Planning - reasons for refusing to sign an application for a new order of justice.
Before : |
Sir William Bailhache, Bailiff sitting alone. |
Between |
Michael John Neville |
Plaintiff |
And |
Ian Gorst |
First Defendant |
|
Tom Walker |
Second Defendant |
|
Kristina Moore |
Third Defendant |
|
Deidre Mezbourian |
Fourth Defendant |
judgment
the bailiff:
1. On 11th May, 2018, my Judicial Secretary received an order of justice (the "new order of justice") from the plaintiff in this case. It was put before me for signature pursuant to Rule 20/5 of the Royal Court Rules 2004 which is in these terms:
"(1) An order of justice must be signed by the Bailiff or by an advocate or solicitor unless an interim injunction, arrêt entre mains or other judicial act is sought therein, in which case it shall be signed by the Bailiff.
(2) Any solicitor who applies to the Bailiff for an order of justice containing an interlocutory injunction must give a written undertaking to the Bailiff that he or she has instructed an advocate in relation to the proceedings."
2. I have refused to sign the order of justice and I now set out my reasons for doing so.
3. In numbers of paragraphs in the new order of justice, the plaintiff refers to a previous order of justice which he has brought. I understand from the subject matter of the new order of justice that this is a reference to an order of justice [2016/301] which I authorised for service on 17th October, 2016. It appears to have been served on the first three defendants, Mr Keith Bray, Mr Jeremy Bolton and Mr Andrew Scate on 18th October, 2016, and on the fourth defendant, the States Employment Board on 19th October, 2016. By a second existing order of justice [2016/203] the plaintiff claims relief against eight defendants. Two defendants are common to both actions. The content of those orders of justice relates to proceedings brought against the plaintiff in the Magistrate's Court in August 2010 by the Chef de Police, Centenier Scaife and relates to four planning charges.
4. On 12th January, 2018, a summons to strike out both sets of proceedings was brought by the advocate for all four defendants. This was due to be heard by the Master, but at his suggestion, the summons was withdrawn and the whole action was stayed pursuant to the principle that le criminel tient le civil en état. A consent order signed on 13th February 2018 agreed this course of action and contained the additional provisions that the stay would be terminable on 21 days written notice by or on behalf of either party.
5. The function of the Bailiff in relation to Rule 20/5 of the Royal Court Rules was considered by me as Deputy Bailiff in In the matter of the application of Syvret [2014] (1) JLR 71. The conclusion which was reached there was that whereas lawyers could broadly be expected to adhere to the normal rules of pleading, the same was not necessarily true of litigants in person who had no legal training, and there was a need to ensure that the court processes were not clogged up with proceedings that were defective on their face or otherwise improper. That is the explanation, with litigants in person, for the requirement for the Bailiff's signature on their order of justice.
6. I also indicated in the same case that it was very important for a judge, when considering whether or not to sign an order of justice on behalf of a litigant in person, to have regard to the fact that the putative litigant has a right of access to justice. If therefore it is possible when reading an order of justice put before the Bailiff for signature to ascertain or identify a cause of action, that order of justice should normally be issued by the Bailiff if so requested, even though it may subsequently be liable to be struck out by the Court on any of usual grounds upon which an order of justice might be so struck out.
7. I have therefore looked at the new order of justice as proposed to assess whether it identifies a cause of action against the named defendants, and I have considered whether it is, in a legal sense, a scandalous or vexatious pleading or otherwise an abuse of the process of the court.
8. I also invited the plaintiff to attend on me in chambers, which he did in the presence of a Judicial Greffier Substitute in order that he could address me on the subject of the new proceedings. This he did.
9. The new order of justice refers to the same underlying subject matter. The difference however is that whereas there are a number of allegations made about the conduct of at least some of the same defendants to the original proceedings, and in particular Messrs Bray, Bolton and Scate, there is also extensive reference to subsequent political developments hence the identity of three politicians and a chief officer as putative defendants. It is said by the plaintiff that the States of Jersey Police through its Deputy Chief Officer notified him in January 2018 that he was instigating a fresh police investigation in relation to the plaintiff's historic complaint. No doubt that was the basis for the Act of Court in February which stayed the application of the defendants in the original proceedings to have the order of justice struck out. In the proposed new proceedings, the plaintiff makes a number of averrals about what the defendants are said to have promised him in the last few years. Naturally there is no allegation of any contractual promise - these are merely expressions of political intent. Amongst some of the complaints made are references to statements made in the States, and it is absolutely clear that these cannot form the basis of a civil action in court - see for example Article 34 of the States of Jersey Law 2005 which provides:-
"Immunity from legal proceedings
No civil or criminal proceedings may be instituted against any member of the States -
(a) for any words spoken before or written in a report to the States or a committee or panel established under standing orders; or
(b) by reason of any other matter or thing brought by the member before or within the States or any such committee or panel by petition, proposition or otherwise."
10. Finally, the new order of justice does not contain any prayer for relief. The importance of a prayer for relief is that it indicates what order the Court is being asked by the plaintiff to make. Here it is not clear what order would be made. This reinforces the view that the plaintiff is anxious at what he alleges to be a failure on the part of the defendants to make good their assurances to him. There is no basis in law in my judgment for that to give rise to any claim in damages, or any claim for a declaration. I asked the plaintiff several times what Order he expected the Court to make if he was successful in these new proceedings but he was not able to give me any substantive answer.
11. For these reasons, the new order of justice does not meet any of the standards which the Court requires before the proceedings can be authorised. They disclose no cause of action in legal terms, and furthermore they really amount to satellite litigation which lies parasitically on the back of the existing proceedings.
12. The plaintiff has had some considerable difficulties with the authorities since 2009 when he was refused a retrospective planning application for permission to replace old windows in the property 17 and 19 Devonshire Place. A convenient summary of the position is set out in Commissioner Sir Michael Birt's decision on a costs appeal in Neville v AG [2017] JRC 043. As a result of a series of charges brought against him in relation to planning matters, connected with removal of the windows, the plaintiff was charged with some planning infractions and after a two day trial in 2010, he was convicted of all four charges brought against him. As Sir Michael Birt indicated in his judgment, the plaintiff was and remains convinced that some of the witnesses from the Planning Department who gave evidence before the Magistrate's Court committed perjury. He has made that complaint several times. In 2011, the police wrote to him to say they found the allegations of perjury to be unsubstantiated. In December 2011, the Law Officers' Department advised the plaintiff that the Attorney did not intend to request the institution of a criminal investigation by the police regarding these allegations of perjury. In November 2012, the Appellant filed a notice of appeal against conviction, together with an application for leave to appeal out of time. The appeal against conviction came on for hearing in October 2013, when the Attorney General did not oppose the appeal and it was therefore allowed.
13. The 2016 sets of proceedings referred to earlier in this judgment contain various allegations alleging misconduct, malicious conduct, malicious prosecution and defamation against a number of defendants. All this relates back to the difficulties with the Planning Department and the charges brought against the Plaintiff in 2010. The plaintiff considers that those events have caused him very serious financial and emotional loss and damage. Indeed, there is no doubt in my mind that what has taken place now forms a damagingly large part of the plaintiff's thinking and his life. When the 2016 proceedings were brought, the plaintiff no doubt hoped that he would see some progress in achieving a successful clearing of his name. The recent decision of the States of Jersey Police to re-open the investigation into perjury and, one presumes, malicious prosecution no doubt has given the plaintiff some encouragement; but that was notified to him in January 2018, and now, five months late, there appears to be no progress. The plaintiff's desire to start the present proceedings is rooted in finding some other way forward in the circumstances where it is alleged the then Chief Minister, Home Affairs Minister and Assistant Minister and Director of Home Affairs have all made various statements and promises to him which appear as yet to be unfulfilled.
14. As I have indicated, there is nothing in the fresh order of justice which would justify me authorising service on these defendants. There is no cause of action, no claim for relief. The essence of the allegedly broken promise appears to be that a London barrister would be appointed to review the evidence which the police obtained and identify whether proceedings should be brought by the Attorney General for one or more criminal offences, including perjury and malicious prosecution. In my judgment that is a hopeless claim. The Attorney General cannot be required to prosecute whether a London barrister thinks there is a criminal case to be brought or not. The plaintiff has no right to see the police file. If a promise were made to him by the Chief Minister to support the appointment of a UK barrister, that does not amount to a cause of action. It is not open to a politician, not even a minister, to direct the police as to how they should conduct any particular investigation, and it is similarly not open to a politician to direct the Attorney General as to how he should exercise his discretion to prosecute. The independence of both the police and the prosecution authorities from the executive is a fundamental constitutional principle and, even if the Chief Minister made the promise as alleged, any breach of it could not give rise to a cause of action.
15. Assuming it is right that the police have reopened their investigation, I well understand the sense of frustration which the plaintiff has. If it has been re-opened in the present circumstances, it certainly behoves the police to take every reasonable step to ensure that the plaintiff is kept informed about the progress of the investigations - even if he is not given the detail of what has been discovered and one can see why that might not be appropriate, it should be possible to give the plaintiff a timeline of events which will enable him to take steps to obtain progress. At present he has a set of proceedings which have been stayed pending a police investigation. If the investigation is going nowhere, he needs to be able to bring those proceedings back to life.
16. Accordingly, if it is the case that the Chief Officer of Police has authorised a fresh investigation, then no doubt the outcome of that investigation will be imparted to the plaintiff as soon as the police are able to do so in accordance with their standard practices. If after a period it becomes apparent that the supposed new police investigation is not being given any attention, then it lies within the plaintiff's power to bring the original proceedings back before the Master when he will either fail or succeed in relation to the strikeout action which the defendants to those proceedings have taken. If he succeeds the case will go to trial. If he fails, the case will be struck out but in that event the core complaint which exists in the new order of justice exists as a background but is not the basis of any claim - will fall always leaving the new proposed proceedings valueless. At all events, in my judgment they do not currently reveal any cause of action, and I do not authorise service of them.
17. It is open to the Court to reopen proceedings which have been stayed. In my judgment, it would be helpful if both the Master and the parties to the two sets of proceedings now stayed were to revisit this stay in September this year to ascertain the state of the police investigation and consider whether a continuation of the stay would be appropriate.
Authorities
Royal Court Rules 2004.
In the matter of the application of Syvret [2014] (1) JLR 71
States of Jersey Law 2005