rise to those complaints were itemised by date in that complaint and although there are problems with incorrect dates used at other parts of the bundle, the dates are accepted to be accurate in this complaint form, which means that the itemised complaints go back to 15 April 2010, continue through November 2010, October 2011, February 2012 and 29 May 2012. It is significant that the complaint is made one year after that last hearing, namely May 2013.
5. It is said by Mrs Vlad that those combined complaints are in time because when one looks at the regulations, which are in Statutory Instrument No 676/2006, which deals with judicial appointments and discipline, at regulation 4, the time limits within which a complaint must be made are set out. 4.1 reads:

"A complaint must be made within 12 months of the event or matter complained of."

Regulation 4.2:

"But a complaint relating to a continuing state of affairs may be made at any time while that state of affairs continues or within 12 months from when it ends."

6. The argument that Mrs Vlad advances today, as she has advanced consistently throughout these proceedings, is that a continuing state of affairs is the same, or at least for these purposes is the same, as the continuing litigation arising out of the divorce.
7. That, I am afraid, cannot be right. As Mrs Vlad herself has told me today, her divorce proceedings are still continuing and are likely to be resurrected in still more litigation.

8. MRS VLAD: I'm sorry, if I may interrupt you, the reason why it's continuing is because of the new evidence that the husband submitted in April. It wasn't continuing when I had the complaint, it just came this year.

9. MRS JUSTICE MCGOWAN: Mrs Vlad, I understand that.

10. MRS VLAD: Okay.

11. MRS JUSTICE MCGOWAN: But the point that I make, which is how I interpret the regulations, as the defendants interpret them, is that there is in some cases no end to litigation and new evidence may arise, fresh appeals may be brought, claims may arise either directly to the point in issue or ancillary to it, and the whole purpose of these regulations is to govern the bringing of complaints in allegations of judicial misconduct. That is what the course of the continuing state of affairs relates to, not the litigation within which the proceedings are brought.

8. Mrs Vlad herself, earlier today, used the example of a judge throwing a shoe at a party. Now, if a judge were to throw a shoe at a party it could not possibly be right that complaint should not be made about that conduct for months or years after the event whilst the litigation continued. The whole purpose of the regulations and the process is to enable members of the public to bring complaints when they allege judicial misconduct so that those complaints can be speedily, fairly and properly investigated. It is clearly in the interests of the public, of the individual complainant and indeed the judge who is the subject of a complaint that these matters are investigated within reason as speedily as possible, as is true of all such proceedings. It is in everybody's best interest that something that is to be contentious (and these matters of judicial conduct, complaints, are often contentious) must be dealt with while matters are fresh in people's minds and it must be right that the public is assured that if there are instances of judicial misconduct they are brought to the attention of the relevant authorities as quickly as is reasonably practical and dealt with as soon as is possible. It cannot be that the regulations in using the phrase "continuing state of affairs" mean that that is the litigation in which the parties are involved or over which the judge is presiding.
9. That being said, it was entirely within the remit of the defendant to find that the majority of the complaints brought by Mrs Vlad in May 2013 were in fact out of time.
10. There is a lot of correspondence both by email and in hard copy between the parties, but it is clear that by the late summer/autumn of 2013 Mrs Vlad was being advised by the defendants that the regulations that controlled or governed the procedure were about to be changed.
11. It was accepted by the defendant that that was not done in a particularly satisfactory manner and indeed I suspect the way in which it was done has served to prolong these proceedings. But whether or not that explanation was given as clearly and as comprehensively as it might have been, the fact of the matter is that the regulations did change and on 1 October 2013 a new statutory instrument dealing with judicial appointments and discipline came into force. It has a number of different provisions but the most important for these purposes is that relating to the timing of the bringing of a complaint and indeed what should happen as to whether or not the complaint or any part of it is referred to the Lord Chancellor and the Lord Chief Justice in their combined but separate roles following on from the Constitutional Reform Act 2005.
12. The process so far as Mrs Vlad's complaint is concerned continued and indeed by 4 November 2013 she was being written to by Miss Hughes, head of casework, it was pointed out to her that the effect of the new regulations was such, as she had been told earlier in the summer by Mrs Morrell, that she, Miss Hughes, would assess her complaint in accordance with the new guidelines and that she would be the person who would fulfil that function rather than the Lord Chancellor or the Lord Chief Justice.
13. The process continued, it is right to make clear, as must already be apparent, that this is not a linear process, it is not the case that one person conducts an inquiry which then stops and the matters are handed on, it is clear from the correspondence that Mrs Vlad was told in terms that draft reports were in the process of being prepared, that a final decision or a report had yet to be finalised but that those draft reports would, in fact, be sent to the Lord Chief Justice and the Lord Chancellor on 15 July 2014.
14. Again, the correspondence is frequent and lengthy and it does not, I think, need to be rehearsed here. There is an error as to date and I make no criticism at all of Mrs Vlad when she in fact referred to one of the earlier instances as against Her Honour Judge Pearl as occurring in April 2013 when it in fact had occurred in April 2010. But that being said, that mistake, totally unintentional as it was, was enough to cause the defendants, through one of their staff, to write to Mrs Vlad saying, "We're unsure, please confirm your dates. You have referred at one stage to this date. Please confirm your dates".
15. Mrs Vlad takes issue with that and says the dates to which she referred were obvious and irrespective of any typographical error they should have known precisely the dates to which she was referring.
16. On 4 March 2014 the investigating officer, John Critchfield, wrote to Mrs Vlad setting out the various powers and provisions relating to the conduct by the ombudsman of such an investigation, saying in terms:

"I am the investigating officer assigned to consider your case. My role is to consider the points that you made in your complaint and the process by which the OJC/JCIO considered your complaints. I will prepare a report for the ombudsman setting out the facts of the case. This will form part of the evidence on which the ombudsman will base his decision as to whether there was any maladministration in the process."

17. It is stressed clearly in that letter that the report to be prepared by the investigating officer would only form part of the evidence upon which the ombudsman would eventually reach his decision.
18. For reasons which need not be dealt with in this judgment, a temporary ombudsman had to be appointed to deal with the case, the matter proceeded and following on from a number of references to a draft report or a report which is yet to be finalised, phrases of that sort, the final report of the temporary ombudsman was prepared and was provided to Mrs Vlad.
19. That is a lengthy, detailed, cogent, well-researched and reasoned report. I understand entirely that Mrs Vlad does not agree with its conclusions. But that is not to be determined by me in this hearing. I am not sitting in any sort of appellate capacity to deal with the conclusions on the facts as determined by the temporary ombudsman. I am asked to look at the process, as Mrs Vlad refers to it, and I have, and whilst I accept, as indeed the ombudsman did (as I find that he would be obliged to do so doing his job properly and fairly), that the transition, and I use that word in the lay sense, the transition from the 2006 to the 2013 regulations could have been explained more clearly and more effectively to Mrs Vlad, who as a litigant in person is entitled to receive explanations of that sort from a body such as this in the most clear terms.
20. But all that being said, there is nothing arguably capable of a successful judicial review in the process adopted by the defendants under whichever acronym they were operating at the time.
21. The merits of the complaint are raised by Mrs Vlad in passing. Those too were matters investigated fully and properly, in my view, by the temporary ombudsman. His decisions were based, as they must be, and as they were properly set out and demonstrated to be, upon the report provided to him by the investigating officer's report. These are proper means by which material is collected by an ombudsman fulfilling this function. There are different sources of materials. No doubt the correspondence and complaints from Mrs Vlad, the court records and judgments and a number of other different sources of material, all of which were investigated, as his job title suggests, by the investigating officer, were put into a report and used by the temporary ombudsman in the final compilation of his report.
22. Those reports and the process were referred to on a number of occasions as being either "draft" reports or "reports in the process of being written but not yet finalised". There is nothing in the complaint that Mrs Vlad now makes, which is that somehow the conclusions of the ombudsman were tainted or that his ultimate decision was pre-judged on the basis of information provided to him. He was obliged to look to the different sources of material, which he did. He has itemised what he saw in his report and has cogently addressed the various issues which he took into account in reaching his conclusion.
23. I regret that Mrs Vlad has found the process of litigating her divorce as distressing as she clearly has but these complaints were not in the main properly brought within the time limits, more generous then than they are now. They were properly adjudicated upon by the ombudsman, properly determined by him and there is nothing, as I say, either within the scope of his report or the process upon which he based the conclusions he reached in that report that is properly arguable and, in my view, nothing that would have any realistic prospect of success on a full application for judicial review.
24. Finally, lest there is any doubt, when one looks to the 2013 regulations it is clear that they, alongside any other statutory instrument, are made and laid before Parliament in order to be given effect. They are not something within the gift of the defendant in this case any more than they are within the gift of any other ombudsman or similar body. They were brought into force, it is clear, as is set out in the explanatory note which follows at page 10, to make provision for the investigation and determination of complaints of misconduct by a judicial office-holder, senior coroner and area coroner and assistant coroner or an officer that has been designated within the terms of Constitutional Reform Act. It then sets out in very summary form what each of the four parts of the statutory instrument seek to achieve. The idea that the ombudsman would have it within his power to bring into effect such a statutory instrument cannot be sustained and certainly not that he would do so in order simply to defeat one particular claim.
25. It is, as I said at the outset, entirely in the public interest that claims of this sort are determined as speedily and as effectively as is possible. The claim must relate to the alleged misconduct and the state of affairs is the state of affairs relating to that alleged judicial misconduct and not to the wider scheme of the litigation, which, as Mrs Vlad has demonstrated this afternoon, might continue for years, if not decades.
26. Accordingly, Mrs Vlad, this application is refused.
27. Mr Deakin?
28. MR DEAKIN: My Lady, Mrs Vlad made an application for a protective costs order. I think it follows from your refusal that that is gone. If I could ask you to confirm that.
29. MRS JUSTICE MCGOWAN: Was that not deal with by Lewis J earlier?
30. MR DEAKIN: My understanding is it all here today, my Lady.
31. MRS JUSTICE MCGOWAN: As I hope is clear from the decision in today's application, I do not grant a protective costs order.
32. MR DEAKIN: I am grateful, my Lady. The second point is then the costs of today. My Lady, the defendant would ask, unusually, not only for the costs of the acknowledgement of service in this case but also for the costs of attending and preparation for today. As your Ladyship is no doubt aware, the case of Mount Cook is clear that the ordinary course for permission hearings is that, should the court so order, only the costs of preparation of the acknowledgement of service will be awarded. However, it is also clear, in my submission, from that judgment that in exceptional circumstances the costs of attendance can also be recovered. In this case, I rely most heavily on the order of Lewis J. Lewis J clearly indicated, if not quite ordered, the defendant to appear. It was intended that this application be on notice and the reason it was on notice was that so all issues could be ventilated. Given it was necessary for the defendant to attend, I would ask for those costs. I do not know whether your Ladyship has received the printout. Mrs Vlad has received that printout. The costs to date, including attendance today of me and my instructing solicitor amount to £6,620. That is £4,470 of work by the Treasury Solicitor, £150 for the extension of time application, my reading in and skeleton argument taken together come to £1,300, another £100 of letters and then £600, as I say, for my instructing solicitor and my attendance today.
33. MR DEAKIN: The final figure comes in at £6,620.
34. MRS JUSTICE MCGOWAN: Mrs Vlad, what do you say about costs?
35. THE CLAIMANT: I actually oppose those costs because this application could have been dealt with on paper easily, we would not have had to go through this length if the defendant would have complied and with procedure and obviously the court in the first instance when Mrs Justice Rose made that decision wrongly and based on their defence, which, as I said, is still wrong the way they approached the court, the way they warranted the sentences and they presented the evidence to the court. So they engaged in a number of letters and in the process, in a very lengthy process, to determine the outcome of this application. For that reason I oppose the costs. It's unreasonable for the defendant to stretch the litigation and the investigation process.
36. MRS JUSTICE MCGOWAN: You have estimated your own costs, have you not, for today?
37. THE CLAIMANT: I did, and that is all the letters and everything that I submitted.
38. MRS JUSTICE MCGOWAN: What was your total figure?
39. THE CLAIMANT: Around £9,085. It's been since 2011 making a decision.
40. MRS JUSTICE MCGOWAN: It seems to me that the defendants are entitled to their costs and in light of Mrs Vlad's assessment of what her own costs would have amounted to, I cannot see that a figure which is approximately two thirds of that as claimed by the defendant is unreasonable. Whether you should have your costs for applying for the extension of time or not seems unarguable. It is not much, I suspect, by way of comfort to Mrs Vlad but you can have the figure you seek less the costs relating to the application for the extension of time.
41. MR DEAKIN: I am grateful.
42. MRS JUSTICE MCGOWAN: Mrs Vlad, thank you very much for the way in which you have presented your argument. Being a litigant in person is difficult and daunting. You have more skill, I think, than you realise.
43. THE CLAIMANT: In terms of the case, because at least for the public benefit and my benefit, I'm not sure at this stage if I should be asking for permission because I would like to have a few terminologies and issues that you approached reviewed by another court, if I need permission from you. It's just for the benefit of the entire process.
44. MRS JUSTICE MCGOWAN: I suggest that you give yourself a day or two to decide what you want to do next. I am not certain that you have any further avenues so far as this matter is concerned. But you do not need to make any application today.
45. THE CLAIMANT: I have 14 days, I understand, to write to you, to the court, yes.
46. MRS JUSTICE MCGOWAN: I suggest that you make sure the defendants are copied into anything that you write into the court. Thank you both very much.
47. MR DEAKIN: My Lady, I ought to know this but I am afraid I do not, it is not clear to me even though this is a oral hearing whether Mrs Vlad needs to apply orally to you. Of course we would be happy to come back to do that.
48. MRS JUSTICE MCGOWAN: I think it is better that Mrs Vlad has a day or two to take stock rather than trying to pursue this orally this afternoon. If it is to be orally, then I would be very grateful to receive something in writing first, just so that we can make the hearing much shorter.
49. THE CLAIMANT: Can my Lady repeat what the hearing is about.
50. MRS JUSTICE MCGOWAN: I am giving you breathing space to make a decision about whether or not you are going to pursue anything further.
51. MR DEAKIN: We can check that and let Mrs Vlad know.
52. MRS JUSTICE MCGOWAN: If you would be good enough, please, to let Mrs Vlad know what it is she needs to do next, if anything.
53. THE CLAIMANT: I can take legal advice on that, that is not an issue, but I understand I have 14 days and that's by way of application. If that application is made, would I require an oral hearing?
54. MRS JUSTICE MCGOWAN: Mr Deakin is going to check that to make sure that you do not miss the date.
55. THE CLAIMANT: It's just that I'm a bit concerned about your view about the continuing state of affairs and that is what I would like a higher court to take a look at. I'm not saying you're wrong, I just wouldn't mind waiting and getting advice.
56. MRS JUSTICE MCGOWAN: Before you leave this afternoon, between you and Mr Deakin decide whether or not you have to come back and do it orally or whether you can do it in writing.
57. THE CLAIMANT: I mean, I can give you the answer right now: on paper, I can take a paper on that, it doesn't have to be orally.
58. MRS JUSTICE MCGOWAN: That is why Mr Deakin is going to help you by checking in the rules just to make sure, so we do not end up arguing another point of pure procedure. Thank you both very much.