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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kelway, R (on the application of) v Canon (UK) Ltd [2013] EWHC 2574 (Admin) (20 August 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/2574.html Cite as: [2013] EWHC 2574 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Administrative Court

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 August 2013

How FOIA deals with the personal data overlap

Index

Section	Heading	Paragraphs
	Part I - Synopsis	1-9
	Part II – General Introduction	1-13
	Part III – Application Notice Dated 26 June 2013	1-37
	Part IV – Application to Amend CO/11166/2008 – Application Notice Dated 18 February 2013	1-185
A	Introduction	1-4
B	Relevant Factual Background	5-176
B(1)	The principal claim – NE804908	5-9
B(2)	Aptech's liquidation	10-13
B(3)	The striking out of the principal claim	14-41
B(4)	The application to reinstate the principal claim	43-48
B(5)	The reinstate decision	44-51
B(6)	Application for permission to appeal reinstatement decision	53
B(7)	Application for permission to appeal	54-56
B(8)	Judge Moir's decision as to the merits of Aptech's principal claim	57-65
B(9)	Judge Moir's order	66-72
B(10)	Aftermath of handing down of Judge Moir's judgment	73-81
B(11)	Assessment of costs – District Judge Powell's hearing and order	82-90
B(12)	DK's permission application and appeal from District Judge Powell's order	91-94
B(13)	Appeal from District Judge Powell's order	95
B(14)	Judge Moir's order dated 18 June 2003	96-103
B(15)	Enforcement claim - NE311047	104-107
B(16)	Stay on enforcement	108-110
B(17)	Tape tampering allegations	111-125
B(18)	Police investigations and IPCC decisions	126-127
B(19)	Costs assessment and enforcement hearings	128-169
B(20)	Orders of 7 April 2008 and 13 June 2008	170-176
B(21)	DK's complaints to CSU	177-180
C	Conclusion – Amendment application	181-185
	Part V – Renewed Permission Applications – General Introduction	1-2
	Part VI - CO/3391/2008 – First Judicial Review Application against IPCC	1-33
	Part VII - CO/4651/2008 – Second Judicial Review Application against IPCC	1-15
	Part VIII - CO/11166/2008 – Judicial Review Application against Newcastle Combined Court	1-9
	Part IX- General Civil Restraint Order	1-2
	Part X - Overall Summary and Orders and Further Steps	1-3

HH Judge Anthony Thornton QC:

Part I – Synopsis

1. Part 1 – Synopsis of Parts III, IV and VI – IX

(1) This Part I of the judgment provides a synopsis of the Parts of the judgment dealing with the recusal application (Part III), the amendment application (Part IV), the renewed applications for permission to apply for judicial review of decisions of the IPCC (Parts VI and VII) and the NCC (Part VIII) and the decision to impose a general civil restraint order on Dr Kelway ("DK").

2. Part II – General Introduction Part III – Application Notice Dated 26 June 2013 – Recusal and Related Applications

(1) This Part II provides a brief summary of the litigation. It identifies the subject-matter of each judicial review and lists the applications that this and the related Cart judgment are concerned with.

3. Part III - Application Notice Dated 26 June 2013

(1) The contents of the emails which are alleged to show that HH Judge Thornton QC was biased or about whom there was a reasonable perception of bias because he had interfered with DK's complaints to the CSU and the Parliamentary Commissioner and had then lied to DK about their contents do not show bias, give grounds for a reasonable perception of bias, interference with the complaints procedure or mendacity. The contents which are set out speak for themselves. They merely provided the CSU with factual information about the progress of the underlying litigation to assist the CSU in reaching its own decisions as to when and how to deal with DK's complaints.

(2) The other grounds for suggesting that the judge was biased or that there is a reasonable perception that he was biased are based on these unparticularised allegations which were not supported by a witness statement setting out full particulars of the allegations and exhibiting the necessary supporting documents:

(a) He had displayed a bizarre and unprofessional case management style;

(b) He had made unreasonable and self-serving interventions in relation to DK's complaints about the way that the proceedings have been administered; and

(c) He had displayed a loss of a judicial sense of objectivity

(3) It is difficult to address these complaints without DK having provided details and particulars of them. Suffice it to say that DK had sent the Administrative Court at least 400 emails containing unjustified complaints and unnecessary requests for information over the preceding few months which had required the court staff and the judge to spend an inordinate amount of time trying to deal them. DK's unparticularised allegations of bias can be seen to be further steps in DK's attempts to disrupt his judicial review claims and to put off the day when the litigation comes to an end rather than justified complaints of judicial bias.

(4) The recusal application and all the other accompanying applications made by DK in his application notice dated 26 June 2013 were dismissed.

(5) There was no reason to delay the handing down of decisions in any of the outstanding applications and they would be handed down with the decision in relation to the recusal and accompanying applications.

(6) The recusal and accompanying applications are totally without merit.

4. Part IV – Application to Amend CO/11166/2008 – Application Notice Dated 18 February 2013

(1) The application relates to a request for permission to make a detailed proposed amendment to the judicial review claim against NCC. The proposed amendment attacks the entire proceedings as having resulted in gross and systematic violations of DK's article 6 rights as the claimant who had taken an assignment of a claim for damages which had good prospects of success. He complains in particular about the following matters that he considers he has been subjected to:

(a) Unlawful and criminal conduct by two different district judges in tampering with the tapes recordings of two different hearings;

(b) The suppression of documents that DK was entitled to be provided with;

(c) A series of decisions which were significantly and obviously erroneous in both the law and procedure that they applied and in the exercise of judicial discretion that was involved;

(d) A systematic denial of his rights of appeal from each of the adverse decisions that he was subjected to;

(e) Bias shown to him by a number of the judges who have been involved in the various hearings which adversely affected the conduct of those hearings and the resulting decisions of the judges concerned; and

(f) Systemic administrative inefficiencies, errors and incompetence by both judges and court staff that adversely affected the progress of the principal claim and his defence to the enforcement claim in general and various individual hearings and decisions in particular.

(2) Aptech, and hence DK's, principal claim was without merit, was vexatious and would have been struck out as being without merit at the first CMC hearing had it been pursued diligently from the outset. Moreover, had the principal claim proceeded diligently, a security for costs order would have been made against Aptech which it could not have met and the claim would have been stayed or struck out on the additional ground of non-compliance with such an order.

(3) There was no irregularity with any application to or order made by the Gateshead County Court in 2000 and the decision to strike the action out that is contained in the order dated 25 May 2000 was both reasonable and in conformity with the CPR.

(4) The decision dated 19 November 2002 dismissing DK's application to reinstate the principal claim was both reasonable and in conformity with the CPR.

(5) The decision handed down on 11 June 2003 dismissing DK's applications for permission to appeal the decision dated 19 November 2002 and to commit Mr Heath for contempt and that he should pay Canon's assessed costs of that hearing were reasonable and in conformity with the CPR.

(6) The procedure followed by Judge Moir was acceptable and it afforded DK a reasonable opportunity of putting forward whatever costs submissions he wished to address to the judge.

(7) Any appeal from Judge Moir's order, whether of the substantive decision or the costs decision or of both had no prospects of success.

(8) The witness statement of Mr Heath that supported WB's application to reinstate the striking out order and his further witness statement sworn in opposition to DK's reinstatement application were, as Judge Moir found, accurate, based on his reasonable belief as to their accuracy and professionally and competently prepared. There never was any basis for alleging that it amounted to perjury and that Mr Heath should be cited for contempt of court and an application to commit him should never have been made.

(9) The decision dated 27 January 2004 of District Judge Powell that the Moir order dated 18 June 2003 should be corrected by adding to the order a direction that Aptech should pay Canon's costs of the application heard on 11 June 2003 was one that he had jurisdiction to make and was both reasonable and in conformity with the CPR.

(10) There was no evidence that District Judge Powell had tampered with the tape recording the hearing of 27 January 2004, no complaint that he had tampered with the tape should ever have been referred to the police, the police were correct to dismiss the complaint on the grounds that there was no evidence to support it and the IPCC were correct to dismiss all complaints that the police officers involved had undertaken their investigations in anything other than a professional, thorough and professional manner.

(11) The only reason why DK contested the costs assessments and constantly sought adjournments was to delay the day when he would finally have to make a payment of any part of the costs orders.

(12) There was no basis for any court to adjourn any part of the costs and assessment hearings on account of DK's allegations of tape tampering and their investigation by the police or the IPCC.

(13) The stay on enforcement imposed by Judge Walton lapsed automatically when the hearing before Judge Moir was concluded and from that moment no stay on enforcement was introduced or was in force.

(14) There was no basis for appealing the cost assessment orders or any order refusing permission to appeal any adjournment application or any other order made during the principal and enforcement claims.

(15) In consequence, DK's application for permission to amend the claim form and grounds in the judicial review claim against NCC has no substance or prospects of success and is dismissed as being applied for hopelessly out of time and as having no prospects of success.

(16) The application to amend is dismissed as being totally without merit.

5. Part V – Renewed Permission Applications – General Introduction

(1) In the light of the unusually prolonged and unusual procedural history of each renewed application for permission, each renewed application has been reconsidered in reliance on all submissions and other documents served by DK on the court since 2008. Parts VI, VII and VIII contain fresh and final decisions in each of the three renewed applications for permission to apply for judicial review.

6. Part VI - CO/3391/2008 – First Judicial Review Application against IPCC

(1) The application for judicial review related to the IPCC's dismissal of DK's appeal against NP's dismissal of 14 specific complaints against the officer in charge of NP's investigations of the alleged criminality of the district judge. Each complaint was alleged to be a separate specific instance of unjustified, unlawful or unreasonable behaviour in relation to the investigations.

(2) Each of the 14 specific decisions was considered by the IPCC along with DK's objections to each decision.

(3) The findings were in 3 parts. 2 of the complaints were found to have been about matters that had been referred to the CPS and had received due scrutiny by that body. The renewal of these two matters by way of complaints against DIB was, therefore, unjustified and an abuse of the complaints procedure. Those two complaints were therefore rightly dismissed by NP and were not therefore considered further by the IPCC.

(4) 5 of the complaints and part of a sixth complaint were found by NP to have been direction and control matters since they pertained to the methods employed within the investigation which followed established procedures. These complaints were therefore correctly held by NP to be outside the complaints procedure and were not considered further by the IPCC.

(5) The remaining 6 complaints and the part complaint left over from this sifting exercise were each considered in detail and each finding of "unsubstantiated" was upheld by the IPCC dismissal decision.

(6) DK had put forward a proposed amendment to the claim form and grounds over 2 years after filing the claim and without seeking by way of an application permission to amend the claim. The proposed amendment was not considered since permission had not and would not be given for this permission and, if applied for now, would be refused. The reasons why the proposed amendment would never have been permitted are set out.

(7) The original filing of the claim was on 4 April 2008 and it related to a decision taken on 20 December 2007. CPR 54.4 requires the claim to be filed promptly and, at the latest, within 3 months of the decision complained of being made. Given that the claim as originally pleaded is based on the terms of DK's original response to NP's decision which he sent to NP on 10 November 2007, there was no justification in his delaying filing the claim beyond a 4-week period after receipt of the IPCC decision. The claim should therefore have been filed by about 20 January 2008 but was in fact filed some 2½ months later. Permission to extend the time within which the claim should have been filed until 4 April 2008 is refused. No good reason for the delay had ever been put forward.

(8) The renewed application should be dismissed on the grounds that it was filed out of time, that there were no grounds for extending time and because the complaint had no prospects of succeeding. Furthermore, the proposed amended grounds cannot not be relied on or taken into account. None of the IPCC's 14 appeal decisions upholding each of the 14 NP decisions rejecting DK's 14 specific complaints of misconduct by the investigating officer were unlawful, irrational or Wednesbury unreasonable and were instead clearly correct and fully within the IPCC's jurisdiction and decision-making powers. The judicial review claim in relation to an allegation of tape tampering with a tape used to record proceedings on 26 August 2006 has been withdrawn and may not be resurrected.

(9) The renewed permission application is totally without merit.

7. Part VII - CO/4651/2008 – Second Judicial Review Application against IPCC

(1) Permission is refused both on delay and because the claim has no reasonable prospects of success.

8. Part VIII - CO/11166/2008 – Judicial Review Application against Newcastle Combined Court

(1) This judicial review claim is considered in the form in which it was originally set out in 2008 since I have already considered and refused DK's application to amend the claim. In its original form, the claim seeks judicial review of the decision of Judge Walton dated 13 June 2008 sitting in NCC to refuse DK permission to appeal a decision of District Judge Loomba dated 7 April 2008 refusing to review the final costs assessment of District Judge Park dated 21 November 2007. The claim was filed in the Administrative Court on 7 November 2008 at least 7 weeks out of time. Stadlen J refused permission to apply for judicial review in a decision dated 24 March 2009.

(2) The claim was filed nearly 2 months out of time with no application to extend time and no explanation for the delay. Permission to extend time is refused.

(3) An application for judicial review must be started by serving a claim form on the Administrative Court as soon as reasonably possible after the decision being challenged has occurred and no later than three months thereafter. It is only in very rare cases that it is permissible to delay starting a case on the grounds that further information is needed or is being sought. There is no rule that requires a person to delay starting judicial review proceedings concerned with a lower court decision until any ancillary proceedings, such as costs applications, have been disposed of.

(4) A court within the county court structure of courts should not delay or adjourn a hearing, trial or decision on account of threatened or actual judicial review proceedings even if such proceedings have the potential for unscrambling that decision or any decision on which it is dependent.

(5) Judicial review is only potentially available if a county court or tribunal decision that is sought to be challenged:

(a) Is no longer open to an appeal or review;

(b) Has not been but can no longer be the subject of proper judicial scrutiny;

(c) Is one which was clearly reached in excess of jurisdiction or has resulted from gross procedural error or a fundamental and exceptional miscarriage of justice; and

(d) Is additionally a case which it is in the public interest to review by way of judicial review.

(6) The only decision relied on which met the first threshold condition of being one which had shut out a first appeal within that court's appeal structure was, possibly, Judge Walton's decision of 13 June 2008 refusing permission to appeal District Judge Loomba's decision dated 7 April 2008 refusing to review the final costs assessment of District Judge Park dated 21 November 2007. The decisions of Judge Walton and District Judge Loomba were only barely susceptible to judicial review since there could have been, but had not been, an application to appeal District Judge Park's original costs assessment decision. The original costs decision dated 21 November 2007 could have been, but was not, made the subject of an application for permission to appeal. Had DK wished to challenge the costs decision, he should have made that application and not proceeded by way of an application for a review of that decision.

(7) Instead, DK sought to have that decision reviewed and both District Judge Loomba and Judge Walton correctly considered that that was the wrong procedure and also regarded any form of appeal from or review of that decision as being hopeless and misconceived.

(8) These two decisions are not ones that had been reached in excess of jurisdiction or had resulted from gross procedural error or a fundamental and exceptional miscarriage of justice and neither were decisions which additionally were decisions which it was in the public interest to review by way of judicial review.

(9) For these reasons and for the reasons set out in paragraphs 151 – 176 in Part IV above, the claim has no prospect of success. Permission is refused on both grounds.

(10) The application is totally without merit.

9. Part IX – Civil Restraint Order

(1) DK should be made the subject of a general civil restraint order for the maximum period of two years and the period of the effect of that order should be 20 August 2013 until 19 August 2015 inclusive.


 


10. Part X – Overall Summary and Orders and Further Steps

(1) The orders made in consequence of this judgment are set out and the few remaining further steps that need to be taken are identified.

Part II - General Introduction

10. Three related judgments. This judgment, Kelway v Independent Police Complaints Commission and others ([2013] EWHC 2574 (Admin), was handed down on 20 August 2013. It is closely related to two further judgments, Kelway v Upper Tribunal (2013] EWHC 2575 (Admin) handed down with this judgment on 20 August 2013 and Kelway v Independent Police Complaints Commission and others ([2013] EWHC [ ] (Admin), an extempore judgment delivered on 24 May 2013. The trilogy of judgments should be read together. They deal with four judicial review claims brought by a tenacious litigant in person, DK that arose out of a county court action started by one of his companies on 15 August 1998 which was only finally brought to an end on 13 June 2008.
11. This judgment ("the permissions judgment") deals with a recusal application dated 26 June 2013, an amendment application and the renewed permission applications in DK's first three judicial review claims and the imposition of a general civil restraint order. The second judgment ("the Cart judgment") deals with his permission application in his fourth judicial review and with a disclosure application issued in the first judicial review claim. The third judgment ("the adjournment judgment") gives my reasons for continuing with the applications despite DK's non-appearance at the hearing on 24 May 2013 of all his outstanding applications. It therefore deals with my decision not to adjourn the hearing, to reserve judgment in each of the applications save the recusal application that had not then been issued, to determine them on the basis of the large number of submissions and documents that DK had lodged with the court throughout the five-year history of the various applications for permission to apply for judicial review and then to hand down the resulting judgments.
12. Background. DK's litigation has had a remarkable 15-year history. It started as a relatively modest county court commercial claim brought by DK's company to recover damages from a company called Aptech Ltd for its alleged failure to maintain the company's automatic telephone system. The claim was struck out at an early stage and DK, having taken an assignment of the cause of action from the liquidator of the claimant company, spent the next six years unsuccessfully attempting to reinstate it and a further seven years in unsuccessfully pursuing satellite complaints arising out of the original proceedings. He is still pursuing the litigation which has become a one-man struggle against DK's perceived injustices that he considers that he has suffered from those involved in the litigation. These many perpetrators include several members of the judiciary and the tribunal judiciary, many court and tribunal staff members, the legal representatives of the defendant in the county court claim, several police officers in Northumbria Police ("NP"), individual members of the Independent Police Complaints Commission ("IPCC") and the Information Commissioner ("IC"). Indeed, the litigation appears to have become a personal crusade that has taken over the original claim and to have become a way of life for DG.
13. DK's four judicial review claims relate to, and are a consequence of, that county court action. His company started it on 12 August 1998 and was struck out by an order dated 25 May 2000 after the company went into liquidation. DK became the claimant by assignment on 24 April 2002. DK's involvement in the claim from that moment until the action finally came to an end on 13 June 2008 was entirely devoted to repeated but forlorn attempts to reinstate the claim and to avoid having to pay the defendant's costs. Those attempts have spawned several related complaints and disputes.
14. The satellite proceedings started with protracted police investigations by Northumbria Police ("NP") into DK's report of the alleged criminal tampering with a court tape by the district judge on which was recorded a costs assessment hearing that that judge had conducted. These investigations concluded that there was no evidence of any criminal conduct. DK then made allegations of misconduct against the officer in charge of those investigations which were rejected by NP. DK then sought unsuccessfully to appeal that rejection to the IPCC. Meanwhile, he had applied unsuccessfully to NP under both the Freedom of Information Act 2000 ("FOIA") and the Data Protection Act 1998 ("DPA") for disclosure of the district judge's statement that he had provided to NP in the course of its investigations. He then engaged in prolonged, complex and unsuccessful appeal and review proceedings under both the FOIA and the DPA. Finally, DK has started four judicial review claims that challenge and seek judicial reviews of some of the critical county court, IPCC and IT decisions in the litigation.
15. In summary, therefore, there have been four distinct stages in the fifteen-year litigation. These are:

(1) The county court stage. This stage involved a remarkably large number of court hearings in the Gateshead County Court, the Newcastle Combined Court ("NCC"), the Carlisle County Court, the High Court sitting in Preston and the Court of Appeal between 12 August 1998 and 13 June 2008.

(2) The NP stage. This stage involved NP's investigations into DK's complaint of alleged criminal conduct by a district judge sitting in NCC who held a costs assessment hearing in the litigation and alleged police misconduct in carrying out those investigations. This stage started with DK's original report of his suspicions in October 2004. That report initiated a series of four NP investigations that ended on 7 November 2007 and the IPCC appeals process that took place between December 2006 and March 2008.

(3) The FOIA and DPA stage. This stage involved DK's request for copies documents from NP's investigation files under the FOIA and DPA and his subsequent recourse to the FIOA and DPA review and appeal processes between 23 November 2006 and 1 October 2012.

(4) The judicial review stage. This stage has involved four separate judicial review claims brought by DK arising out of the three earlier stages. The first of these claims was filed on 4 April 2008 and this stage has continued until the handing down of this judgment on 20 August 2013^[1].

16. The four judicial review claims and eight applications are as follows:

(1) CO/3391/2008. This claim was filed on 4 April 2008 and the initial application for permission to apply for judicial review was refused by Dobbs J in a decision dated 13 August 2008. The claim was brought against the IPCC with NP as an interested party. In it, DK challenged the IPCC's decision of 20 December 2007 to dismiss his complaint that NP had dismissed his earlier complaints about the officer in charge of NP's investigations of the district judge.

(2) There are two applications made in this claim:

(i) A renewed application dated 19 August 2008 applying for permission to apply for judicial review; and

(ii) An application dated 24 April 2013 applying for specific disclosure of the statement that the district judge provided to the investigating officer.

The specific disclosure application has been decided in the Cart judgment.

(3) CO/4651/2008. This claim was filed on 15 May 2008 and the initial application for permission to apply for judicial review was refused by Dobbs J in a decision dated 13 August 2008. The claim was also brought against the IPCC with NP as an interested party. In it, DK challenged two of IPCC's decisions dated 7 December 2007 and 31 March 2008. In the first, the IPCC dismissed DK's complaint that NP had dismissed his earlier complaint about NP's delay in answering his FOIA request on the grounds that the complaint to NP related to matters of "direction and control" and was therefore outside the statutory police complaints procedure. In the second, the IPCC had granted NP a dispensation from investigating a second complaint made by DK about NP's FOIA delay on the grounds that it was a duplication of his first complaint that had been made in an attempt to circumvent the dismissal of his first complaint about delay.

(4) There is one application in this claim:

(i) A renewed application dated 23 August 2008 applying for permission to apply for judicial review.

(5) CO/11166/2008. This claim was filed on 7 November 2008 and the initial application for permission to apply for judicial review was refused by Stadlen J in a decision dated 24 March 2009. The claim was brought against NCC with Canon as an interested party. In it, DK challenged a decision of a district judge in Carlisle County Court dated 21 November 2007 in which a district judge assessed DK's costs liability to the defendant Canon that of NCC dated 13 June 2008 in which a circuit judge in NCC refused DK permission to appeal various orders of the district judges including an order dated 7 April 2008 refusing to set aside the costs order dated 21 November 2007 and a second order also dated 7 April 2008 making a final charging order to enforce the costs order.

(6) There are two applications made in this claim:

(i) An application dated 18 February 2013 seeking permission substantially to amend the claim so as add applications to:

(a) Set aside an order of a district judge dated 19 November 2002 refusing to reinstate DK's claim against Canon which had been struck out for non-compliance with the CPR by an order dated 25 May 2000;

(b) Set aside the 10 subsequent orders of the court which cumulatively had led to:

(i) DK's claim against Canon remaining struck out;

(ii) DK being held liable to pay Canon's assessed costs;

(iii) The sum DK was liable to pay Canon being assessed;

(iv) The assessed sum being charged against DK's house by way of a final charging order.

(c) Order the county court to undertake a re-assessment of DK's costs liability to Canon; and

(d) Provide relief for breaches of article 6 of the European Convention on Human Rights and section 6 of the Human Rights Act 1998; and

(ii) A renewed application dated 3 April 2009 applying for permission to apply for judicial review.

(7) Application dated 26 June 2013. This application was dated 26 June 2013 and was issued in all four judicial review claims. It seeks orders that:

(i) I recuse myself forthwith from the proceedings and take no further part in them: and

(ii) 7 further orders whose effect would be to impose a stay on all further proceedings in each of the four claims.

(8) CO/2904/2013. This Cart claim was filed on 11 March 2013. The claim was brought against the Upper Tribunal (Administrative Appeals Chamber) ("UT") with the Information Commissioner ("IC") and NP as interested parties. The subject-matter of the claim was the decision of the UT dated 4 September 2012 refusing DK's application for permission to appeal substantive and costs decisions of the First-tier Tribunal (Information Rights) ("FTT") and a subsequent decision of the UT dated 1 October 2012 refusing DK's application to set aside its earlier decision.

(9) There is one application that is made in this claim:

(i) An application arising from the filing of the claim form on 11 March 2013 applying for permission to apply for judicial review.

(10) Application dated 24 April 2013. This application was dated 24 April 2013 and was issued in CO/3391/2008. It applied for specific disclosure of three statements including that of the district judge which were made to the officer investigating DK's criminal complaint about the district judge. This application has been decided as part of the Cart judgment.

(11) Extempore judgment dated 24 May 2013. This extempore judgment was delivered on 24 May 2013 when all outstanding applications in all four judicial reviews were called on for a final hearing and in the absence of DK. He had notified the court on 23 May 2013 that he would not be attending the hearing. He stated that he was not applying for an adjournment but he invited the court to consider adjourning the hearing of the applications. In the judgment, I considered whether I should adjourn the applications and then set out my reasons for not adjourning any of them and for determining them on the basis of all the submissions and documents previously filed.

(12) General Civil Restraint Order. Prior to the hearing, I had given DK notice that I would consider whether to impose a general civil restraint order if I dismissed his applications for permission. I have decided to impose this order for the reasons set out in Part IX of this judgment.

(13) Summary. In summary, the three judgments deal with recusal and stay applications and an informal adjournment application in all four judicial review claims, a disclosure application in the first IPCC claim, an application to amend the NCC claim, four renewed applications for permission to apply for judicial review and the imposition of a general civil restraint order. This judgment deals with 6 of these applications and the imposition of a general civil restraint order. The Cart judgment deals with the disclosure and Cart permission applications and the extempore judgment with the informal adjournment application.

17. The evolution of the proposed amendment. DK applied for an adjournment of his renewed applications for permission when these were first listed for a hearing on 10 March 2010. An adjournment was granted because the court had misinformed DK about the purpose of the hearing and to await the disclosure of NP's investigation file given that the hearing had previously been adjourned on more than one occasion on this ground. I discussed DK's difficulties and, at his request, agreed to send him draft decisions to enable him to decide whether to accept these without the need for a further hearing. The draft decisions were then served on DK.
18. DK did not accept the draft decisions and applied for the renewed oral hearing to be relisted to enable him to apply to amend the claim against NCC and to apply for permission on the basis of that amended claim. The proposed amendments were not served on the court until 9 January 2011 and, even when they were served, were not accompanied by an application seeking permission to amend. The effect of the proposed amendments was to substantially recast the claim against NCC in the very wide terms that are summarised in paragraph 6(6)(i) above.
19. The adjourned hearing took place in March 2011. At the hearing, DK applied for a further adjournment of his amendment application on the grounds that his outstanding appeal relating to the disclosure of the district judge's statement had still not been heard by the UT. He informed me that he anticipated that it would be heard in the near future. I declined to adjourn the applications but stated that I would reserve judgment and hand down my reserved judgment later. I gave DK permission to serve any further written submissions or documents he wished to rely on so long as these were served promptly. I did not receive any further documents and prepared a draft judgment dismissing the application to amend and the renewed permission applications. On receiving the draft judgment, DK applied for permission to make detailed submissions about the many objections he had about it and for an order that I should not finalise the draft judgment and hand it down until after his disclosure appeal had been heard by the UT. I granted his applications with the effect that the draft judgment was withdrawn.
20. DK's detailed submissions suggested a series of substantial amendments to the draft judgment. The UT only finally dismissed DK's application for permission to appeal to the UT on 1 October 2012. I directed that DK should issue a formal application for permission to amend his relevant judicial review grounds and gave all other necessary directions for the hearing of all outstanding applications in the judicial reviews. As a result, DK issued his application to amend dated 18 February 2013. The proposed amendment is in substantially the same terms as the version served without a formal application on 9 January 2011. It was listed for hearing on 24May 2013. DK did not attend and, for the reasons set out in my extempore judgment, I did not adjourn the hearing of the amendment application or the other applications listed for hearing but reserved judgment. I am now determining all of them on the basis of all the documentation that DK has served throughout the history of his judicial reviews.
21. DK's disruptive conduct. It is now clear that DK decided sometime in March 2013 that he would cease participating in his judicial review proceedings and would instead attempt to disrupt them. He did this by bombarding the staff of the Administrative Court with an unprecedented number of emails and telephone calls. Most of these raised questions about insignificant procedural points and innumerable complaints. I have been informed that, in the period from March to June 2013, he sent the court in excess of 400 emails and made innumerable telephone calls. When it became clear that this tactic would not lead to the amendment hearing being adjourned, he notified the court that he would not attend the hearing on 24 May 2013. This led to my deciding that the applications would be decided on paper without a further hearing and to hand down reserved judgments when they were ready. This, in turn, led to DK's recent application seeking my recusal and for orders whose effect would be to stay the judicial review claims pending the determination of his recusal application and any subsequent appeals he was minded to bring.
22. Part IV of the judgment concerned with the amendment application. I have carefully considered the detailed submissions and accompanying documents submitted by DK in support of his application for me to vary the terms of my draft judgment that had been received by DK in January 2012. I do not consider that any of DK's submissions requires the amendment of any part of my draft judgment refusing DK permission to amend and I have re-issued paragraphs 1 – 180 of the draft judgment as sections A and B of Part IV of this judgment and I have added a redrafted Conclusion in section C of Part IV which summarises my reasons for dismissing the amendment application.

Part III – Application Notice Dated 26 June 2013 – Recusal and Related Applications

A. Introduction

23. I have explained in Part I that sometime in March 2013, DK lost interest in the pursuit of his four judicial review claims and ceased working on them. Instead, he embarked on a campaign of disrupting the Administrative Court's consideration of the outstanding applications by emailing and telephoning the court on an almost daily basis with a series of trivial procedural queries covering almost every aspect of those claims.
24. This campaign of disruptive emailing and telephoning the Administrative Court was clearly aimed at disrupting the hearing listed for 24 May 2013 of all outstanding applications and of procuring its adjournment. DK has shown by this behaviour that since March 2013, he has had no intention of appearing at, or preparing for, the six applications that were to be heard. It was therefore no surprise when he contacted the court on 23 May 2013 with the information that he was not going to attend the hearing the following day. This was the first occasion on which he had informed the court that he was not proposing to attend. He did not at that stage apply for an adjournment or mention anything about a possible recusal application. The hearing went ahead and I delivered a lengthy extempore judgment explaining why I was proceeding in his absence. I set out in that judgment more detail about the nature and extent of DK's disruptive behaviour. Having failed to secure an adjournment of the hearing, DK issued a combined recusal, setting aside and adjournment application dated 26 June 2013 seeking my recusal, the setting aside of my earlier procedural orders and an adjournment of the consideration of all outstanding applications . These applications were clearly aimed at causing further delay and disruption. DK attended the hearing of this application on 18 July 2013 by video link to the Administrative Court sitting in London and I heard his submissions at that hearing. DK was, as on previous occasions, attending the hearing via a video link from the Newcastle Family court video centre. This Part III of this judgment is the reserved judgment that arises from that hearing.

B. The Recusal Application

25. Neither the application notice nor the supporting witness statement identify the grounds upon which my recusal is sought save in the most general terms. The covering witness statement deals with the 8 other applications that are included in the application notice. The recusal application that is numbered 9 in the list of applications and is listed at the end of that list of applications and is in these terms:

"The Claimant [DK] is of the view that Judge Thornton has proved to be mendacious and has lost his sense of objectivity in these proceedings. He has adopted a bizarre and unprofessional case management style. He has also intervened unreasonably and in a self-serving manner in complaints that the Claimant has made about the way that the proceedings have been administered. The Claimant therefore considers that it is impossible for the judge to whom matters in these proceedings have been reserved to continue to handle the litigation."

26. The grounds on which DK seeks my recusal can therefore be summarised under four heads:

(1) Mendacity;

(2) Bizarre and unprofessional case management style;

(3) Unreasonable and self-serving interventions in relation to DK's complaints about the way that the proceedings have been administered; and

(4) Loss of a judicial sense of objectivity.

27. I will deal with the recusal application under these four head after I have considered and decided the 8 other matters listed for consideration in the application notice since those are all relevant to DK's complaints about my alleged bias and loss of judicial objectivity.

C. Other Orders Sought by the Application

(1) Application (1): The handing down of judgment in the outstanding applications in which judgment has been reserved should be adjourned from 18 July 2013

28. I have adjourned the date previously fixed for the handing down of judgments in this case. I did so when the court received a copy of DK's recusal application. I am handing down those judgments with this ruling. It seemed appropriate that I should first decide the recusal application and, in the light of that decision, decide whether I should hand down any of the reserved judgments that I was working on and, if so, decide when I should hand them down.

(2) Application (2): The extempore judgment and related orders dated 24 May, 10 June and 18 June 2013 should be set aside under CPR 39.3(3)

29. These orders may be summarised as follows:

(1) On 24 May 2013, I ruled that the hearing fixed for that day would proceed and I directed that the listed applications would be decided by reference to the entirety of the extensive documentation that DK had supplied to the court since 2008 that concerned them. I delivered a lengthy extempore judgment explaining why it was in the interests of justice for me not to adjourn the hearing, to reserve judgment, to decide the applications and hand down reserved judgments. The order dated 24 May 2013 ruled that the hearing on that date would proceed and gave directions for the judgments relating to the applications listed for hearing would be reserved and gave directions for their handing down.

(2) The order dated 10 June 2013 that gave further directions for the handing down.

(3) The order dated 18 June 2013 that gave further directions for the handing down and made an order confirming earlier orders that no judgment or draft judgment had been handed down on 25 October 2011.

DK now seeks in this application an order setting aside that extempore judgment and, separately, seeks orders setting aside these three orders.

30. DK gives no reasons why these three orders should be set aside. I can summarily dispose of the application to set aside the judgment delivered on 24 May 2013 which I dismiss since I have no jurisdiction to set aside that judgment now that it has been delivered.
31. The application in relation to these orders is, in reality, an application made under CPR 39.3(1) to set aside the orders on the grounds of DK's non-attendance at the hearing on 24 May 2013 with the result that he was not represented at that hearing since he is a litigant in person. However, no adequate grounds are put forward for my taking that step and it is inappropriate for me to set aside these orders for five related and cumulative reasons.
32. DK's non-attendance at the hearing on 24 May 2013. DK has not given a good reason for his non-attendance at the hearing that was held on 24 May 2013. The only reason that he has given to explain and justify his non-attendance, which he gave in his letter to the court dated 23 May 2013 and in the application notice, was that he was awaiting a ruling from the Court of Appeal of an unspecified nature. I have learnt from enquiries made by my clerk of the Court of Appeal that there is no outstanding ruling concerned with any application or appeal of DK in any of the four judicial reviews that he is pursuing nor is there any evidence of a live application or appeal that is still outstanding.
33. DK did lodge a notice of appeal with the Court of Appeal on 10 November 2011 against a judgment that, for reasons that I have previously provided, was not handed down in either a final or draft form on that date. However, DK's notice of appeal was not accompanied an application seeking permission to appeal or by any grounds of appeal and he has not taken any step subsequently to pursue the appeal.
34. Interference with the complaints process. DK has suggested that I have interfered with the consideration of his complaints about the NCC and Administrative Court by the Courts Service Complaints Unit ("CSU") and the Parliamentary Ombudsman and have lied to him about my involvement in that process. He has not provided any details of the complaints he is referring to or of my interference in that process save that I have written two letters to the CSU instructing it not to proceed with his complaints. DK informed me at the hearing of the recusal application that he is referring to two emailed letters that I sent to the CSU dated 22 October 2012 and 8 February 2013. It can be seen from these two letters that I set out below that DK's allegation is unfounded.
35. Inability to represent himself. DK contends that he could not, in fairness to himself, attend the e hearing on 24 May 2013 whilst he was unrepresented and was acting as a litigant in person. However, DK has represented himself throughout the litigation at all hearings in every court and tribunal where hearings have taken place over the last 15 years. There have been at least 70 such hearings all told. Throughout, DK has demonstrated a remarkable ability to represent himself adequately as I have myself observed in the approximately six hearings that I have held. It is apparent from a number of other judgments that I have seen, which have been delivered over the years in the course of this litigation by a number of other judges, that several other judges have commented favourably on DK's ability to conduct his own case at court hearings. DK has therefore demonstrated that he does not require legal representation to present his case and, in any event, he does not appear to have taken any steps before or since 24 May 2013 to obtain legal representation.
36. Delay in making the application. DK did not act promptly as required by CPR 39.3. He issued his application notice on 26 June 2013 having known that the hearing was to take place for many months before 24 May 2013 and having known since 24 May 2013 that it had taken place.
37. No prospects of success. DK has no prospects of succeeding in any of his applications even if the orders are set aside, fresh dates are given for their hearing by me or by another judge and they are then reheard.
38. Conclusion. There is no substance in any of the grounds put forward for the setting aside of these three orders. It is clear that DK is only applying to set aside these orders in a last-ditch attempt to further delay the handing down of the outstanding judgments. In seeking that further delay, he has acted in flagrant and repeated breach of the CPRs and of his duty to comply with the overriding objective and to co-operate with the court. These breaches include his repeated and unjustified avalanche of emails and telephone calls to the Administrative Court, his refusal to prepare for the hearing on 24 May 2013, his refusal without justification to attend that hearing, his deliberately late notification of his non-attendance coupled with his initial refusal to apply for an adjournment of the hearing on 24 May 2013 and his delay in seeking a recusal, a setting aside of procedural orders, a stay and a further adjournment until he had exhausted all his other tactical options for engineering further delay and disruption.

(3) Application (3): The orders dated 22 March 2013 and 25 April 2013 should be struck out

39. The orders dated 22 March and 25 April 2013 gave procedural directions for the hearing of the applications that were listed for hearing on 25 May 2013. The directions were not complied with and DK has never explained why they were not complied with. The reason for his non-compliance is, however, his wish to delay and disrupt the hearing of his outstanding applications in his four judicial review claims.
40. The basis for striking them out is said to be that they relate to a hearing which should never have taken place because the hearing was an abuse of process. However, no application has previously been made to set these orders aside, it is now too late to apply to set them aside and, in any event the hearing on 24 May 2013 was not an abuse of process.

(4) Application (4): Relief is sought in relation to the orders dated 25 October 2011 and 18 June 2013

41. The order dated 18 June 2013 is directly related to and concerns the order dated 25 October 2011. The relief that is sought is to the effect that:

(1) Paragraphs 1 - 12 of the order dated 18 June 2013 should be set aside;

(2) The judgment handed down on 25 October 2011 should be released by the court; and

(3) The court should confirm that the order dated 25 October 2011 was a valid order.

42. The basis of this application is DK's oft-repeated assertion that a perfected judgment was handed down in the first three of his judicial reviews on 25 October 2011 but the court has never published or provided copies of the judgment and has persistently refused his request to be provided with a copy of it. He has referred to the official transcript of the post-judgment discussion which appears to show that a judgment was handed down.
43. However, as has been explained on several recent occasions and also at some length in my extempore judgment delivered on 25 May 2013, neither a perfected nor a draft judgment was handed down on 25 October 2011. The unfortunate events on 25 October 2011 that led to the appearance of a judgment being handed down are explained at length in the extempore judgment which should be referred to in relation to this matter. It has been a matter of deep regret to me and to the Administrative Court that an order was issued that appeared to dismiss the applications by reference to a judgment handed down on 25 October 2011 when no judgment was in fact handed down. However, my earlier judgment explains why no judgment was in fact handed down and why the order was either not issued or issued in a defective form by mistake. DK has received an apology from me for what occurred and I repeat again that the Administrative Court and I apologise to him that he received an order which appears to show that his applications were dismissed when no order was made and no judgment explaining why that order was made was handed down.
44. It is also the case that DK has never suffered any prejudice by that non-event or from the mistakes that were made that gave the appearance that an order and handing down of judgment had occurred. DK first learnt about the possible dismissal of his applications in early November 2011 when he received a copy of the order - albeit that that copy was defective in both form and content. He immediately issued a notice of appeal seeking to have the order set aside. DK did not inform the Administrative Court that he had issued that notice of appeal but he did write to the court making a lengthy and justifiable complaint that the order had been made and the judgment had been handed down without his knowledge.
45. From the moment that the Administrative Court received that letter, it has acted with DK's knowledge and approval on the basis that the order had been set aside. Since he had not received any judgment or draft judgment - because no judgment or draft judgment was issued or sent out at that time - the Administrative Court did not formally notify DK that the order was invalid. As has since been explained to DK, that was also unsatisfactory and it occurred because the Administrative Court had not retained a copy of the order on the court file in the form it was issued to DK, it only retained a copy of the order in draft form and it was assumed that the order had also been sent out in that form.
46. For the next 15 months, the Court acted with DK's knowledge and approval on a basis that is only consistent with no judgment having been handed down on 25 October 2011 and any order made on that date having been set aside. DK has recently asserted that he never understood that the order had been set aside and had always assumed that it had been made and has remained a valid and effective order. Whether or not DK understood that the order had been set aside is now immaterial. He has acted in a way that is only consistent with it never having been made or, if made, having been set aside and in a way that has always demonstrated his belief that it had been set aside.
47. He only first raised the possibility that the order was still in place and that a judgment had been handed down on 25 October 2011 when he embarked on his campaign of disruption in March 2013. DK is now seeking to go back on the procedural steps that he has taken since November 2011, all of which are inconsistent with the order which, if it was not set aside, left dismissed his renewed applications for permission to apply for judicial review in the first three judicial review claims. These steps include his applications for permission to amend, for disclosure and for permission to apply for judicial review being relisted for a hearing on 24 May 2013, none of which could have been issued or listed for a hearing if the judicial review claims had already been dismissed.
48. It is, therefore, now too late for DK to contend that the order still stands as a valid order that had never been set aside. Moreover, I can only repeat that no judgment or draft judgment was handed down on 25 October 2011. I should add that the judgment that had been prepared for handing down in draft form at that time has now, in any event, been handed down as Part IV of this judgment and, in an amended form, in parts VI, VII and VIII of this judgment.

D. Recusal Application

49. I now turn to the recusal application. In order to obtain my recusal, DK must establish that I have been biased in some relevant way or have conducted the judicial review proceedings with the appearance of bias. The most serious of his allegations of bias or perceived bias is that I have interfered with his attempts to make complaints to the CSU and to the Parliamentary Ombudsman and have then lied to him by denying that I had done so after he had suggested to me in a letter that he wrote to me in March 2013 that I had interfered with the consideration of his complaints. In support of his allegation of interference and mendacity, he has relied on the fact that I had sent two emails which he has not seen but which he has been informed by the CSU that I sent to the CSU and which he has assumed provide clear evidence of my interference with his complaints and of my subsequent mendacity.
50. I have obtained copies of the two emails that he has referred to from the Administrative Court staff since I had not retained copies in my laptop. I have also obtained copies of the emails that these emails were responding to. The first of my emails is dated 22 October 2012 and I sent it to two staff members of the CSU. I was responding to an email that DK had sent to those representatives of the CSU that he had also copied to me. He did not then, and has not subsequently, informed me why he sent me an unsolicited a copy of his email without any explanation.
51. DK's email to the CSU read as follows:

Sent: 22 October 2012

To: Haque, Anisul; Davies, Steve (HMCS-CSU, Cl Hse)
Cc: Jon Kelway; Thornton, HHJ Anthony
Subject: RE: Complaint: case CO/3349/2010 - Administrative Court

Dear Mr Davies

I write further to your letter dated 12 October 2012 confirming that you will respond further when you have received information from the Administrative Court.

This morning I received a letter dated 18 October 2012 from the Case Progression Office Manager of the Administrative Court, Mr Stuart Jarman. This reiterated what Mr Pycock^[2] has already told me in that there is nothing further that the Administrative Court can comment on.  Furthermore, he stated that all the papers have been transferred from the Administrative Court office to the Upper Tribunal.

I am unsure whether this response direct to me is what you expected to happen regarding my complaint. If so, I find the situation wholly unacceptable. If that is not the case then I would be obliged for clarification as to the correct procedures to be adopted by HMCTS.

In an attempt to clarify matters myself I telephoned Mr Jarman today and asked him why he had sent a letter which merely reiterated what Mr Pycock had already stated and took matters no further. He explained that his letter was not written as a result of your enquiries, as far as he was aware, but was responding to a request of Mr Pycock to advise me of the position adopted by the Administrative Court. It appears to me that the letter was written as simply an effete attempt to cover the Administrative Court against their failure to review my complaint in the manner set down in the Court's guidelines.

I should add that it took six telephone calls to the RCJ to get through to Mr Jarman.  Previous calls were blocked in the first instance and then passed through to lines which were not answered and eventually became disconnected.

I am afraid the service I have received from the Administrative Court over the last few years has been utterly deplorable.

I look forward to receiving confirmation from you that my complaint is being properly handled by HMCTS.

With best regards

Dr Peter Kelway

52. My email to the CSU read as follows:

From: Thornton, HHJ Anthony

Sent: 22 October 2012

To: Haque, Anisul; Davies, Steve (HMCS-CSU, Cl. House)

Subject: FW: Complaint: case CO/3349/2010

Dear Mr Haque and Mr Davies

DK has sent me this copy of his email which I am forwarding to you both (I appreciate that you will have received it in any event).

I am the Administrative Court judge dealing with his long outstanding application for permission to judicially review the entirety of his many hearings in the underlying claims in the Newcastle Combined Court. This permission hearing is still awaiting resolution because of [DK]'s long history of attempting to appeal an Information Commissioner request which he continues to contend needs to be resolved before the judicial review application has been completed..

My reason for sending this email is to inform you that he has many and detailed complaints about his treatment at the hands of many courts including the Administrative Court, some of which remain outstanding and that you may think it prudent to inform him that you cannot investigate his complaint further until all his litigation in the Newcastle Combined Court Centre, the Administrative Court and the Upper Tribunal has been completed at which point, if he has outstanding complaints about any aspect of his litigation in any court or Tribunal, these can be submitted in one composite complaint. Any piecemeal consideration of any complaint before the finality of his litigation may jeopardise what remains of that litigation.

I have not sent a copy of this email to DK.

Judge Anthony Thornton QC

Permanent Section 9 judge based in the RCJ

53. DK's email had referred to a complaint about delay by the Administrative Court in transferring his appeal from the IT to the UT. I was not previously aware that he had raised a complaint with the CSU about this delay that he had previously alleged had been caused by judicial officers and staff members of the Administrative Court. I was however aware that he would relying on this delay in a forthcoming judicial review challenge to the UT's decision dated 3 September 2012 refusing him permission to appeal the IT's appeal that he had already indicated that he would be making. DK's email showed that there was a possible overlap between matters that DK was relying on in his forthcoming judicial review and the complaint he was raising with the CSU. I thought that it was desirable to draw that possible overlap to the attention of the CSU once I had been alerted to it by DK's email since claims dealt with by a judge in court should dealt with wholly separately from and not be mixed up with identical complaints to the CSU about the service provided by the Courts Service in relation to those claims.
54. 26. The second exchange occurred on 8 February 2013 and was as follows:

From: Davies, Steve (HMCS-CSU, Cl. Hse) 
Sent: 08 February 2013 12:44
To: Thornton, HHJ Anthony
Subject: **RESTRICTED-PROTECT**

Dear Judge Thornton

Following your email below^[3], I am hoping you would kindly inform me of the present position in relation to [DK]'s application. This team agreed with the approach of waiting until the conclusion of the litigation before reviewing his complaint.

The reason I ask for the present position is [DK] has approached the Parliamentary Ombudsman (PHSO) via his MP to complain that HMCTS has taken this approach it has with his complaint. The PHSO have contacted the Head of our team to question why we have decided to do this.

I have to say we are in a difficult position because we are not entirely clear why a complaint investigation would jeopardise the litigation but fully respect your suggestion below. I should explain that the Ombudsman's office spoke with the Head of this team yesterday, and he mentioned that a judge had suggested it would be prudent to wait until the conclusion of the litigation and that we have decided this would be appropriate. However, I have just seen an email from the PHSO who seem to be under the impression that a judge intervened and told us not to investigate and asked us to clarify why the judge made this decision.

I propose to clarify to the PHSO that a judge did not tell us not to investigate but suggested it would be prudent not to do so as it may jeopardise what remains of litigation and we decided this was appropriate. However, before I do so I wanted to check you were happy for me to say this?

Also would you be willing to clarify for me what potential damage an investigation into maladministration could cause to the litigation? Essentially I am looking to justify the decision not to investigate to the PHSO.

  

Thank you.

Steve Davies
Complaints, Correspondence and Litigation Officer
Complaints, Correspondence and Litigation Team

55. My reply was as follows:

From: Thornton, HHJ Anthony

Sent: 08 February 2013 16:11
To: Davies, Steve (HMCS-CSU, Cl. Hse)
Subject: RE: **RESTRICTED-PROTECT**

Dear Mr Davies

Thank you for your email.

DK has been in litigation and follow-up litigation and complaints procedures since 1998 in relation to a claim that was started in the County Court in the North East in 1998 and whose subject matter took place in 1993 - 1997. The initial size of his claim was about £100,000 as he pleaded it but which in reality was very much smaller. The claim and its follow-up satellite litigation can be divided into five parts:

(1)    1997 - 2007 - The claim proceedings. The claim never got anywhere near to trial, was struck out at an early stage and his subsequent attempts to get the claim reinstated passed through four different court centres and innumerable hearings before court of appeal, high court, circuit and district judges.

(2)    2003 - 2008 - A complaint to the police and then the IPCC. The complaint to the police was to the effect that a district judge during and following one of the innumerable hearings made a verbal order and then caused a different order to be issued and, when the matter was subject to further appeals, arranged for the tape recording of the proceedings to be doctored so that it sounded as if the original order corresponded with the published order. This complaint was dismissed, reinstated and again dismissed and then the subject of two PCC complaints about inadequacies in the investigation and appeals before those complaints were also dismissed.

(3)   2008 - present. Three separate judicial reviews were started. One, against the Newcastle Combined Court (the ultimate "home court" of his original claim), started as complaints about various costs orders and orders refusing permission to appeal from the Circuit Judge and, by 2010, had escalated into a complaint (largely in reliance on article 6) that the entire process had been a breach of article 6 due to the delays, denials of justice, inefficiencies and incompetence of innumerable judges and court staff in all four courts, perjured evidence, criminal conduct of at least two judges (albeit one principally - see (2) above) and inequality of arms. The other two JR claims sought relief from the alleged inadequate investigations and two tiers of appeal within the PCC dealing with his complaint to the PCC.

(4)   2010 - present.  Just as I was about to conclude the detailed investigation of his complaints about denial of justice and due process (see (3) above), a further round of litigation broke out. [DK], still convinced that the district judge had lied and falsified evidence and perverted justice, sought copies of all statements taken by the police, including the statement made (not under caution) by the district judge in question under the Freedom of Information Act. He was refused by the police, his appeal to the IC was allowed in part, his appeal to the Information Tribunal was dismissed and then, in the autumn of 2012, his application for permission to appeal was also dismissed by the UT. He is in the course of preparing a JR application to have that refusal set aside. All this for a copy of the DJ's statement which the UT judge told him (having read it privately) only contained one reference to [DK].

(5)   HMCS. Meanwhile, there have been innumerable complaints on a variety of matters to all levels of HMCS complaints procedures and to the Police and PCC procedures. A few relatively minor complaints (non-answering of correspondence for a delayed period for example) were well-founded and have led to apologies but all the rest, save possibly for some in the last year which I don't know about, have been dismissed as groundless.

The present position is that I have been waiting since January 2012 to hand down judgment in his applications for permission in the three JRs which were heard together. He successfully spun these hearings out (in front of a succession of judges) by video link to the RCJ from Newcastle Family Court over a 4-year period. I had to labour for hours going through all his complaints and found each of them ill-founded (in a draft judgment still not handed down - see below) and, hence, no article 6 complaint or engagement. Because of the extent and ill-founded nature of his innumerable complaints about judges and court staff, I prepared in draft a very long judgment analysing and dismissing each of his complaints and his complaint in the round. I decided that I should send a copy of my draft judgment to him to give him a last opportunity to comment on the draft, (a sort of "Salmon letter" procedure). This produced 60-pages of irate attempted refutation and a request for a yet further adjournment pending the outcome of his IC appeals. This I granted. 14 months later, we are now trying to fix up a final hearing at which he will seek permission to JR the UT appeal refusal decision, apply for discovery from me in the JR proceedings of the same statements and have a short and final opportunity of seeking to refute my draft judgment as a supplement to his written comments. It is hoped that this hearing will take place in March and my judgment handed down in April - May.

I leave it to you of course to decide whether and when to investigate his complaints or to respond to the PHSO. My "intervention" which you were told about was no more than an answer for a request for information by email from, I believe, your team or the PHSO team in which I merely suggested that since every step along the way has yielded a complaint which has always been investigated with remarkable thoroughness, any investigation by the PHSO might want to wait until the last subject-matter for a complaint has come in. But I believe I made it clear, and if I didn't I do now, that I am not concerned to stop any complaint procedure, it is for your team and the PHSO to decide what is appropriate and desirable.

Since I am still the on-going judge dealing with the JR applications, I don't feel able to give you any comments or views about all of this. I have, however, attempted to summarise the essential factual background. If you wish further information, I will be happy to try and provide it within the constraints I have just mentioned.

Best wishes

Judge Anthony Thornton QC

Dealing with the JR permission applications as a deputy high court judge

56. I do not propose to comment further on the contents of these emails which I will leave to speak for themselves. I consider that they do not provide any evidence of actual or perceived bias or that I had sought to intervene in DK's complaints to the CSU or that I had lied about my involvement in those complaints. They merely provided the CSU with factual information about the progress of the underlying litigation to assist the CSU in reaching its own decisions as to when and how to deal with those complaints.
57. Other suggested examples of bias. The other grounds for suggesting that I am biased or that there is a reasonable perception that I am biased are based on these unparticularised allegations which are not supported by a witness statement setting out full particulars of each allegation and which exhibits all the supporting documents for each allegation:

(1) I have displayed a bizarre and unprofessional case management style;

(2) I have made unreasonable and self-serving interventions in relation to DK's complaints about the way that the proceedings have been administered; and

(3) I have displayed a loss of a judicial sense of objectivity

58. It is difficult to address these complaints without DK having provided details and particulars of them. Suffice it to say that DK has sent the Administrative Court at least 400 emails containing unjustified complaints and unnecessary requests for information over the last few months which have the court staff and myself to spend an inordinate amount of time trying to deal them. DK's unparticularised allegations of bias can be seen to be further steps in DK's attempts to disrupt his judicial review claims and to put off the day when the litigation comes to an end rather than justified complaints of judicial bias.

E. Conclusion

59. For the reasons that I have given, I dismiss the recusal application and all the other accompanying applications made by DK in his application notice dated 26 June 2013. There is no reason to adjourn or further delay the handing down of any of the outstanding applications and those decisions will be provided and handed down with the handing down of the decisions as to these applications. These applications are totally without merit.

Part IV – Application to Amend CO/11166/2008 – Application Notice Dated 18 February 2013

A. Introduction

60. These three renewed applications for permission to apply for judicial review are brought by a tenacious litigant in person, Dr Peter Kelway. They were heard together and each application is closely related to the other two. Their factual background is the claim initially started on 12 August 1998 by Aptech Ltd ("Aptech") in Gateshead County Court, which is one of the courts that make up the Newcastle-upon-Tyne Combined Court ("Newcastle Combined Court"). The claim was continued by DK, once the relevant causes of action had been assigned to him on 6 June 2001. The claim number is NE804908 and it is hereafter referred to as "the principal claim". It was finally brought to an end by an order of Judge Walton in the Newcastle County Court dated 13 June 2008 but there still remain outstanding the assessment of some remaining elements of the costs that DK has been ordered to pay and the enforcement of DK's extensive costs liabilities, all of which remain unpaid. The original defendant was NEP Group Ltd ("NEP") but it assigned its rights and liabilities arising from this claim to Canon (UK) Ltd ("Canon") on 25 April 2002 so that, from that date, the principal claim has been brought by DK against Canon. An associated claim seeking an order for the sale of DK's house which had been charged with his costs liabilities was issued under Part 8 of the Civil Procedure Rules ("CPR") by Canon on 10 November 2003. This claim ("the enforcement claim") has a claim number NE311047^[4]. Both claims involved innumerable applications, hearings and judgments and an excessive amount of court time in the Gateshead, Newcastle-upon-Tyne, Carlisle and Preston County Courts, in the High Court sitting in Preston and in the Court of Appeal. This almost unprecedented number of hearings in a county court claim of limited value arose entirely because of the manner in which the principal and enforcement claims were conducted and defended by DK.
61. He now attacks the entire proceedings as having resulted in gross and systematic violations of his article 6 rights as the claimant who had taken an assignment of a claim for damages which had good prospects of success. He complains in particular about the following matters that he considers he has been subjected to:

(2) Unlawful and criminal conduct by two different district judges in tampering with the tapes recordings of two different hearings;

(3) The suppression of documents that DK was entitled to be provided with;

(4) A series of decisions which were significantly and obviously erroneous in both the law and procedure that they applied and in the exercise of judicial discretion that was involved;

(5) A systematic denial of his rights of appeal from each of the adverse decisions that he was subjected to;

(6) Bias shown to him by a number of the judges who have been involved in the various hearings which adversely affected the conduct of those hearings and the resulting decisions of the judges concerned; and

(7) Systemic administrative inefficiencies, errors and incompetence by both judges and court staff that adversely affected the progress of the principal claim and his defence to the enforcement claim in general and various individual hearings and decisions in particular.

62. In order to address DK's applications for judicial review, I considered that it was necessary to review the entire history of the principal claim and its associated enforcement claim and, in doing so, to consider each of his complaints against the judges and courts that have been involved in both claims in order to determine once and for all whether he has any legitimate complaints about the way the two claims were dealt with and, if he has, what those complaints are and how they have adversely affected him.
63. The other two judicial reviews seek relief against the Independent Police Complaints Commission ("IPCC") as a result of its alleged failures properly to address DK's complaints about various police officers from the Northumbria Police Authority. DK had originally complained to the police that a particular district judge in the Newcastle Combined Court had criminally tampered with court tapes recording the hearing of various applications that he was dealing with on 27 January 2004. The police officers involved in DK's complaints to the Northumbria Police Authority had investigated DK's complaints and had found that they had no substance. DK then sought to attack that conclusion and the way in which his complaints had been dealt with by the officers concerned initially by his complaints to the IPCC and, following the IPCC's dismissal of those complaints, by seeking judicial review of the IPCC's decisions in two separate but related claims.

B. Relevant Factual Background

(1) The principal claim – NE804908

64. The principal claim. The principal claim was started by Aptech, a one-man company then owned by DK. Aptech was the company through which DK undertook his consultancy business that advised on the use of speech technology in the provision of special needs education. In November 1993, NEP Group Ltd ("NEP") entered into an agreement with Aptech to provide maintenance services for Aptech's telephone system for a fee of £187.68 per annum. NEP terminated this agreement in a letter dated 7 August 1997 with effect from 3 November 1997. Aptech was in severe financial difficulties when, on behalf of Aptech, DK gave notice dated 30 June 1998 to all of Aptech's creditors, including NEP, that Aptech was unable to pay its debts and was, therefore insolvent. Aptech should have ceased trading at that point since it is unlawful for a company to continue to trade when it is insolvent. Instead, on 8 August 1998, five weeks after sending out its round-robin letter to its creditors and without first sending NEP a letter before action, Aptech issued the principal claim against NEP seeking damages totalling nearly £100,000. Since Aptech was insolvent at that point, it was unlawful for it to have issued this claim since it could only have done so by continuing to trade whilst it was insolvent.
65. Until Aptech went into liquidation and the principal claim was taken over by its liquidator, DK acted on its behalf without the assistance of a solicitor. He drafted and signed the particulars of claim which alleged that the NEP's breaches of contract in failing to maintain Aptech's telephone system were the sole reason why Aptech had been forced out of business. These breaches had allegedly occurred during the entire four-year period of the contract between November 1993 and November 1997. NEP instructed its solicitors, Watson Burton ("WB") to act for it and Mr Mark Heath, then a solicitor in that firm^[5], acted for NEP and then Canon throughout. WB served NEP's defence on 2 September 1998.
66. In accordance with CPR 26.3, Gateshead County Court sent out an allocation questionnaire to the parties as soon as the defence was served. Aptech and NEP were each required to complete and return this questionnaire within 14 days of its being served on them (CPR 26.3(6). Once the court had received Aptech's questionnaire, it had a duty promptly to fix the first CMC ("CMC") hearing (CPR 29.8). This hearing before a district judge would have set a time-table down to the trial and would also have given all necessary procedural directions to enable the trial to take place (CPR 29.3). That trial could and should have taken place by the autumn of 1999 within 12 months of the claim being issued. However, Aptech never returned its allocation questionnaire so that the court did not at that stage fix a CMC.
67. WB returned NEP's questionnaire to the court and, as required by the CPR, stated what applications it would be making at the CMC. Its notification stated that NEP would be seeking security for costs from Aptech. Since Aptech, on its own admission, was insolvent, NEP would have been entitled to such an order. This would have required Aptech to provide as security for NEP's costs by way of a payment into court or other appropriate means a sum of money that would have been sufficient to cover a reasonable estimate of NEP's costs that Aptech would be ordered to pay to NEP if it succeeded in its defence. If a security for costs order had been made at that time, it would have been coupled with a further order imposing a stay on the principal claim until Aptech had paid into court the sum ordered to be paid as security. It is obvious that Aptech could not have raised any sum ordered to be provided as security for NEP's costs at that stage. In consequence, the principal claim would have been stayed and, most likely, would have been brought to an end in late 1998^[6].
68. On 18 September 1998, instead of returning its allocation questionnaire, Aptech served a list of documents on WB who responded by writing to Aptech on 30 September 1998 seeking security for costs, the same application that it had given notice of in its returned allocation questionnaire. Aptech, however, never answered WB's request and instead took no further part in the principal claim. The next, and only further, steps in the principal claim that were taken were the orders concerned with the striking out of the principal claim that culminated in the striking out order dated 25 May 2000^[7] and the subsequent unsuccessful attempts by DK to reinstate it.

(2) Aptech's liquidation

69. Aptech's liquidation. A compulsory winding up order was made against Aptech on 3 February 1999 on the petition of HM Customs & Excise ("HMCE") that was based on Aptech's failure to pay a retrospective assessment of £93,000 for unpaid VAT. In a letter dated 17 February 1999, WB wrote to the Official Receiver and brought to his attention the existence of the principal claim. The letter informed the Official Receiver that:

"We note that on 3 February 1999 a winding up order was made against Aptech. The claim which was brought against our client was entirely spurious and without merit. Indeed Aptech has not pursued the claim with any diligence or enthusiasm having vexatiously commenced proceedings in September 1998 and taken no further steps to progress the action. Will you please confirm that you will now serve a notice of discontinuance in these proceedings to enable my client to consider its position?"

The Official Receiver replied soon afterwards on Aptech's behalf by asking WB to assist his enquiries by providing summary details of the principal claim, the strength of NEP's arguments and any other pertinent details of the proceedings and of Aptech's affairs. In a letter dated 3 March 1999, WB replied by enclosing copies of the pleadings and providing an outline of the issues involved in the principal claim.

70. The Official Receiver was replaced by a private liquidator who was appointed on 30 March 1999. From that date, all Aptech's assets and liabilities were under that liquidator's sole control and only he could manage its affairs and act on its behalf. Soon after his appointment, the liquidator closed down Aptech's business and arranged for its premises to be vacated and for it to be moved to his professional address in Chelmsford, Essex. The liquidator did not, either then or subsequently, serve on Gateshead County Court on Aptech's behalf a notice of the change of its address for service. WB wrote chasing letters to the liquidator dated 12 May and 28 May 1999 that asked whether the principal claim was going to be pursued. The liquidator replied in a letter dated 17 June 1999 promising a response to these queries in the near future. WB never received that promised response and it sent a further chasing letter dated 6 September 1999 and that was also not responded to. It is now clear that the liquidator decided soon after his appointment, having taken legal advice, to abandon the principal claim altogether. This can be seen from this extract from a letter that DK wrote to WB dated 24 August 2002;

"I have explained elsewhere that [Aptech's] shortfall of £214,000 was reduced by cancellation of over £100,000 in respect of VAT levied. Notwithstanding this, the liquidator informed me that he would have felt unable to proceed even if there had been no shortfall at all and if there were [a] lack of funds to prosecute the action."

71. DK's decision to obtain an assignment of Aptech's causes of action from the liquidator. On 13 March 2000, DK wrote to Gateshead County Court on the notepaper of another of his companies, Keyspell Limited ("Keyspell"), in these terms:

"… I would be obliged if you would consider bringing the above case within the auspices of the new Civil Procedure Rules.

This case has been inactive since 1998 because Aptech Ltd ran into financial problems and has been in liquidation since February 1999. Over the last few weeks, the financial position has changed due to a cancellation of a sum of £93,000 allegedly due to Customs & Excise. This may permit the case to be heard in the name of Aptech Limited (in liquidation) or alternatively for it to be assigned to me personally, depending on the view of the liquidator appointed by the Official Receiver.

I look forward to receiving the necessary document to enable me to make a formal application under the new rules."

72. This letter was misconceived for the following reasons:

(1) In it, DK asked the court to progress the principal claim under the CPR. This was an unnecessary request since the principal claim was already subject to the CPR which had been in force for all civil claims for some time by the time the letter was written.

(2) DK had no status to ask for the principal claim to be progressed in Aptech's name.

(3) The request was premature in requesting the court to give DK an opportunity to pursue the principal claim in his name since he could not have taken any step in this claim unless and until Aptech's liquidator had assigned Aptech's causes of action to him. That assignment did not take place for another fifteen months.

(4) DK never explained why he used the notepaper of another of his companies to write this letter so as to make it appear that the request was being made by Keyspell. That company had had no involvement or interest in the principal claim and it could not, therefore, take an assignment of Aptech's causes of action. If the letter was to have been written at all, it should have been written in DK's name on his own notepaper.

(3) The striking out of the principal claim

73. Directions for the first CMC. Keyspell's letter to the court was brought to the attention of District Judge Howard as part of his box work duties and he, after consulting the court file, issued a direction on his own initiative that the action should be listed for a CMC so as to ascertain the current circumstances of Aptech and the present position of the principal claim. DK subsequently complained that this step had been taken unfairly and without there having been a request from either party for a CMC but this complaint was misconceived. The district judge had acted as required by the CPR when issuing this direction since it was issued in compliance with his CPR duty to manage cases and to do so, when necessary, on his own initiative^[8]. As a result, the court issued a direction dated 17 March 2000 to the parties that a CMC would be held on 12 April 2000 without there having been request from the parties for such a hearing. The district judge also directed, again in compliance with his case management duties imposed by the CPR^[9], that Aptech should file a chronology of the action, a summary of the case, a copy of the directions sought and a completed allocation questionnaire at least three days before the hearing.
74. Service on Aptech of notice of the CMC. District Judge Howard's order was served by post by the court on the parties at their respective addresses for service. The Post Office was unable to serve the notice on Aptech and returned it to the court marked "gone away". Judge Moir correctly found that the order had been sent to the parties. NEP's solicitors responded to the district judge's order in a letter to the court dated 20 March 2000. The letter informed the court that Aptech had been placed in liquidation and that they had heard nothing since corresponding with the liquidator in June 1999. Copies of both the certificate of the appointment of the liquidator and WB's correspondence in May and June 1999 that had been ignored by the liquidator were enclosed with the letter. This letter could not be considered as a notification to the court of Aptech's change of address for service since it did not refer to any such change of address. Moreover, it was not written by or on behalf of Aptech's liquidator who was the only person who would have had authority to give such a notice of change.
75. Hearing of the first case management hearing. Aptech did not comply with the pre-hearing directions that had been issued by the court and it was not represented at the case management hearing. Since Aptech had been served at its notified address for service, the deputy district judge who conducted the case management hearing was entitled to proceed with the hearing and decided to do so. The deputy district judge was addressed by NEP's solicitor who applied for an order striking out the entire claim on the grounds that the liquidator had demonstrated by his inaction and by his failure to reply to WB's letters that Aptech had no intention of pursuing the principal claim. Moreover, he demonstrated to the deputy district judge that the principal claim had been started vexatiously, was incorrectly pleaded and was ill-founded. Having heard these submissions, the deputy district judge exercised his discretion to strike the principal claim out under CPR 3.4(1) because the principal claim disclosed no reasonable grounds for being brought and was an abuse of process and because Aptech had been guilty of inexcusable delay in progressing the principal claim and had failed to comply with material provisions of the CPR. Despite DK's subsequent complaints about this order, the deputy district judge was fully entitled to strike out the principal claim on all these grounds in reliance upon the evidence that had been placed before him.
76. Judge Moir found in her judgment that although no copy of the order that the deputy district judge had made was available to her, the order had been made, issued and served on Aptech at its address for service. These findings were made after she had accepted the evidence contained in Mr Heath's witness statement that he had attended the CMC hearing and was able to confirm that this order had been made by the district judge and the more general evidence to the effect that all notices relevant to the striking out of the principal claim had been correctly served by post by the court on the parties at their respective addresses for service^[10].
77. Setting aside the strike out order. On 26 April 2000, Deputy District Judge Armstrong on his own initiative set aside the order dated 12 April 2000. This order was issued after the deputy district judge had been informed by a member of the court staff that there had been a failure of service on Aptech of the order dated 17 March 2000.
78. "Ex parte" application dated 12 May 2000 to set aside the order dated 26 April 2000. When WB received a copy of the deputy district judge's order dated 26 April 2002, it issued an application notice dated 12 May 2000 applying for it to be set aside and for the principal claim to remain struck out. This application identified the party to be served as Aptech and that the application should be dealt with at a hearing with a time estimate of ten minutes. That application was issued by being sent to the court with an accompanying witness statement sworn by Mr Heath which set out the background to the principal claim and described its vexatious nature and the inactivity of both Aptech and its liquidator. When the application was initially sent to the court, it was not accompanied by the necessary application fee. The court returned the application to WB who resubmitted it with the appropriate fee under cover of a letter dated 15 May 2000.
79. Ex parte order dated 25 May 2000. On receipt of this letter, the court clerk dealing with it consulted the court file and saw that the application related to the earlier reinstatement order of 26 April 2000 that had been made as a result of the non-service of the striking out order of 17 March 2000. As a result, the court clerk sent the file to Deputy District Judge Baird on 25 May 2000 as part of his box work with WB's letter on the top of the file and with this request written on the letter:

"Sir - are you prepared to deal with this app on paper?"

80. The deputy district judge read the application, WB's covering letter submitting it to the court, Mr Heath's witness statement and the other documents relating to the original case management hearing and the striking out order that were on the file. Having done so, he responded to the court clerk's request as follows:

"Yes. Ex parte order as sought. JJ Baird DDJ. 25.5.00"

This direction was issued on the initiative of the deputy district judge and pursuant to his case management powers under CPR 23.4 which states:

"23.4 Notice of application

(1) The general rule is that a copy of the application notice must be served on each

respondent.

(2) An application may be made without serving a copy of the application notice if this is permitted by-

(a) a rule;

(b) a practice direction; or

(c) a court order."

Further, the relevant Practice Direction in paragraph 3 of CPR PD 23, states:

"Applications without service of Application Notice

3. An application may be made without serving an application notice only:

(1) where there is exceptional urgency,

(2) where the overriding objective is best furthered by doing so,

(3) by consent of all parties,

(4) with the permission of the court,

(5) where paragraph 2.10 applies,

(6) where a court order, rule or practice direction permits."

81. It is clear that the deputy district judge, having read the evidence in Mr Heath's witness statement, concluded that the court should exercise its discretion to deal with the application without it first being served on Aptech since it was clear that Aptech was in liquidation and was no longer trading, that the liquidator had abandoned the principal claim which was now both stale and dormant, that Aptech had not provided the court with a new address for service when it abandoned its trading address and that there were good reasons for reinstating the striking out order, particularly that it had been made on notice and at a hearing at which Mr Heath had been present. The deputy district judge was therefore well within his powers in exercising his discretion to direct that the court should forthwith reinstate the striking out order. His direction, albeit written in "CPR-shorthand", was to this effect:

"Having read:

(1) The defendant's application dated 12 May 2000;

(2) Mr Heath's accompanying witness statement; and

(3) The contents of the court file

It is ordered on the court's own initiative (CPR 6.9 and 23.4) that:

1. The application will be dealt with as an ex parte application by the court without a copy of it or the accompanying witness statement of Mr Heath first being served on Aptech.

2. The order that is to be issued forthwith is:

1. The order of Deputy Judge Armstrong dated 26 April 2000 be and is set aside.

2. The Claimant's claim do remain struck out.

3. There be no order as to costs."

82. The deputy district judge's direction that the "order as sought" should be drawn up was given effect to by the court drawing up an order in the terms sought by the application and the perfected order was served on Aptech at its address for service. For these reasons, the recital to the order correctly stated that:

"Upon reading the ex parte application, it is ordered that …"

since the application had become an ex parte application as a result of the direction of the deputy district judge. This wording was acceptable CPR-shorthand to be inserted into the order albeit that a fuller wording would have read:

"Upon reading the application of the defendant that has become an ex parte application following an order of the court made on its own initiative on 25 May 2000."

The order made by the deputy district judge was, therefore, a regular order that had been made in conformity with the relevant provisions of the CPR.

83. Service of order and subsequent non-service of a Notice of non-service. The order was drawn up and then issued by the court by posting a copy of it to both WB and to Aptech at their respective addresses for service. The Post Office returned Aptech's copy marked "gone away". An entry on then placed on the court log dated 22 June 2000 which read:

"N documents not served, additional information, order upon Claimant".

This entry shows that an "N" – being a Notice of non-service^[11] - had not been served on WB in relation to the "additional information" that had been served on the court and the order dated 25 May 2000. The "additional information" was clearly a reference to Mr Heath's witness statement that had been served with the application notice dated 12 May 2000^[12]. These documents had been served by the court on Aptech at its address for service and had been returned to the court by the Post Office marked "gone away". A court clerk logged the court's receipt of the Post Office's notification and this automatically triggered the production of a notice of non-service by the court's automated logging system on 22 June 2000. The court clerk would then have decided that the notice of non-service should not be served on WB since it was not a document that WB had requested the court to serve on Aptech .

84. The Acting Office Manager (AOM") of Gateshead County Court confirmed to DK in a letter dated 11 September 2003 that a representative of WB (who must have been Mr Heath although the letter does not identify him) had spoken to the AOM soon after the log entry had been made on 22 June 2000 having received NEP's copy of the order. The AOM informed that representative that a notice of non-service had been logged as having been produced but that there was no indication on the log that that notice had been sent to WB.
85. No obligation on the court to have served a Notice of non-service on WB. CPR 6.11 provided as follows:

"6.11 Notice of non-service

Where-

a) a document is to be served by the court; and

b) the court is unable to serve it,

the court must send a notice of non-service stating the method attempted to the party who requested service."

86. DK sought to make play of the information that he had received that the notice of non-service had not been served on WB. However, the notice did not have to be served on WB because the order that had been served on Aptech's address for service and had then been returned by the Post Office had been made "ex parte" by virtue of a direction made by the deputy district judge on the court's own initiative^[13]. Therefore, the provisions of CPR 6.11 were not applicable since that order provides that an notice of non-service is only to be served on a "party who requested service" of the documents in question and, in this case, the documents were served by the court on its own initiative having previously ordered on its own initiative that the application should be treated as having been made ex parte, thereby countermanding WB's request to serve it. The court's decision not to issue a notice of non-service was, therefore, both regular and in conformity with the CPR even though an N notice had previously been generated automatically by the court's automated logging system.
87. In any event, WB was notified of non-service, albeit verbally, in the course of the telephone conversation between Mr Heath and the AOM soon after 22 June 2000 when the AOM informed Mr Heath that the order had been served on Aptech at its address for service but that no notice of non-service had been served on WB.
88. Procedural irregularity – non-service of the relevant documents. DK maintained throughout the reinstatement proceedings that the relevant application notices and orders had never been properly served, had not been made the subject of notices of non-service notices and had not, therefore, been regularly served on Aptech. DK submitted that neither Aptech nor its liquidator had not been served with any of the following crucial documents:

(1) The court's notification dated 17 March 2000 of its decision to fix the date of a case management hearing on its own initiative as 12 April 2000.

(2) The order dated 12 April 2000 striking the action out.

(3) The order dated 26 April 2000 issued by the court on its own initiative setting aside the striking out order and directing a case management hearing and also directing Aptech to file appropriate documents.

(4) The application notice issued by WB dated 12 May 2000 seeking to set aside the order dated 26 April 2000 and to restore the striking out order made on 12 April 2000.

(5) The court's ex parte order dated 25 May 2000 in response to the application notice dated 26 April 2000 setting aside the order dated 26 April 2000 and directing that the action should remain struck out.

89. Summary of DK's submissions as to non-service. DK submitted during the reinstatement and permission hearings that the non-service of the application dated 12 May 2000 and the resulting order dated 25 May 2000 had deprived Aptech of the opportunity to oppose the application to reinstate the ex parte striking out order dated 25 May 2000 and to apply within time to set it aside. The order was, in consequence, both irregular and one that had deprived both Aptech and him of a fair trial on the merits of Aptech's case.
90. This submission was advanced on five separate and cumulative grounds:

(1) The court had been misled by Mr Heath, who was WP solicitor who had the conduct of the NEP's defence to the principal claim, in his witness statement that accompanied WP's application to reinstate the striking out order. In particular, the court had been misled into believing that Aptech's trading address and its address for service was still its Ponteland address even though he knew that Aptech had vacated that address and that its address for service had been moved to the address of the liquidator. In consequence, the court had served the application and the resulting order by sending them to the Ponteland address so that these documents had never come to Aptech's attention. DK went so far as to allege that Mr Heath had deliberately misled the court because he wanted the relevant documents to be sent to the wrong address so that they would not come to Aptech's and the liquidator's attention with the result that the principal claim would be struck out without any opposition from Aptech and NEP would unfairly be able to succeed in defeating a good claim.

(2) The application had been made ex parte and the resulting order was, on that ground alone, irregular and unlawful.

(3) None of the relevant documents had been served on Aptech since they had been sent to its old address that it had already vacated and had then been returned to the court by the Post Office marked "gone away".

(4) Even if the Ponteland address had remained the official address for service, the court should have sent additional copies of the documents being served on the liquidator.

(5) The court should have served the documents on DK as a person that it knew, or ought to have known, was directly concerned with the principal claim and who were entitled to have the relevant application and the resulting order drawn promptly to his attention.

(6) When the striking out order had been returned to the court unserved, a notice of non-service should have been sent to WB. Had WB received this Notice, it would have had to have brought it to the attention of Aptech and Aptech could have applied promptly to set the striking out order aside.

Each ground was misconceived for the reasons set out in the following paragraphs.

91. (1) Court misled by NEP's solicitor. DK's contention was that Mr Heath had committed perjury in his witness statement when stating that Aptech's address for service of the application was its Ponteland address when he knew that Aptech had vacated that address and it would not become aware of the application if it was served there. He also contended that the witness statement contained a number of other perjured statements.
92. DK had, prior to the hearing of his application to reinstate the action, applied for permission to cross-examine Mr Heath at the hearing before the district judge in order to seek to show that his statement in his witness statement about Aptech's address for service was a lie. This application was refused by Judge Walton. Undeterred, DK had subsequently applied to bring contempt of court proceedings against Mr Heath as part of his application for permission to appeal the district judge's striking out order and that application was dismissed by Judge Moir. In doing so, she made this finding about Mr Heath's evidence and the suggestion that it was perjured:

"I turn then to the further application in which DK alleges that Mr Heath [the solicitor whose evidence he was impugning] did not have an honest belief in the truth of the statement he made. He told me that Mr Heath invented facts, and was determined to influence the judge. … At the time the statement was made on 12 May 2000, I am satisfied that not only did Mr Heath have an honest belief in its contents but that it was a reasonable belief based upon the information before him. … ."

93. It is clear from that finding that Mr Heath had been neither dishonest nor misleading in his witness statement and indeed that all his evidence contained in that witness statement was truthful. This finding was inevitable since Mr Heath, in giving Aptech's Ponteland address as its address for service, was merely providing the address for service which the CPR required the court to use as its address for service and which it already had been provided with.
94. (2) Ex parte application and order. Given the circumstances set out above, the order that was made, being based on an ex parte application following the direction of Deputy District Judge Baird, was both valid and regular^[14].
95. (3) The documents were not served on Aptech. DK suggested that the order and the subsequent orders setting it aside and then reinstating it were invalid because none of these orders had ever been drawn up, issued or served on Aptech. He had not raised this contention at the reinstatement hearing and it was not referred to in the district judge's judgment. The submission was misconceived in its entirety. This is because, when Aptech had initiated the principal claim by applying to the court to issue the claim form, it had been required to notify the court of its address for service of all documents relating to that claim. This was the address where any application notice, document or order had to be served, if it had to be served by the court, by first class post^[15]. Aptech gave this notification to the court in the usual manner by giving it on the claim form and, in Aptech's case, that address was its Ponteland address. The court subsequently always used that address as Aptech's address for service by sending all documents it needed to serve on Aptech to that address. The CPR required that address to be used unless and until Aptech notified the court of a new address for service. Furthermore, if Aptech changed its address for service, for example by moving away from the address for service that it had previously notified to the court, it was required to give notice in writing to the court and to all other parties of that change as soon as it had taken place^[16].
96. When Aptech went into liquidation, the liquidator should have immediately notified the court of his address as Aptech's new address for service. However, he did not do so because, as Judge Moir found in her permission judgment, he was well aware of the proceedings yet took no steps to comply with his obligations to inform the court and NEP of this change of address for service. Indeed, the liquidator had taken a conscious decision not to notify the court of Aptech's new address for service because he had already decided to abandon the principal claim.
97. It followed that Gateshead County Court, as the court that had had the responsibility to serve the relevant documents on Aptech, was unaware of Aptech's change of address for service since the liquidator never notified it of a change of address for service. Had the court become aware from any other source than the liquidator of Aptech's new address for service, it would still have been required to serve Aptech at the address for service in Ponteland that Aptech had originally notified it of since only the liquidator could serve a valid notice of change of address for service on behalf of Aptech. In those circumstances, Gateshead County Court was required to serve each of the documents in contention on Aptech's address for service by posting them to Aptech's vacated Ponteland address since that remained its notified address for service. It was not disputed in the reinstatement proceedings that that was the address that had been served with these documents since, as was also accepted, the court file showed that each of the five documents in contention had been served on Aptech at its address for service and had also been returned to the court by the Post Office marked "gone away".
98. (4) Service by the court on the liquidator. DK submitted that the court should have ascertained the liquidator's address and served the documents for Aptech at that address. His submission was that the court would have learnt from his letter written on Keyspell's notepaper dated 13 March 2000 of Aptech's new address for service and would have had this confirmed as Aptech's new address for service on receipt of WB's letter dated 20 March 2000 enclosing the certificate of the appointment of the liquidator. However, the court was not permitted to respond to that information by unilaterally changing the address for the service of documents on Aptech and could only have done so once Aptech's liquidator or solicitors acting on his behalf notified the court of a different address. Neither Keyspell nor DK nor WB had the authority of the liquidator to act on behalf of Aptech in relation to a notification of a change of the address for service so that any communication from any of them, however clearly expressed, could not constitute a valid notification of a change of the address for service on Aptech and its liquidator.
99. (5) Service by the court on DK. DK also contended that he should have been notified of the applications and orders since it should have been clear to the court that he had an interest in the principal claim. However, it was neither aware, nor had been notified, of any interest that DK had in the principal claim. Moreover, it was under no obligation to serve DK even if it had been notified of his interest in the principal claim since its only obligation, when serving application notices or orders, was to serve each party to the action at its notified address for service.
100. (6) Non-service of a notice of non-service of the documents dated 12 and 25 May 2000 on WB. The non-service of a notice of non-service on WB was regular and in conformity with the CPR^[17].
101. Conclusion – irregular service. None of DK's submissions that the striking out order or any other order was irregular have any validity. District Judge Powell and Judge Moir in their respective judgments considered them at length and rejected them all out of hand and they have no substance. The orders of 12 April 2000, 26 April 2000 and 25 May 2000 and the application notices of 17 March 2000 and 12 May 2000 were regularly served on Aptech and no notice of non-service of the application of 12 May 2000 or of the order of 25 May 2000 was required to be served on WB. It follows that DK was not entitled to have the order treated as being an irregularity and it was not obtained unfairly, illegally or in breach of his article 6 rights. Furthermore, all his complaints and criticisms of the Gateshead County Court in relation to the various communications, applications, hearings and orders it dealt with in the period March – June 2000 were addressed to and rejected by Judge Moir found them all to be ill-founded. I find that Judge Moir was correct and entitled to find in this way.

(4) The application to reinstate the principal claim

102. Assignment to DK. On 31 May 2000, DK wrote to the liquidator with an offer to take an assignment from him of Aptech's causes of action against NEP. DK did not provide the court with a copy of this letter and he did not explain what triggered it. However, it is of particular note that this letter, which initiated the discussions between DK and the liquidator that led to an assignment to him of Aptech's causes of action against NEP, was dated six days after the striking out order had been made on 25 May 2000. This coincidence of dates suggests that DK had become aware that a striking out order had been made immediately after it had been made yet he did not issue his application to set it aside until 21 November 2001.
103. DK's request to the liquidator led to negotiations between them which were conducted at a very leisurely pace and, eventually, DK purchased an assignment of Aptech's causes of action against NEP when the engrossed deed of assignment was finally completed on 6 June 2001 for a modest consideration of £100 plus 15% of any realisation from the principal claim. Some months later, DK issued an application dated 21 November 2001 seeking an order to reinstate the action. I will refer to this application hereafter as the "reinstatement application", to the hearing of that application as the "reinstatement hearing" and to the decision made by District Judge Howard as the "reinstatement decision". DK was unable to proceed with that application since he had not yet been substituted as the claimant and he did issue his application to be substituted as the claimant until 15 April 2002 and was finally substituted as the claimant by an order dated 24 April 2002. Meanwhile, following the transfer of its assets by NEP to Canon (North East) Business Solutions Ltd ("Canon"), Canon was substituted as the defendant to what had become DK's action by a consent order dated 11 September 2002.
104. Application to reinstate the principal claim. DK's reinstatement application was not heard until 21 November 2002. DK's only explanation for the delay of thirty months between the striking out of the action on 25 May 2000 and the hearing of his reinstatement application by District Judge Powell on 21 November 2002 was that he was arranging for the assignment from the liquidator to himself of Aptech's causes of action against NEP and for the substitution of Canon for NEP as the defendant.
105. This explanation does not begin to explain the various delays that occurred. Indeed, DK never stated when and in what circumstances he first became aware of the striking out order, presumably because he appears to have been aware of it as soon as it was made. Moreover, DK never provided any satisfactory explanation for the following delays:

(1) The delay that occurred because the negotiations for the assignment lasted for thirteen months so that the assignment was only completed on 6 June 2001. If the negotiations had been conducted with any sense of urgency, it could and should have taken place a few days after it was first applied for on 31 May 2000.

(2) The delay that occurred between DK taking the assignment and his obtaining an order substituting himself as claimant. This delay was one of ten months and the substitution was finally ordered on 15 April 2002.

(3) The delay that occurred in issuing the reinstatement application. This delay was, in reality, one of ten months. DK issued the application in his own name on 21 November 2001 but he could not have proceeded with it until he had been substituted as a claimant. He therefore needed to explain why he didn't apply to be substituted as a defendant immediately after obtaining the assignment and why he didn't issue the reinstatement application at the same time.

(4) The delay that occurred between the date of the issue of the reinstatement application and its being heard. This period was one of twelve months given that the application was heard on 19 November 2002. The court was not responsible for much of this delay which appears to have been caused firstly by the delay in obtaining the order of substitution of DK for Aptech, which only occurred on 15 April 2002, and secondly of Canon for NEP, which only occurred on 11 September 2002.

106. DK's application, therefore, could have been struck out on two grounds without there having been a full hearing as to its merits. The first ground was that it was irregular as having been issued by DK before he had been substituted as a claimant and the second that it was not issued in time. CPR 23.10 required Aptech, as the party who had not been served with a copy of the application notice dated 12 May 2000, to apply within seven days after the date that the order of 25 May 2000 was served on its address for service if it wished to apply to have the order set aside or varied. That was the critical date for service since DK was making his application as the assignee and successor of Aptech and, therefore, the relevant date for determining the date by which the application should have been made was defined by CPR 23.10(2) as being one that was within seven days of the service of the order on Aptech as "the person making the application" for the purposes of CPR 23.10(2). Even if DK was entitled to a fresh period of seven days from the date of the service of the order on him, that period would have started from the date he first knew or, or ought to have known of, the making of the order and that date was 31 May 2000 at the latest^[18].
107. It follows that, in the absence of any compelling explanation justifying the several periods of delay already referred to, the court could have declined to hear the application and could have struck it out as being irregular and as having been issued substantially out of time. However, the court in its discretion was prepared to hear the application, once DK had been substituted as claimant and Canon as defendant, and to treat it as one to which CPR 3.9 was applicable. That enabled the court to consider all periods of delay in the round and to take those into account with all the other relevant circumstances in deciding whether or not to reinstate the principal claim. This was, however, a benign decision and one which was greatly to DK's advantage in that it gave him a right to a hearing that he was not strictly entitled to.

(5) The reinstatement decision

108. Basis of the reinstatement decision. District Judge Howard, in his discretion, treated DK's reinstatement application as being an application for relief from the sanction of entering judgment against him (CPR 3.6(4) and 3.9). This is because the effect of the order dated 25 May 2000 was to strike out DK's claim and, thus, to enter judgment against him. This approach was one that the district judge was fully entitled to take, particularly as he had exercised his discretion to permit the application to be argued at all.
109. It followed that the court considered all the relevant circumstances before deciding not to reinstate the principal claim. These included all those circumstances set out in the checklist contained in CPR 3.9 which are applicable to a decision whether or not to grant the relief of reinstating the case. The list was not exhaustive since the rule also required the court to consider all other relevant circumstances.
110. Given the facts of this case, amongst the matters that the court had to consider were the following:

(1) The extent of and the justification for the lengthy delay that had occurred since the principal claim had been issued;

(2) The merits of the principal claim and its prospects of success;

(3) The prejudice that NEP and Canon had been caused by the delay;

(4) Whether the failure to comply with the court's directions had been intentional;

(5) Whether Aptech had had and DK still had a genuine intention of pursuing the principal claim to trial;

(6) Whether the principal claim was vexatious or was being pursued for an ulterior motive;

(7) What the effect on DK would be of losing the principal claim; and

(8) The conduct of Aptech, DK, NEP and Canon and their solicitors in relation to the principal claim.

111. The reinstatement decision. After a full day's hearing, District Judge Howard dismissed DK's application and refused him permission to appeal. DK was ordered to pay Canon's costs of the application and to make an interim payment of £11,000 to Canon on account of those costs by 6 December 2002. The judgment succinctly stated why the decision that the principal claim should remain struck out was inevitable. The crucial final summary read as follows:

"… the affidavit of Mr Heath … details the names of witnesses whom he would wish to call to give evidence … [three] are no longer with Canon UK and their whereabouts are unknown. [2] are now employed by Canon.

There are 9 other witnesses that he details … whom he may wish to call to give evidence. Counsel for the Defendants states that if this case is allowed to be reinstated then because of the difficulty of tracing some of the witnesses to be called, coupled with the fact that this is now an aged claim, it would be unfavourable to Canon to allow this litigation to proceed. He argues that the case should remain struck out and the Claimant's application for reinstatement be dismissed. He also stated that the Claimant's claim was speculative in its nature and the Claimant would have great difficulty in succeeding with his action for damages. The Claimant he stated would have an uphill struggle to pursue his claim successfully and it would be very costly for Canon to defend with limited evidence. Security for costs by Canon against the Claimant was not available and the evidence has disappeared or had deteriorated. Upon the basis that the liquidator had decided not to proceed then this claim should not be able to either he argued.

The Claimant argues that it would be possible for the newly appointed defendant company to defend the claim and call satisfactory evidence and that he would stand good prospects of success if it proceeded having been reinstated.

I take the view that this is aged litigation which began in August 1998. Once the summons was issued by the company, there was total inactivity until 22 November 2001. That was 3 years and 3 months. Since then, many of the Defendant Canon witnesses have move on and I believe this litigation for Canon would be costly to defend because of the passage of time and the lapse of normal memories of everyday witnesses in relation to the Claimant's litigation. They would be at a substantial disadvantage. They would need the support of many witnesses because I view the Claimant's original claim as speculative and it would need detailed investigations by the Defendant as to all witnesses who might have been involved with Aptech/NEP.

In conclusion therefore because of the huge disadvantage that this would place upon the shoulders of Canon and because of the passage of time of litigation the culpable inactivity of the Claimant in issuing an application for reinstatement once the action was assigned to him, I am left with no alternative but to refuse the Claimant's application for reinstatement of the claim and confirm that the action remain struck out."

(6) Application for permission to appeal

112. Application for permission to appeal. An appeal from the district judge's decision would not have been a final appeal so that an appeal from the district judge's order lay to a circuit judge sitting in the county court. That appeal could only have been brought if DK had obtained permission to appeal. Initially, he applied to the district judge for permission but, since that application had been refused, he had to make a second application to, and obtain permission from, a circuit judge. Unless the court directed otherwise, that second application for permission had to be dealt with on paper without a hearing. Following the issue of DK's application for permission to appeal, the appeal proceedings were transferred to the Newcastle-upon-Tyne Combined Court where the case remained^[19]. In an order dated 13 December 2002, Judge Walton ordered that:

(1) The district judge's interim payment order would be stayed pending the hearing of DK's appeal;

(2) The permission application would be listed for an oral hearing; and

(3) The appeal hearing was "to follow" the application hearing if permission was granted.

That direction had the effect that both the permission application and the appeal hearing would be heard together and that both parties would present their arguments in full at the same hearing in relation to both the application for permission and the appeal and the judge would then decide whether to grant permission and, if permission was granted, whether to allow or dismiss the appeal. Such a hearing is frequently ordered and is usually referred to as a "rolled up" hearing.

(7) Application for permission to appeal

113. I will refer hereafter to the application for permission to appeal as the "permission application", the hearing of that application as the "permission hearing" and the decision of Judge Moir in relation to that application as the "permission decision". At the hearing before Judge Moir in the Newcastle Combined Court, DK represented himself and Canon was represented by counsel. The hearing extended over two full days on 7 March and 7 April 2003. DK addressed the judge for a significant part of the eight hours that the hearing lasted for and his arguments covered every aspect of both his permission application and of his possible appeal. He also presented a further application to commit Mr Heath for contempt of court in relation to the witness statement that he had submitted for use at the CMC hearing held on 13 May 2000^[20].
114. The permission hearing was concerned with whether the proposed appeal had a real prospect of success or whether there was some other compelling reason why the appeal should be heard (CPR 52.3). The substantive appeal would have involved a review of the district judge's decision unless the circuit judge considered that, in the circumstances of the individual appeal, it would be in the interests of justice to hold a re-hearing (CPR 52.11(1)). The substantive appeal could only have succeeded if the decision of the district judge was found to have been wrong or because it was unjust because of a serious procedural or other irregularity (CPR 52.11(3). In determining the substantive appeal, the circuit judge was not permitted to hear evidence which had not before the district judge (CPR 52.11(1)) unless the appellant could show that there were exceptional reasons why the evidence had not been adduced at the first hearing, that the new evidence would probably have an important influence on the result of the case and that it was apparently credible although not incontrovertible^[21].
115. Judge Moir had all these principles in mind in conducting the two-day hearing, in reaching her decision and in preparing her detailed written reserved judgment. In particular, she approached the application on the basis that any appeal would be a review of the district judge's decision but that, given the factual background of this case, that approach would inevitably involve a consideration of whether the appeal if brought would have a good prospect of being successful. Moreover, she was particularly conscious that DK was a litigant in person who should be allowed to put forward all the arguments that he wished to advance. She therefore permitted DK to refer to matters and arguments that may not have been advanced before the district judge and she took into account the evidence contained in the further witness statements that had been filed in respect of the contempt of court application that he was also advancing. It is clear from a reading of the transcript of the argument that was made available to me that both DK and Canon's counsel were, in consequence, able to reargue the entirety of the application to reinstate and did so by reference not only to the arguments put before the district judge but additionally relied on evidence and arguments that had not been referred to below.

(8) Judge Moir's decision as to the merits of Aptech's principal claim

116. Judge Moir's decision. On 11 June 2003, Judge Moir handed down a reserved judgment refusing DK permission to appeal District Judge Howard's refusal order and also refusing his application to initiate contempt of court proceedings against Mr Heath. The judge concluded that the proposed appeal had no prospects of success and that it would not be in the interests of justice for there to be a rehearing of the reinstatement application by a county court judge. This decision was based on Judge Moir's conclusion that the district judge's decision was right, just and untainted with any procedural error.
117. Judge Moir's conclusions as to the merits of Aptech's original claim against NEP that DK had adopted by the assignment were the same as the district judge's conclusions. Her judgment included these passages:

"Upon the material before the District Judge and in particular the particulars of claim, it was within his discretion to form the view that the claim was speculative. As have I, the District Judge allowed a considerable amount of court time to enable the Claimant to put fully all the points he wished to raise. I am satisfied that the Claimant would face difficulties establishing his claim. The District Judge described it as speculative, having heard the Claimant I agree with the District Judge. I am satisfied that the District Judge was wholly fair and unbiased in his approach. I am further satisfied that the delay in this case as found by the District Judge has brought about prejudice to the Defendants. … The risk is in my view a substantial one that a fair trial is impossible and the risk has been created by the conduct or inactivity of the Claimant. Having given very careful consideration to all the matters raised by the Claimant I have concluded that there is not a realistic prospect that the Claimant will be able to establish that the District Judge exercised discretion wrongly or that there was a procedural irregularity and, thus, I refuse permission to appeal."

118. Discussion of the merits of NEP's and DK's substantive case. Aptech's claim had been started with a very generally pleaded particulars of claim document in August 1998 only two months after Aptech had served notice on its creditors that it was unable to pay its debts. No letter before action detailing the principal claim was sent to NEP before the claim form was issued. The claim arose out of a small value annual maintenance contract of the telephone equipment of a small company specialising in the provision of advice and other services to users of special needs technology suffering from learning difficulties. The contract ran for four years for a payment of £187.68 per annum and it ceased when NEP served contractual notice of termination on Aptech. The particulars that Aptech provided of the relevant terms of the contract and of the alleged breaches, causal link between those breaches and the losses suffered and the loss itself were sparse. The principal claim was put forward solely on the basis that NEP had failed to identify, test and rectify faults in the equipment and to report them to BT, the manufacturer of the equipment and Aptech.
119. These unparticularised breaches of contract allegedly caused unparticularised loss that was pleaded as having occurred under three heads of a very general nature. These were:

(1) Additional administration time spent by Aptech as a result of the breaches totalling 1280 hours that was charged out at unparticularised hourly rates totalling £39,000;

(2) Loss of revenue claimed at £30,000 or 10% of total revenue; and

(3) Loss of future profits claimed at £30,000 over a 4-year period claimed as being 10% of 60% of 25% of £2m.

No expert's report or further explanation was provided of these alleged breaches and loss even though DK, with his technical training and background in information technology, was well placed to provide extensive particulars of any technical problems that had occurred to Aptech's telephone system as a result of NEP's breaches of contract and of the loss if such problems had occurred.

120. The particulars of claim alleged that NEP's breaches of contract were the sole and entire cause of its "withdrawing from the marketplace", its business collapse and its consequent liquidation. Aptech's total deficiency was subsequently identified by the liquidator to be £214,936. However, in June 1998, eight months before Aptech was wound up, DK had written to Aptech's creditors^[22] to inform them that Aptech was insolvent and explained that its financial difficulties had been caused by its indebtedness to HMCE following a retrospective assessment of £93,000 for unpaid VAT, by the insolvency of one of its debtors and by its delay in completing a government contract. Although NEP's breaches of contract were also referred to as a cause of its insolvency, it is clear that they could not have brought about these other problems which were the operative cause of Aptech's insolvency. It is clear, therefore, that DK had settled Aptech's particulars of claim knowing that it was untrue that NEP's actions had been a cause, let alone the sole cause, of Aptech's financial difficulties and liquidation.
121. Conclusion – merits of Aptech's claim. DK contended at length and with some passion in the various grounds documents, witness statements and written submissions that he served in connection with his judicial review applications that he had lost the opportunity to put forward a substantial claim which had good prospects of succeeding. A careful consideration of these documents failed to reveal any flaw in the findings of the district judge in his refusal decision and of the circuit judge in her permission decision that the claim had no merit and no realistic prospects of success and was vexatious and speculative. It is therefore clear that the claim was correctly struck out.
122. Delay. District Judge Howard and Judge Moir's decisions were also based on a number of further factors. The first was the inexcusable delays that had occurred. Having started the principal claim, NEP did nothing to progress it until it went into liquidation in early 1999 whereupon the liquidator rapidly decided, having taken legal advice, to abandon the principal claim. Nothing further happened for two years when, finally, DK took an assignment of NEP's causes of action. DK issued the application to set aside the strike out after a further unexplained delay of seven months. DK never explained why the case was started by NEP two months after its public announcement that it could not pay its debts, how NEP had intended to fund the action, why he had not taken an assignment of the claim soon after NEP went into liquidation, why that assignment had not been taken much earlier than it was, why the application to set aside the strike out was not issued immediately after he had taken that assignment and why the application was not heard within weeks of it being issued.
123. Prejudice. The delays caused by Aptech, the liquidator and DK were inexcusable and that the resulting prejudice to NEP and Canon was considerable and irremediable. This was particularly so since Canon had lost contact with several significant witnesses and all the evidence had been rendered unreliable as a result of failing memories caused by the events in question having occurred, by the date of the permission hearing, between seven and ten years previously. Furthermore, neither DK nor Aptech had the resources to proceed with the claim and NEP had suffered extensive prejudice by that delay. Canon had also suffered prejudice by the assignment which had precluded its obtaining security for its costs since such security is only obtainable from a company.
124. Overall conclusion. It is clear that Aptech's original claim was vexatious and that it had never had any prospects of success. Furthermore, the delays that had occurred were unjustified and inexcusable and had caused Canon irremediable prejudice. Finally, Aptech had been in significant and inexcusable breach of a series of CPRs which, amongst much other prejudice, had caused Canon to lose the opportunity to obtain an order requiring Aptech to provide security for costs. For all these reasons, Deputy District Judge Baird had correctly struck the claim out, District Judge Howard had correctly refused to reinstate it and Judge Moir had correctly refused DK permission to appeal District Judge Howard's order.

(9) Judge Moir's order

125. Hearing and decision not rolled up. The transcript reveals that Judge Moir, just before she reserved judgment, informed the parties that she was going to decide the two applications, for permission and to commit, but that she would not also decide the appeal if she granted permission. This came as a surprise to DK who had argued his entire application on the basis that the hearing was a rolled up permission and appeal hearing. This is clear from this exchange with the judge where DK stated:

"I was under the impression that you were hearing the permission and the appeal together."

It is also clear that the defendant's counsel approached the hearing on the basis that it was a rolled up hearing since he, too, had presented his submissions and had answered DK's submissions on that basis. Moreover, when making his costs submissions just before the judge reserved her judgment, both DK and counsel specifically addressed what the costs order should be on each of the possible conclusions that the judgment might reach including the possible decisions that would result from a rolled up decision allowing the permission application but then either allowing or dismissing the appeal.

126. Thus, although the judge's decision to convert the hearing from a rolled up hearing to a permission hearing was at variance with Judge Walton's previous direction, that decision did not prejudice DK in any way since the hearing had amounted to a full rehearing of his reinstatement application with the added advantage of his being able to rely on additional evidence and arguments that had not been considered by the district judge.
127. Judge Moir's decision not to treat the hearing as a rolled up hearing was justified since the earlier direction of Judge Walton that the hearing should be a rolled up hearing had been taken before DK had issued his application seeking permission to commit Mr Heath for contempt of court. Had permission been granted for the appeal to proceed, it would have been likely that permission would have also been granted to proceed with the contempt application. In those circumstances, both the appeal and the contempt application would, in fairness to all affected parties, have had to have been heard together. That would not have been possible unless the appeal was decoupled from the permission hearing and heard later with the contempt hearing since the contempt permission application had not been rolled up with the possible contempt hearing.
128. DK subsequently expressed the view that the course adopted by Judge Moir was greatly prejudicial to him because, by treating the application solely as a permission application and then in refusing him permission to appeal, the judge had deprived him of the opportunity of applying to the Court of Appeal for permission to advance a second appeal in the Court of Appeal. He contended that, had Judge Moir granted him permission to appeal and then, in the same order, dismissed the appeal, he could have applied to the Court of Appeal for permission to bring a second appeal. However, DK was caused no unfairness or injustice by Judge Moir's decision. This is because the judgment of Judge Moir showed that she had considered all aspects of the potential appeal and had reached the conclusion that the appeal was not merely one that had no real prospects of success but was hopeless. Thus, even if she had given a rolled up decision covering both the permission application and the appeal itself, she would have made the same order as she in fact made, and would have dismissed the permission application and would have made no order on the appeal.
129. Costs, permission to appeal and a stay. At the end of the hearing, and before she reserved judgment, Judge Moir is shown on the transcript of the hearing to have stated:

"What about the position with regard to costs? I will explain what I intend to do. It seems to me that I need to give a written judgment rather than having everybody back again. Clearly, the question of costs will arise. … Do you want to deal with the issue of costs or do you feel that the position is complicated, or do you just want me to deal with costs in the usual way in a written judgment?"

Counsel for Canon then submitted:

"Obviously, if both applications fail, then we would obviously be seeking our costs of those applications. … given the manner in which the applications have been pursued, and the allegations made in support of them, it would be appropriate for costs to be assessed on the indemnity basis if we are successful. But the order of principle that I would seek, therefore, would be for DK to pay the defendant's costs of the applications, to be assessed on the indemnity basis if not agreed with, as the District Judge did perhaps, a provision for payment on account of an appropriate sum. …if DK is successful in his application for permission to appeal, then if there is to be a further hearing then we submit that obviously the costs of the application for permission should be costs in the appeal."

DK then submitted:

"… I would like to resist … the proposal that [counsel] has put forward that, in effect, the costs should be added to the costs of the trial if it goes ahead. Essentially, the reason that this appeal has been necessary is the insistence by the defence that what should have been a straightforward request for reinstatement of the case, and allow it to go through the natural process of the law, has led to these huge complications and this escalation of costs on both sides. Certainly, your Honour, I would hope that the costs of the appeal could be quantified and defined as a separate matter for the trial costs."

In her judgment, Judge Moir ruled as follows as to the costs:

"I turn to the issue of costs. The previous costs order made by the district judge on 19 November 2002 was not to be enforced pending the hearing of the application for permission to appeal. That application has now been determined, and therefore the suspension lifted. As for the costs of the hearing before me, I asked counsel on behalf of the defendant and the claimant to deal with the issue of costs so that it would be unnecessary for the parties to attend when the judgment is handed down, so that further costs need not be expended. I see no reason to depart from the general rule that the unsuccessful party, namely DK, should pay the costs of the successful party, the defendant. I am asked to order costs on an indemnity basis, but having considered the matter with some care, I decline to do so. I will order costs on the standard basis to be subject to a detailed assessment."

130. Thus, it can be seen that the judge had stated that she would deal with costs in her reserved judgment and had allowed both DK and Canon's counsel to make their respective costs submissions on each possible outcome before she reserved judgment. Both took the opportunity to make their costs submissions and there could have been no conceivable basis for DK's subsequently contention, after the judgment had been handed down and the order had been perfected, that Judge Moir had denied him the opportunity of advancing costs submissions or of his being prejudiced by the judge's decision to hear all relevant arguments on costs before she reserved judgment.
131. Judge Moir's order. The order entered by the court following the handing down of Judge Moir's judgment, which I shall refer to hereafter as "Judge Moir's order" was made on, and should have been dated, dated 11 June 2003 but it was dated, and has since remained dated, as 18 June 2003^[23]. This error had no significance and it caused DK no prejudice. Judge Moir's order, unusually, went through four versions, dated 18 June 2003, 4 July 2003, 27 January 2004 and 23 April 2004. The changes were described in each order as being amendments albeit that these amendments arose from the use of the slip rule and of the inherent power of the court^[24]. The first two versions of Judge Moir's order omitted any reference to her decision on costs. Before considering whether these various versions of the order were made irregularly and without jurisdiction as DK still contends, it is necessary to consider the exchanges between DK and the court in the weeks following the issue of the first version of that order, the hearing before District Judge Powell on 27 January 2004 and its resulting orders, the procedural directions orders of Judge Walton dated 13 February 2004 and 3 March 2004 relating to DK's appeal from those orders and the order and the judgment of Judge Walton resulting from the hearing of that appeal dated 23 April 2004.

(10) Immediate aftermath of handing down of judgment

132. Immediate aftermath. DK was very dissatisfied by Judge Moir's judgment which he stated in his amended grounds to be the one which;

"… initiated all the subsequent difficulties in the case which [I] believe made it subject to judicial review."

He considered that both the reinstatement decision of District Judge Powell and the permission decision of Judge Moir were wrong in principle, were based on erroneous reasoning and were unjust. He was particularly aggrieved that Judge Moir's permission decision refused him permission to appeal rather granted him permission to appeal and then to dismissed his appeal since this had, he contended, deprived him of the opportunity of a second appeal in the Court of Appeal^[25]. He was also aggrieved with District Judge Howard's reinstatement decision which he considered to be unfair, biased and erroneous. He therefore decided, soon after he received Judge Moir's handed down judgment, to seek judicial review of Judge Moir's refusal decision. He was not legally advised and he believed that he could not apply for judicial review until Judge Moir's order had been amended by the inclusion of a provision setting out Judge Moir's decision that he should pay Canon's assessed costs of the permission hearing. His reasoning appears to have been that he would not be allowed by the Administrative Court to seek judicial review of Judge Moir's permission decision until the entirety of her decision, including the separate decision as to the costs of the permission hearing and the assessment of those costs, had been finalised and set out in a perfected order^[26].

133. DK's intention to apply for permission to appeal. DK also decided to seek permission to appeal Judge Moir's costs decision since an appeal of that part of her overall decision was not precluded by the order refusing permission to appeal the district judge's order. DK was particularly aggrieved that he had been ordered to pay Canon's assessed costs of the permission hearing since he considered that it should not have been necessary for the hearing of his permission application to have been so involved and protracted and that all that should have been necessary was for there to have been a brief oral hearing at which Canon would not have been represented and permission to appeal would have been granted. Moreover, as he saw it, the costs order had been made without his having had an opportunity to address the judge on that order.
134. None of these contentions had any validity. DK had had a full opportunity of addressing the issue of costs. This is clear from the extracts of the transcript of the hearing that I have already set out^[27]. When addressing Judge Moir, DK had made no reference to his complaint that the costs that he might have to pay Canon were excessive due to procedural errors which had allowed what should have been a short simple hearing to have been a complex hearing that had taken two days. Moreover, even if he had taken the opportunity to present such an argument to Judge Moir before she reserved judgment, it would have been bound to fail. This is because the hearing had previously been ordered by Judge Walton to be a rolled up hearing and its length was almost entirely due to the way in which DK had chosen to argue it coupled with his having issued his contempt application which inevitably had to be heard with the permission application. During the hearing of what were, in reality, hopeless applications, DK took every conceivable point available to him and, in doing so, explored the documents at unnecessary length. He also pursued a repetitive series of ill-judged complaints of maladministration by the Gateshead County Court, all of which Judge Moir had dismissed.
135. In those circumstances, the costs order made by Judge Moir was inevitable, fair and unchallengeable and was one which DK had had a full opportunity to make submissions about. It was also one which, had he mounted an appeal, would have been bound to fail both because it would have had no prospects of success and because he would never have obtained permission to bring it in the first place.
136. DK was, however, entitled to apply for permission to appeal but he could not issue that application until the court had issued a perfected order that gave effect to Judge Moir's costs order. Unfortunately, the first two versions of the Moir order made following the handing down of her judgment did not include any reference to her costs decision even though this had been set out in her judgment.
137. DK's attempts to correct Judge Moir's order. DK attempted without success in the weeks following the handing down of Judge Moir's judgment to secure the correction of the Moir order by the addition of a provision relating to his obligation to pay Canon's assessed costs. He wrote to the court in an attempt to obtain a corrected order that incorporated both Judge Moir's costs decision and an order staying the enforcement of District Judge Howard's interim costs order pending his intended judicial review. As soon as he had learnt that the court was not prepared to correct the order, instead of writing a series of inconclusive and vituperative letters to the court, he should have issued an application for a hearing before Judge Moir seeking a correction of the order with a request that the court should serve it on Canon to enable it to be represented at that hearing^[28]. DK claims to have issued such an application which he contended the court had refused to issue. However, he produced neither a copy of the application notice that he stated that he had asked the court to issue nor copies of his correspondence with the court relating to the court's alleged refusal to issue it. Moreover, there is no record of such an application on the court file. There is, therefore, no evidence of that such an application was ever drafted or sent to the court or of the court refusing to issue and serve one.
138. Instead, according to DK's witness statement dated 21 January 2005, he took these steps:

"8. Although the judgment itself contains a reference to costs, no formal order was made by Judge Moir relating to costs. This denied the claimant the right to challenge that part of judgment, there being no related order.

9. The claimant subsequently made an application to the Court for HHJ Moir's order to be modified to include reference to costs. This would allow the whole costs issue to be examined by the court and would reflect the actual judgment of HHJ Moir.

10. HHH Walton and HHJ Moir both refused to perfect the order of HHJ Moir, despite requests made on the claimant's behalf by Court staff to do so. The application was not processed.

11. As a result of this refusal, the claimant wrote to the Court Service Customer Services Department (CSCSD) to complain about the failure of the Court to process the application.

12. The CSCSD wrote to the Court seeking clarification. The Court sent HHJ Walton's notes on the case to CSCSD. The claimant was refused a copy. The CSCSD declined to assist the claimant with his complaint throughout the period from September 2003 to January 2004. Repeated requests for a copy of HHJ Walton's notes were refused."

139. This correspondence and these complaints were referred to by Judge Walton at the beginning of his judgment delivered on 23 April 2004 in the appeal brought by DK from the correcting order dated 27 January 2004 made by District Judge Powell. Judge Walton said this about these exchanges:

"1. Matters cannot be regarded as accidental slips because for many months after the hearing before Her Honour Judge Moir he was pressing for the order to be corrected in the very ways in which the District Judge eventually intervened, and encountered some resistance from the court service and Her Honour Judge Moir. It has not been a part of this hearing to delve in detail in to that history. I am aware of it and it does not seem to me it would be helpful to go through it in detail. Suffice it to say it is only proper to record that it has left DK feeling he has received poor service in relation to the matters which he has sought to raise, although equally it has occurred to me at times that there has been the possibility of misunderstanding exactly what he was trying to do^[29]. As I say, it is no part of the present hearing to come to a conclusion on that, and I simply note in passing what has taken place.

2. … [DK complained] that he was prevented from opposing what the District Judge was intending to do [in correcting the order to add Judge Moir's costs order]. So far as that is concerned, it does seem to me that there is something of a non sequitur in DK's reasoning. In the first instance he says that for many months he had been pressing for Her Honour Judge Moir to do precisely what in due course the District Judge was to do."

140. Thus, as found by Judge Walton, DK made a series of complaints to the court in the period between June 2003 and 27 January 2004 which involved him in trying to persuade the court to reissue the order dated 18 June 2000 with the costs order made by Judge Moir and a stay order added. These complaints did not achieve his desired intention because an order could only have been amended after the court had issued and served an application seeking such an order, the application had been served on WB, a judge had then considered and approved the application and a formal order giving effect to that decision had then been issued. Thus, no amendment of the order of the kind sought by DK was made at that stage.

(11) Assessment of costs – District Judge Powell's hearing and order

141. Assessment of costs – initial steps. Meanwhile, WB was moving forward both to enforce the interim costs order made by District Judge Howard and to obtain an assessment hearing to assess the costs of the reinstatement and permission hearings that DK had been ordered to pay Canon. On 16 July 2003, WB initiated detailed assessment proceedings. DK then filed points of dispute on 6 September 2003 and WB filed replies on 24 September 2003. WB then filed a request for an assessment hearing on 6 October 2003 and an application for that hearing on 29 October 2003. Finally, on 18 November 2003, WB issued Canon's Part 8 enforcement seeking an order for the sale of DK's house which had previously been charged with the interim costs order.
142. First assessment hearing – 27 January 2004. The return date for the assessment hearing, which I shall hereafter refer to as the "assessment hearing" was 27 January 2004. DK's position at the outset of that hearing was that he had tried without success to persuade Judge Moir and the Newcastle Combined Court to amend Judge Moir's order of 18 June 2003, that he wanted to seek permission to appeal her costs direction contained in her judgment, that he wanted to seek judicial review of the entire decision and that he wanted the assessment hearing adjourned until after the conclusion of both his judicial review and his costs appeal. District Judge Powell considered that the assessment of the costs that Judge Moir had ordered to be paid should be assessed at the same time as the assessment of the costs of the reinstatement application heard by District Judge Howard. However, that joint assessment of costs had to await the conclusion of DK's permission application and that could not be made until the order of 18 June 2003 was amended. He therefore adjourned the assessment hearing to a date to be advised in due course when both costs orders could be assessed together.
143. Orders of District Judge Powell dated 27 January 2004. District Judge Powell immediately after the hearing drew up an order and arranged for it to be issued and served on the parties. The order, dated 27 January 2004 and served on 28 January 2004, which I shall hereafter refer to as the "amendment order" directed that Judge Moir's order should be amended by the addition of a direction that the stay on the enforcement of the interim costs order should be lifted and a further direction giving effect to Judge Moir's costs direction. Judge Moir's order, as re-issued by District Judge Powell's amendment order provided as follows:

"The Order dated 18 June 2003 is further amended to include the following paragraphs:

a. The restriction on the ability of the Defendant to enforce Paragraph 2 of the Order of the District Judge dated 19 November 2002 pending the hearing of the application for permission to appeal be and is hereby lifted.

b. The Claimant shall pay the Defendant's costs of this application on the standard basis subject to a detailed assessment.

Dated 27 January 2004."

The second order issued by District Judge Powell was issued on 11 February 2004 and it provided for the adjournment of the costs assessment hearing and directed that it was to be restored upon the application of the defendant.

144. The amendment order incensed DK because he considered that District Judge Powell had made it clear at the hearing that he could not amend Judge Moir's order. He has always subsequently contended that the district judge acted without jurisdiction in making this amendment order and that he was unfairly deprived of the opportunity of opposing it. His opposition to the amendment relating to the costs of the permission hearing was a complete volte face. He has never explained why his adamant insistence, until 27 January 2004, that the permission order should be amended in the way that it was by District Judge Powell so as to include Judge Moir's costs order was instantaneously transformed into vehement opposition to the order being amended in that way. The explanation seems to be that his change of stance occurred because he had concluded at the hearing on 27 January 2004 that he had no prospect of successfully appealing Judge Moir's costs order. He therefore decided to change his tactics and, instead, to expand his intended judicial review so that it included Judge Moir's costs decision within its scope.
145. The hearing before District Judge Powell. DK not only complained that District Judge Powell had issued an amendment order following the hearing correcting Judge Moir's order, he also complained bitterly that it had been issued as a result of a what he considered to be a the district judge's serious procedural irregularity. DK contended that the district judge had stated that the absence of a costs order prevented him from undertaking an assessment of the costs of the permission hearing and had then stated that he had no power to amend the order and that only Judge Moir could do that. However, to the anger of DK, the district judge after the hearing issued an order amending Judge Moir's order by adding a costs order to it. He contended that the district judge lacked the jurisdiction to make such an order and that only Judge Moir could have been made it. Moreover, by stating that he would not make the order, and then in issuing it after the hearing, the district judge had deprived him of the opportunity of arguing that that course should not be followed.
146. DK greatly expanded his objection to the order once he had obtained a transcript of the hearing. He then made the remarkable allegation that a passage in the tape from which the transcript had been taken had been deliberately edited out of the tape by District Judge Powell so that the transcript contained no passage in which the district judge could be seen to have stated that only Judge Moir could amend the order and that the district judge would not amend the order himself.
147. A careful reading of the transcript in its allegedly edited form, however, shows that DK's contentions are misguided. A summary of what took place is as follows:

(1) The hearing opened with DK applying for an adjournment because of his contention that the detailed assessment of costs should await the conclusion of his threatened judicial review. He was asked by the district judge during this part of his opening whether he had appealed the costs order that Judge Moir had made at the end of her judgment. He replied that he wished to appeal that order but had been unable to proceed with that appeal because of the defect in Judge Moir's order. He also raised with the district judge a further failure, as he saw it, of Judge Moir's order in that it had not extended the temporary stay on the enforcement of the interim costs order that had been imposed by Judge Walton.

(2) The district judge then made a series of statements, the most pertinent being these^[30]:

"So therefore there is clearly from the judgment [of Judge Moir] an order also for the payment of the costs of the appeal by DK."

"DK, I am inclined to agree with you in connection with the question of the appeal hearing. There isn't set in the order an order that you pay the costs of the appeal. There should be. The order should therefore be further amended to make it clear that that's so."

"And [DK] makes the point that he can't appeal against the costs order

until there's an order."

"And I think that what needs to happen is that the judgement from Judge Moir needs to be perfected^[31], certainly in relation to the costs, and needs to be served on DK. He can then consider whether he needs to apply for leave to appeal."

"Until such time that the order is perfected by the court, time doesn't run for the purposes of giving any notice of appeal. So, at the moment it seems to me without further research that DK could still apply for permission to appeal Judge Moir's decision, could he not?"

"DJ Powell. Anyway, I'll adjourn, I'll adjourn the matter.

DK. Thank you sir.

DJ Powell. To a date to be advised in due course."

148. These passages show that District Judge Powell did not state that only Judge Moir could amend her order nor that he would not amend it himself. It is clear from these passages that the district judge, with the consent of DK, was adjourning the costs assessment hearing so that Judge Moir's order could be amended by the addition of her costs order. This would allow DK to apply for permission to appeal that costs order and it would also allow District Judge Powell to undertake the detailed assessment of the costs that DK had been ordered by Judge Moir to pay Canon. Moreover, the district judge clearly indicated that such an amendment was permissible and that he was adjourning the costs assessment hearing for that to happen. Furthermore, he made it clear that "the court" that would make the amendment order. Since "the court" in that context is a reference to any judge or district judge of the Newcastle Combined Court, by necessary implication the district judge was indicating that he would make that amendment himself without the need for any further intervention or application from DK or Canon.
149. I deal below with why this order was regular and why District Judge Powell had the jurisdiction to issue it^[32].

(12) DK's permission application and appeal from District Judge Powell's order

150. Notice of appeal. When DK was served with the order was, he immediately issued a notice of appeal dated 28 January 2004 seeking to set it aside. The grounds of appeal were stated to be:

"The order para (4) was made to allow the claimant time to go through the appeal process before enforcement was to be made. The correct process of seeking a judicial review is effectively an extension of that process and hence maintenance of the lifting of the enforcement order should be allowed.

The order para (5) was made on the basis that there were no avenues of appeal and the costs were therefore the subject of assessment. The liability to pay the defendant's costs was challenged and are to be referred to the Judicial Review Team of the Royal Courts of Justice."

151. This notice of appeal was the first time that DK had indicated that he did not want Judge Moir's order amended by the insertion of her costs direction and that he did not wish to appeal the costs order but wanted instead to mount an attack on the costs direction contained in Judge Moir's judgment by way of judicial review.
152. DK's misconceived objection to District Judge Powell's order. DK has subsequently challenged the validity, fairness and correctness of the order made by District Judge Powell. His contentions and the answers to them are as follows:

(1) District Judge Powell had no jurisdiction to make the amending order. DK contended that only Judge Moir or, possibly, another circuit judge, could correct or amend Judge Moir's order and that it was not within a district judge's jurisdiction to amend an order made at the level of a circuit judge. However, there is no rule of law which precludes the exercise by a district judge of the power conferred by the slip rule to correct an order made by or following a decision of a circuit judge assuming that the circumstances exist which make the use of the slip rule lawful and appropriate in that particular case. This is because CPR 40.12 states that "the court" (and not "the judge making the order") may at any time correct an accidental slip or omission in an order. In this context, "the court" means any circuit or district judge (or any deputy judge or deputy district judge) of the Newcastle Combined Court. It is normally good practice for the judge who made the order to be the judge who is asked to amend it when necessary under the slip rule but where there are, as here, good reasons for another judge of the court to make a slip rule order, that other judge has the power to make it instead.

(2) In this case, the judge making the slip rule amendment of a circuit judge's order was the district judge assigned to the costs assessment hearing that the circuit judge had ordered to take place. This assessment hearing could not proceed until the order was amended. The district judge had made it clear, when adjourning the assessment hearing to enable the order to be amended, that it would be the court that would be making the amendment and both parties appeared to agree that this course should be adopted. There were, therefore, very good reasons for the district judge to make the amending order himself immediately after he had adjourned the assessment hearing rather than for him to delay the assessment process (and DK's proposed appeal of the costs order) by arranging for Judge Moir to make the order on a later date. This is what Judge Walton decided when hearing DK's appeal from District Judge Powell's order^[33].

(3) The order was made in contradiction of the procedure that District Judge Powell had announced at the hearing. District Judge Powell did not state, as DK contended, that the application to amend the order under the slip rule would be placed before Judge Moir nor that he had no jurisdiction to correct the order. In fact, if the extracts from the transcript that I have quoted are carefully considered, it can be seen that he said that "the court" would correct the order, meaning in context that he would. The fact that DK misunderstood the expression "the court" to mean "Judge Moir" cannot alter the fact that the district judge gave the parties full and proper notice that he was going to amend the order himself under the slip rule following the hearing.

(4) The correction of the order by District Judge Powell precluded an appeal of the costs order. DK submitted as follows:

"Unless there are unusual and unavoidable circumstances, it is not within a district judge's jurisdiction to amend an order made at the level of circuit judge. This action precluded the claimant from appealing the costs order at the level above the circuit judge.^[34]"

DK is incorrect in his summary of the possible avenue of appeal from Judge Moir's costs order. That order, once corrected, could have been the subject of a first appeal from Judge Moir to a High Court judge since it would have been an appeal from a costs decision which had been made by a circuit judge but was not a final decision. This was the position whoever corrected the original order of Judge Moir under the slip rule.

(5) DK appears to have thought that an appeal from the costs order and an appeal from the order correcting the costs order were both part and parcel of the same appeal. However, they were two separate appeals that would need to been heard separately and sequentially. There were the following possibilities:

(a) If the amendment had been made by a district judge, the first appeal would have had to have been from the district judge's amendment order, and would have had to have been to a circuit judge if permission to appeal had been granted. The second appeal, based on the order in whatever form it was following the conclusion of the first appeal, would have had to have been to a judge of the High Court if permission to appeal had been granted.

(b) If Judge Moir or any other circuit judge had amended her costs order, the first appeal would have had to have been to a judge of the High Court if permission to appeal had been granted. The second appeal based on the order in whatever form it was following the conclusion of the first appeal would have had to have been to a judge of the High Court if permission to appeal had been granted. Both appeals, and both permission applications, could have been heard together by the same judge of the High Court.

153. It follows that there is no substance in the complaints made by DK about District Judge Powell's order. The district judge had the power to amend Judge Moir's order and the order, in its amended form could then have been the subject of an application for permission to appeal to the High Court. In essence, the same result leading to the same appeal process would have resulted from the amendment order whether it had been issued by Judge Moir, Judge Walton, any other circuit judge of the Newcastle Combined Court, District Judge Powell or any other district judge of that court.

(13) Appeal from District Judge Powell's order

154. DK's appeal. DK's appeal against District Judge Powell's order was in two parts. These were:

(1) Costs order correction. Judge Walton refused DK permission to appeal. He found as follows:

"… so far as the second order which the District Judge made, that is including the reference to costs, he was correcting what is obviously an accidental slip. And to that extent he was exercising his judgment in a way in which he was entitled to do. While the Practice Direction in Part 40 suggests that on an opposed application to correct an order, the matter should be if practicable referred to the judge whose order it is, there is no other guidance in the Rules to suggest that circuit judge orders have always to go to a circuit judge and that does not seem to me to correctly reflect the position. I have considered whether in this particular case the District Judge was wrong to do what he did in terms of the Practice Direction, and whether he should have referred the matter to Judge Moir, but in the circumstances I do not think that it was necessary for him to do so. The slip was a clear one and in a court where a judge like Her Honour Judge Moir is extremely busy it can take many months to find time for the matter to be mentioned to her. Bearing in mind also the fact that DK had been pressing for the court to do precisely what the District Judge was proposing to do, it seems to me in those circumstances he was entitled to take the step which he did, and to not follow the procedure which the Practice Direction recommended."

That conclusion of Judge Walton is impeccable.

(2) Stay correction. Judge Walton considered that it was possible that Judge Walton had deliberately omitted reference to the stay order being lifted from her order although she had made it clear in her reserved judgment that that stay order was no longer in place following the handing down of her reserved judgment. He therefore granted permission to appeal that part of the order and then allowed the appeal. Thus, that amendment of Judge Moir's order was set aside.

(14) Judge Moir's order dated 18 June 2003

155. Four versions. I will now summarise the four versions of Judge Moir's order and why each version was regularly issued and perfected. The four versions of Judge Moir's order dated 18 June 2003 were as follows:

(1) First version, 18 June 2003 read:

"(1) Permission to appeal be refused."

(2) First correction, 4 July 2003 read:

1. "Permission to appeal in respect of the decision of District Judge Howard on 19 November 2002 be refused.

2. Permission under Rule 32.14 to bring proceedings for contempt of Court against Mark Gregory Heath be refused.

3. Permission to appeal paragraph 2 of this order be refused."

(3) Second correction, 27 January 2004 read:

"The Order dated 18 June 2003 is further amended to include the following paragraphs:

4. The restriction on the ability of the Defendant to enforce Paragraph 2 of the Order of the District Judge dated 19 November 2002 pending the hearing of the application for permission to appeal is hereby lifted.

5. The Claimant shall pay the Defendant's costs of this application on the standard basis subject to a detailed assessment."

(4) Third correction, 23 April 2004 read:

1. "Permission to appeal in respect of the decision of District Judge Howard on 19 November 2002 be refused.

2. Permission under Rule 32.14 to bring proceedings for contempt of Court against Mark Gregory Heath be refused.

3. Permission to appeal paragraph 2 of this order be refused.

4. The Claimant shall pay the Defendant's costs of this application on the standard basis subject to a detailed assessment."

156. First version of Judge Moir's order – 18 June 2003. The order as originally issued contained no directions about the contempt application nor that DK should pay Canon's costs of the application for permission to appeal nor that that the stay on the enforcement of the interim costs order should be lifted even though all three of these orders had been provided for in Judge Moir's judgment when it was handed down. The order should never have been perfected in the form in which it was first issued.
157. First correction of Judge Moir's order – 4 July 2003. The court on its own initiative issued an amended order dated 4 July 2003 which added two further paragraphs dealing with the dismissal of DK's contempt application and refusing permission to appeal this dismissal. Both these matters had been dealt with and decided in Judge Moir's judgment. It is not now known who directed this change, why it was made on the court's initiative or why it was confined to these two matters and did not also include the addition of paragraphs relating to the costs of the permission hearing or to the lifting of the stay of enforcement proceedings. A judge, probably Judge Moir, must have approved the order and it is likely that it was initiated when the terms of the original order were drawn to her attention and she appreciated that the order made no reference to her decision in relation to the contempt application that she had decided.
158. The first newly added paragraph was made under the slip rule since the paragraph had been accidently omitted and the second paragraph, refusing permission to appeal the first direction, although not expressly referred to in the judgment, was clearly implied by this passage in her judgment:

"I take the considered view that this application was misconceived. … It is an attempt to manoeuvre around the order made by Judge Walton refusing to allow cross-examination of witnesses, which order has not been appealed.

I deprecate the use of this procedure in these circumstances to make very serious allegations in respect of the professional integrity and conduct of Mr Heath. It is ill-founded and … I am satisfied that Mr Heath has acted professionally and competently. I refuse permission to bring contempt proceedings.^[35]"

This order was, therefore, added to enable the order to give effect to the court's true intentions^[36]. The amendment that was made to the order was clearly both regular and valid.

159. Second correction of Judge Moir's order – 27 January 2004. District Judge Powell was correct and acting within his jurisdiction to amend the order to add the costs provision originally provided for by Judge Moir in her reserved judgment even though he was amending the order of a circuit judge and had not made the original order himself. That correction was both regular and valid and was so held to be by Judge Walton. This amendment was made by "the court" under the slip rule.
160. However, the district judge was not acting within his jurisdiction to add the stay-lifting provision. This was because it did not amount to the correction of an accidental omission nor was it necessary to give effect to Judge Moir's intentions since she had not given a direction that the stay should be lifted in her reserved judgment and there was no indication that she had intended such a direction to be made in the order consequent upon her judgment^[37]. However, this particular provision was short-lived and was removed by Judge Walton when allowing an appeal from that part of the district judge's order.
161. Third correction of Judge Moir's order – 23 April 2004. This order confirmed that part of District Judge Powell's order that had added Judge Moir's costs direction to her order and reversed his decision to add the stay order to that order.
162. Conclusion – Corrections and amendments of Judge Moir's order. If DK had wanted to challenge Judge Moir's costs order by way of an application for permission to appeal to the High Court, he could and should have done so by serving an application for permission to appeal no later than twenty one days after 23 April 2004 that challenged the costs decision of 18 June 2003. Equally, if he wished to challenge it by way of a judicial review seeking a judicial review of the part of the order of 18 June 2003 refusing permission to appeal the reinstatement order promptly after 23 April 2004 and no later than three months thereafter^[38]. It is to be noted that Judge Walton advised DK to start his judicial review proceedings "quickly" at the hearing on 23 April 2004. Instead, DK did not start his judicial review proceedings until 7 November 2008.

(15) Enforcement claim - NE311047

163. On 19 June 2003, Canon obtained an interim charging order on DK's house for the debt of £11,000 and, on 20 June 2003, it served DK with a statutory demand for payment of that debt. On 18 September 2003, Canon obtained a final charging order for that sum over DK's house. DK did not attend that hearing and, instead, he sent written submissions to the court which he subsequently complained had not been properly considered since the district judge made the final charging order despite these submissions. However, DK did not seek to appeal the order that was made and Judge Walton, when subsequently refusing DK's application for a transcript of that hearing, refused that application on the basis that there were no good reasons for ordering one since no irregularity had been shown to have occurred. It is clear that there never was any basis for any complaint about the hearing on 18 September 2003 nor about the consequent final charging order.
164. On 10 November 2003, Canon issued the enforcement claim as a Part 8 claim, number NE311047, in the Newcastle Combined Court seeking to enforce the interim payment order by means of an order for the sale of DK's house. Canon had to issue a fresh Part 8 claim since the CPR requires that an application for an order for sale to enforce charging orders that have been made in a claim should be made in a fresh claim^[39]. The charging orders are, however, made by application in the original claim and in the same court as the original claim^[40]. Thus, in these claims, the relevant interim and final charging orders were made on, respectively, 19 June and 13 September 2003 in the principal claim and the claim for an order for sale of the property charged was made in the enforcement claim started on 10 November 2003.
165. Although procedurally, there were two claims arising out of DK's claim for damages from the time that the enforcement claim was started, they were intimately related to each other and formed part of the same proceedings. They were only brought separately because, for procedural reasons, an order for sale can only be applied for and made in a stand-alone Part 8 claim.
166. On 26 August 2004, Deputy District Judge Smart made an order for sale. DK had filed an application both seeking an adjournment of and opposing the hearing shortly before the hearing. In it, he submitted that it was not proper to deal with the costs ordered on an interim basis, where detailed assessment of all costs was outstanding, that there was still a stay in force in relation to the enforcement of the interim costs order and that he was intending to seek a judicial review of Judge Moir's costs order. The deputy district judge refused the application to adjourn the hearing and granted the order for sale. She ruled that there was no evidence that DK was on the point of issuing a judicial review application, that there was no stay still in force that precluded the making of an enforcement order in the form of an order for sale and that there was no basis for contending that it was premature to enforce an interim costs order when a detailed assessment of costs was to take place but had not yet taken place. This ruling of the deputy district judge was the subject of an appeal at a rolled up hearing that was heard by Judge Walton on 2 December 2004 when he granted permission to appeal but then dismissed the appeal^[41] and a further application for permission to appeal to the Court of Appeal which was dismissed by the Court of Appeal on 6 November 2006^[42]. In dismissing the appeal, Judge Walton expressly affirmed the reasons given by the deputy district judge for dismissing each of DK's arguments and those reasons were themselves affirmed by the Court of Appeal in refusing DK's application for permission to appeal the order of Judge Walton.

(16) Stay on enforcement

167. Stay on Enforcement. DK had submitted to the deputy district judge that the stay on the enforcement of the interim costs order originally imposed by Judge Walton remained in force so that she should dismiss the application for an order for sale. This submission was misconceived but, in order to see why, it is necessary to consider the somewhat lengthy history of the stay issue. I will summarise the successive steps in this history as follows:

(1) 19 November 2002. District Judge Howard directed as part of his reinstatement decision:

"2. In the interim [pending the detailed assessment of Canon's costs] DK shall pay Canon the sum of £11,000 on account of costs by Friday 6 December 2002."

(2) 13 December 2002. Judge Walton, as part of his case management directions for DK's appeal from the reinstatement decision, directed that:

"No step shall be taken to enforce paragraph 2 of the order of the District Judge dated 19 November 2002 pending the hearing of the appeal."

(3) 18 June 2003. Judge Moir handed down her reserved judgment refusing permission to appeal. The first two sentences of the final paragraph provided:

"I turn to the issue of costs. The previous costs order made by the District Judge on 19 November 2002 was not to be enforced pending the hearing of the application for permission to appeal. That application has now been determined, and therefore the suspension is lifted."

(4) The first version of the order dated 18 June 2003 to give effect to the appeal was issued. The order provided:

"1. Permission to appeal in respect of the decision of District Judge Howard on 19 November 2002 is refused."

There was therefore no reference to the stay imposed by Judge Walton in the order. There did not need to be any reference since, as Judge Moir had already pointed out in her judgment, the suspension had been lifted automatically by the dismissal of the application.

(5) 27 January 2004. At the first detailed assessment of costs hearing, DK contended that the stay had not been lifted by Judge Moir's dismissal order because there had been no order for costs included in the order dated 18 June 2003 and because he was intending to apply for judicial review of the entire order once the order was amended to include Judge Moir's costs order. That contention was dismissed by the district judge as follows:

"DJ Powell … [looking at the transcript of Judge Moir's judgment] it seems to be clear to me that that stay on enforcement of the payment of £11,000 on account of costs has been lifted.

DK Well, that is my contention, sir, that it has no ... . I agree with you, sir, that there is, there is this issue here where it would appear that that could be argued. My argument is …

DJ Powell Well, it's beyond argument.

DK Well …

DJ Powell It's clear from the judgment [that the stay has been lifted].

DK Well …

DJ Powell The transcript of the judgment.

DK … yes, but the judgment is …

DJ Powell Signed by the judge."

(6) 27 January 2004. District Judge Powell, when reissuing Judge Moir's order under the slip rule, added the following order:

"4. The restriction on the ability of Canon to enforce paragraph 2 of the order of the District Judge dated 19 November 2002 pending the hearing of the application for permission to appeal be and is hereby lifted."

This paragraph was added to confirm that there was no stay in force since DK had insisted, notwithstanding the hopelessness of this contention, that the stay on enforcement survived the dismissal of his permission application.

(7) 13 February 2004. Judge Walton, as part of his case management directions for DK's appeal that he had made against District Judge Powell's order, directed that:

"4 Canon shall not enforce the order dated 27 January 2004 before further order in the appeal."

This Walton order imposed a stay on the effect of paragraph 4 of Judge Moir's order, a paragraph inserted into the Moir order by the order of District Judge Powell. The Walton order did not, however, reimpose a stay on enforcement since, even without paragraph 4, there was no stay in place since this had previously been automatically lifted once Judge Moir's hearing had been concluded. Thus, the Walton order had no substance since it purported to impose a stay on the effect of the Powell order by reimposing the non-existent stay that the Powell order had purported to lift.

(8) 23 April 2004. Judge Walton heard the rolled up appeal from District Judge Powell's order. He first granted DK permission to appeal in relation to that part of the Powell order that had added paragraph 4 to the Moir order, he then allowed the appeal and he finally directed that the Moir order should be redrawn as amended by him. The effect of this second Walton order was to leave the position as it had been before District Judge Powell before issued the Powell order, namely that there was no stay on enforcement in place. This was the view of Judge Walton as can be seen from this passage in his judgment:

"3. … The event terminating the stay, or upon which the stay would be terminated, having occurred – that is, the hearing of the appeal – the stay would so far as I can see automatically lift[ed]. And since it automatically lifted it was not necessary for Her Honour Judge Moir to say anything about it at all."

Judge Walton allowed the appeal on this issue because he was not satisfied that it was a correct use of the slip rule to add the relevant paragraph since Judge Moir might have decided that it was not necessary to include that paragraph since the stay had been automatically lifted. He was, however, clearly of the view as to the underlying position which was that there was no stay in force from the moment that it had been automatically lifted on 18 June 2003.

(9) 28 August 2004. Deputy District Judge Smart dismissed the contention advanced by DK that she should not make an order for sale to enforce the interim costs order because the stay on enforcement remained in place. The deputy district judge took the view that there was no stay still in force and, in consequence, made the order for sale.

(10) 2 December 2004. Judge Walton, in giving judgement dismissing DK's appeal from the order of Deputy District Judge Smart's order, granted DK permission to appeal because the deputy district judge's view that no stay was in force appeared to be at odds with the view of a different district judge in another application being made by DK so that there was a possible conflict of views about the same issue between two different district judges^[43]. However, Judge Walton dismissed the appeal and upheld Deputy District Judge Smart's order dismissing DK's stay submission. Judge Walton said:

"7. … DK's principal concern: that is, his argument that a stay on the enforcement of the interim costs order somehow survived the hearing before Judge Moir. I am bound to say I reject that submission. Her judgment deals, in terms, with the stayed costs. It makes it clear that the suspension in enforcement was removed. In any event, that was the natural consequence of the appeal being determined."

Judge Walton went on to find that DK's delay in initiating his threatened judicial review showed that he had no genuine intention to seek judicial review. As a result, Judge Walton refused to impose a fresh stay after DK had applied for one following Judge Walton's decision that there was no stay currently in place.

(11) 6 November 2006. Rix LJ, sitting with Moses LJ, at the hearing of DK's renewed application for permission to appeal Judge Walton's order of 2 December 2004, refused permission and, in doing so, stated:

"5. With that refusal of permission to appeal [by Judge Moir] from the interim costs order, the stay of enforcement of that order which had been granted by HHJ Walton in December 2002 expired. It did so without any order having to be made to that effect but in any event HHJ Walton confirmed that that was so in his judgment of 2 December 2004."

168. It is clear, therefore, that the stay on the enforcement of the interim costs order had been automatically lifted when Judge Moir dismissed the application for permission to appeal the reinstatement decision. DK was informed of this by Judge Moir in her judgment of 18 June 2003, by District Judge Powell during the hearing on 27 January 2004, by Judge Walton in his judgments of 23 April 2004 and 2 December 2004, by Deputy District Judge Smart during the hearing on 28 August 2004 and by Rix LJ in giving the judgment of the two-man court in the Court of Appeal on 6 November 2006. His grounds documents showed that he still did not accept that the stay had been lifted automatically on 18 June 2003 despite the views of no fewer than five different judges in six different judgments.
169. Thus, DK's complaints that the order for sale was made at a time when the stay on the enforcement of the interim costs order was still in place were and remain totally misplaced. It is clear that no injustice occurred when enforcement of the interim costs order was carried forward by the order for sale that was made on 28 August 2004. This extraordinary catalogue of adverse judgments and rulings provides a clear illustration of DK's stubborn refusal to desist with what was and remains a hopeless argument pursued in an attempt to avoid the inevitable consequences of adverse costs orders imposed on him because of the vexatious claims that he insisted on pursuing.

(17) Tape tampering allegations

170. DK's suspicions of tape tampering by the district judge. District Judge Powell's order correcting the order of Judge Moir made DK very angry, albeit without any reason for that anger. This anger was apparently caused by his erroneously thinking that the district judge's slip rule order should have been made by Judge Moir or by another circuit judge in the Newcastle Combined Court if Judge Moir was unavailable or unwilling to make an order. He apparently considered that, had a circuit judge had corrected the order, he could then have appealed Judge Moir's costs order to a "higher court", which he appears to have thought was the Court of Appeal. Instead, so he also thought, he could only appeal the corrected costs order to a circuit judge since it had become a district judge's order once it had been corrected by a district judge. He also thought that he would have a good prospect of succeeding in his costs appeal in the Court of Appeal but that the same appeal would fail if it was heard by a circuit judge in the Newcastle Combined Court because any judge hearing it would inevitably be biased against him.
171. Errors underlying DK's thinking. DK made seven errors in thinking in this way:

(1) Contrary to his view that the district judge did not have the jurisdiction to correct Judge Moir's order, it was within the power of any judge in the county court, including a district judge, to exercise the power of correcting that county court order so long as the correction was within the scope of what was permitted by the slip rule^[44].

(2) Contrary to his view that the costs order, once it had been corrected by a district judge became a district judge's costs order, the order once corrected by a district judge remained the order of Judge Moir^[45].

(3) Contrary to his view that only one costs decision was involved, there were two separate decisions that were involved^[46].

(4) Contrary to his view that there could only be one appeal in relation to the costs order, there was a possibility for him to appeal each of the two separate decisions in separate, successive appeals^[47].

(5) Contrary to his view that an appeal from Judge Moir's costs order lay to the Court of Appeal, if that order had been corrected by a circuit but not by a district judge, any appeal lay, with permission, to a judge of the High Court. Thus, the corrected costs order was open to the same rights of appeal as would have arisen had the corrected order been issued in the first place by Judge Moir or had it been corrected by Judge Moir or by any another circuit judge^[48].

(6) Contrary to his view that an appeal from Judge Moir's costs order lay to another circuit judge sitting in the Newcastle Combined Court if that order had been corrected by a district judge, any appeal lay, with permission, to a judge of the High Court^[49].

(7) Contrary to his view that he had a good prospect of upsetting Judge Moir's costs order if he had been able to proceed with an appeal, he had no arguable grounds of appeal and an application to the High Court for permission to appeal would have been rejected^[50].

172. DK's decision to appeal. DK, therefore, decided to appeal District Judge Powell's order on the grounds that it had been made without jurisdiction and had been irregularly obtained. He also decided to widen the scope of his proposed judicial review to encompass Judge Moir's costs decision and District Judge Powell's slip rule order. In order to prepare for these proposed challenges to these decisions, he applied for a copy of the transcript of District Judge Powell's hearing in mid-February 2004 which he received in early April 2004.
173. Inherent improbability of DK's suspicions. Having obtained the transcribed exchanges between the District Judge Powell and both himself and Canon's solicitor, DK formed the view that the transcript of the hearing that he was provided with had omitted vital statements that he believed that the district judge had made. This led him to conclude that those omissions had been caused by the tape having been doctored in order to edit out these exchanges so that they would no longer be on the tape when it was transcribed. That chain of reasoning led him to conclude that the tampering that he considered had occurred was the result of District Judge Powell tampering with the tape so as to deliberately edit these exchanges out in a way that would not be detected subsequently. He finally convinced himself that this bizarre criminal conduct by a district judge had been motivated by that judge's wish, on learning that the tape was to be transcribed, to cover up his error that would otherwise be revealed to anyone reading the transcript. The error that he wanted to cover up was his having assured the parties that he would not make a correcting order that he had no jurisdiction to make and then his issuing a correcting order that he had no jurisdiction to make without giving the parties the chance to argue against that course being taken.
174. DK's reasoning was convoluted in the extreme. It involved this remarkable sequence of events to have occurred:

(1) District Judge Powell had such a grudge or feeling of ill-will towards DK that he was determined to misuse his judicial office in order to harm him. This view would have been formed despite there being no evidence that District Judge Powell had ever previously met or had any dealings with DK.

(2) The district judge decided that he had been presented with an opportunity of harming DK when he discovered that the order that had been drawn up following Judge Moir's judgment had omitted her costs direction.

(3) The district judge immediately decided that he could use the slip rule to draw up an amended order in a way that would harm DK even though he knew that he had no jurisdiction to take the course of action that he had decided on. This course of action was one that DK had previously repeatedly asked should be taken, was one that the district judge had jurisdiction to take and that he had informed the parties would be taken when he adjourned the costs hearing.

(4) The district judge decided that he could only take his proposed course if he misled the parties into thinking that he would not himself take having decided that he would take it. He therefore lied to them by erroneously informing them that he would not amend Judge Moir's order but that she would.

(5) There was no reason for him to conceal his intentions from the parties since what he was proposing to do was within his powers and conformed both to the wishes of the parties and to the relevant provisions of the CPR. Moreover, that course of action was, in reality, the only sensible and practical step that he could have taken.

(6) The step that the district judge proposed to take would disadvantage DK in depriving him of an appeal to a higher court and, instead he would only be able to appeal to a circuit judge who would have the same status and standing and would be sitting in the same court as the judge who made the original order. In fact, the step that he took preserved the same rights of appeal to a higher court that would have existed had Judge Moir made the amendment order. However, the order that he made facilitated that appeal since, until the amended order was issued, DK could not proceed with his appeal.

(7) The district judge was so alarmed at hearing a transcript of the hearing had been ordered by DK, and that his deliberate error would thereby come to the attention of DK that he arranged for the critical passages that were on the tape to be edited out of it. This suggested motive for tampering with the tape ignored the fact that the district judge would have suffered no ill-consequences of "being found out".

(8) The district judge was prepared to commit a criminal offence which, if it was found out, would have terminated his judicial career instantly and would probably have led to his serving a sentence of imprisonment.

(9) The district judge committed this offence in a timescale of no more than about three to four weeks from when he could first have heard of the decision that DK had decided to have the tape transcribed^[51].

(10) The district judge would have then had to have tampered with the tape in a way that would ensure that the tampering would not be detected or would have had to find someone else to tamper with the tape who would be prepared to commit this crime, who had the necessary expertise to tamper with the tape so that the tampering would not be discovered and who the district judge could rely on to keep silent about the crime that he was commissioning.

(11) The district judge had no technical abilities that were sufficient to enable him to tamper with the tape in a way that would ensure that this tampering would not subsequently be discovered.

(12) The evidence suggested that it was an almost impossible technical task to tamper with the tape in this way yet it must have been tampered in this way if it had been tampered with at all since the technical examinations that were carried out on the tape failed to reveal any signs that it had been tampered with.

(13) DK's field of expertise and his doctorate were in information technology so that he would have been better placed than most to know how improbable it would have been for a non-expert to have tampered with the tape in the expert a manner that it would have had to have been tampered with if DK's allegations were correct.

175. Police's conclusion that no criminal conduct occurred. The IPCC, in a letter to DK dated 14 March 2008, summed up succinctly and clearly why the police had correctly concluded that no tampering had taken place. It pointed to the complete lack of a motive for, and the lack of any means of, achieving the suggested criminal objective as follows:

"The tape tended to confirm the judge's account, there was no reasonable reason to believe that the tape had been tampered with, no means of proving it if it had, and no obvious motivation for the judge to have done so since it would have been far easier for him simply to have said that he had misdirected himself on the question of his power to "perfect" a higher judge's order, rather than go to the trouble of denying what he'd said and then having to cover that up. ^[52]"

176. No evidence of tape tampering. I will summarise the available evidence that was collected that was relevant to the question of whether or not the tape had been tampered with. The principle evidence was that of three separate forensic experts who carried out separate technical examinations of the tape. There were at least two copies of the original tape that were examined and, possibly, the original tape was also examined. The first examination was undertaken by an expert commissioned by DK and the other two examinations were undertaken by an expert or experts commissioned by the police. Although these experts' reports were not made available to me, all three were reported as having been unequivocal that there was no discernible evidence of any tape tampering and, moreover, all three reports made it clear that only a highly skilled and trained technician could have embarked on a process of editing out a passage from the middle of the tape without that being discernible subsequently.
177. The police took statements from a number of people, including District Judge Powell and these all pointed inexorably to there having been no tampering with the tape. District Judge Powell's informal statement was not made available to DK but the account of its contents made by the investigating police officer that was made available to him was very revealing of DK's disillusion in maintaining his allegations about the district judge's behaviour. This was because the district judge had been able to point out a significant error of transcription that had occurred to the interviewing police officer in that the word "effected" appeared several times in the transcript but that that word should have read "perfected" as in "perfecting a court order".
178. This error, once corrected in the transcript, caused the relevant passages to take on a significantly different, and clearly innocent, meaning for any lay person reading them. Thus, by way of example, one passage of the district judge's words uttered during the hearing read:

"Now as I understand it, until such time as there is an order effected by the court, time does not run for the purposes of giving any notice of appeal."

Another passage reads:

"And I think what needs to happen is the judgment from Judge Moir needs to be effected, certainly in relation to the costs and needs to be served on DK."

If "effected" is replaced by "perfected" in these passages, the meaning, certainly for a lay person, becomes both less sinister and more benign. Instead of the change to the order that is being described appearing to be a manipulation of the order, the change appears instead to be a perfection or permissible amendment of the order that would be in accordance with, and permitted by, the CPR.

179. The only evidence that DK point to in support of his allegation that the tape had been tampered with were his contemporaneous notes and those of the solicitor representative of Canon that had been taken during the hearing. According to DK, both of these notes contain passages that show that the district judge had made statements at the hearing to the effect that that he had no jurisdiction to amend the order and that Judge Moir would amend it yet those statements were not mirrored in the transcript. It had to follow, he reasoned, that those statements were made but were not found on the transcript because they had been edited out of the tape that had been used to make the transcript.
180. The relevant passages of these notes were these:

"DJ could not assess the costs without an order to do so and therefore an amended order should be made to reflect this. DJ advised he could not amend this order himself and would have to request that HHJ Moir does so." (solicitor's note)

and

"Powell said that he had no jurisdiction to amend Moir's orders" (DK's note).

The transcript reveals the District Judge as actually stating this:

"And I think what needs to happen is the judgment from Judge Moir needs to be effected (sic) certainly in relation to the costs and needs to be served on DK. He can then consider whether he wishes to apply for leave to appeal. … What that revised order, in my view, ought to have done was also inserted (sic) the two items in relation to costs of the appeal …".

181. The only respect in which these passages in the notes appear to depart from the transcript is that the notes record the district judge as stating that the order would have to be amended by Judge Moir who would perfect the order whereas the transcript merely refers to the order being perfected without identifying who would undertake that exercise. In another passage of the transcript, the district judge refers to the perfection as being undertaken by "the court". Thus, in the transcript, the district judge was leaving it open as to whether he would perfect Judge Moir's order or she would perfect it or some third circuit or district judge would perfect it.
182. This textual analysis suggests that the note takers had interpolated the district judge's words by adding a note that Judge Moir would be the judge who would correct the order. This was an understandable interpolation of the district judge's words since DK was unaware of the fact that the district judge had the power and jurisdiction to use the slip rule to amend a circuit judge's order and Canon's representative, who was not a qualified solicitor, may also have been unaware of this fact. However, as the district judge made clear to the police officer interviewing him, he had the power to amend Judge Moir's order and he exercised that power. The officer's note of the interview was summarised in the police report as follows:

"… whilst reading through the transcript, the judge identified a typing error to the effect that the word "effect" would in actual fact be "perfect" meaning he would amend the order. The judge also explained that a judge could amend an order but not a judgment, therefore he was within his rights to change the order. Judge Powell stated that the fact that he could change an error is a basic fact within civil law but not one he would ever get "confused" with."

183. Conclusion – tape tampering. Overall, therefore, it was glaringly obvious from the start that District Judge Powell had no motive for tampering with the tape and that there was no evidence that any tape tampering had occurred. The police investigations, endorsed by the CPS review, and endorsed again by the IPCC investigations and report and finally endorsed by the appeal report all pointed inexorably to there being no evidence of any tampering. There was no evidence that any of the steps in the chain of reasoning that had led DK to conclude that the tape had been tampered with had occurred and that reasoning was in truth literally unbelievable. Moreover, the district judge had left those at the hearing in no doubt that an amended order would be made which would be in the form that DK was seeking. The only difficulty, on DK's case, with this order when it was issued was that it had been issued by a district judge rather than by Judge Moir who, according to him had been asked by him to amend her order and she had refused. At worst, therefore, the district judge had made a technical error in issuing an order which DK was seeking when it should have been issued by a circuit judge. Since WB informed DK after that firm was informed by DK that a serious procedural error had occurred that it had no objection to that error being corrected if such had occurred, the order could have been re-issued by a circuit judge with the consent of both parties.
184. Thus, there was no motive for committing the alleged crime, no opportunity to commit it, no necessary technical ability to commit it and no purpose in committing it. The only suggested evidence that tape tampering had occurred was, on close textual analysis, not evidence of any such thing. It follows that no tape tampering ever occurred and there never was any evidence that it had occurred.

(18) Police investigations and IPCC decisions

185. Between 2004 and 2008, the alleged crime was investigated by five separate investigative processes:

(1) By Northumbria Police, particularly by Detective Inspector Buzzeo and Detective Sergeant Spoor, between January and August 2005;

(2) By the CPS, initially Newcastle CPS and then, to avoid any suggestion of there being a conflict of interest, by Cumbria CPS between June and late August 2006.

(3) By Northumbria Police, particularly by Detective Sergeant Fairlamb, between September 2006 and November 2006.

(4) By the IPCC, between March 2007 and November 2007.

(5) By the IPCC, in December 2007 in dealing with DK's appeal against the original decision.

186. Each of these investigations concluded that there was no substance in the complaint that Newcastle Combined Court, and in particular, District Judge Powell was in any way involved in any actual or planned interference or tampering with any tape of a hearing at that Court.

(19) Costs assessment and enforcement hearings

187. Introduction. There were two costs orders that required assessment. These were:

(1) District Judge Howard's order dated 19 November 2002 in relation to the reinstatement hearing; and

(2) Judge Moir's order dated 18 June 2003 as finally corrected by the order dated 23 April 2004 in relation to the permission hearing.

188. DK had been ordered to pay both sets of costs once these had been assessed by the court. The assessment process that lead to the final order setting out the assessed sums that DK was required to pay Canon was lengthy and tortuous and had started with the first assessment hearing that was listed before, and adjourned by, District Judge Powell on 17 January 2004^[53]. The final order providing for the payment of those assessed costs was only perfected following a hearing by Judge Walton on 13 June 2008. The innumerable hearings that took place were interspersed with applications relating to:

(1) The order for sale arising from the charging of the interim costs order;

(2) A further charge arising from another interim costs order following an adjournment that DK had caused by his non-attendance;

(3) The disclosure of tapes held by the court on which were recorded various hearings and judgments conducted or delivered by various judges in some of the many costs hearings;

(4) Applications for adjournments of various hearings, some of which were successful and most of which were unsuccessful that were founded on the on-going police and IPCC investigations into DK's allegations of tape tampering; and

(5) Applications for permissions to appeal various orders, two of which were successful and the rest of which were unsuccessful.

189. Application dated 21 April 2004. District Judge Powell had directed that the detailed assessment of costs hearing should be adjourned but he gave the parties permission to apply for a further hearing date. Canon took up that permission and applied for and obtained a return date for 5 June 2004 for the assessment of the costs of both the reinstatement and permission hearings. This triggered an application from DK dated 21 April 2004 that applied to strike out the two orders that District Judge Powell had made, particularly the order that provided for the restoration of the assessment hearing. Judge Walton issued a procedural order concerning that application at the hearing on 23 April 2004^[54] to the effect that DK's application should stand as an application to adjourn the detailed costs assessment hearing.
190. Adjournment applications. DK's adjournment application was listed for hearing on 5 August 2004. In July 2004, DK obtained the transcript of the critical hearing of District Judge Powell that had been held on 27 January 2004 to assist him in his preparations for his threatened judicial review application. He then developed his theory that the tape had been tampered with and this led him to the belief that it would be unfair and unjust for any further costs hearings to take place until the police investigation into that tape tampering had been concluded and any subsequent judicial review had also been completed. He therefore issued an adjournment application on 28 July 2004 seeking an adjournment of the earlier adjournment application hearing that was due for hearing on 5 August 2004. This second adjournment application was heard and dismissed by Judge Walton on 2 August 2004 and the first adjournment application was heard by District Judge Atherton on 5 August 2004. That hearing was itself adjourned because DK was still abroad and it was relisted to be heard on 31 August 2004.
191. Deputy District Judge Smart's hearing on 26 August 2004. On 26 August 2004, Deputy District Judge Smart heard an application by Canon for an order for sale of DK's house which had previously been made the subject of a final charging order in relation to the interim payment order for £11,000 that remained unpaid. This application was made in Canon's enforcement claim. DK applied for an adjournment of this application contending that the stay on enforcement originally imposed by Judge Walton on 13 December 2002 in relation to the enforcement of this costs order remained in force and on the basis that he was about to start judicial review proceedings relating to the permission decision. The deputy district judge refused the application on the dual basis that the stay had been automatically lifted by Judge Moir's decision dated 18 June 2004 and had not been reimposed^[55] and that there was no evidence that DK had a genuine intention to start judicial review proceedings since these had still not been started more than two years after they had first been threatened^[56]. She then granted Canon an order for sale and refused DK permission to appeal. It is a remarkable fact that, due to DK's continued procrastination, that order still remains unsatisfied over seven years later.
192. At some stage following this hearing, DK obtained the transcript of the hearing. The transcript did not reproduce what had been said during the concluding part of the hearing and he obtained access to the tape which revealed that either the recording of that part of the hearing was badly distorted or the tape had not recorded it at all. DK immediately assumed that this tape had been tampered with although it became clear subsequently that all that had happened was that the tape had run out before the end of the hearing and the deputy district judge had inadvertently failed to replace the full tape with a fresh tape since that judge had inadvertently overlooked the need to check the tape machine and replace the tape when the current tape had run out. However, DK was not satisfied with this explanation and he reported this alleged further example of tape tampering to the police who soon afterwards declined to investigate this alleged criminal act because was no evidence that the tape had been tampered with. A further reason for the police taking this decision was that they had by then decided that the earlier alleged tape tampering incident had not occurred and that this new allegation was another example of spurious allegations of tape tampering.
193. DK complained about this decision to the IPCC but he did not pursue this complaint since he contended that it would delay the investigation of his other complaints whilst he continued to search for evidence to support the fresh complaint. Although DK subsequently purported to reserve the right to reinstate this fresh complaint with the IPCC and in the judicial review he is not seeking of the IPCC's decisions in relation to his complaints to that body, the reality is that no tape tampering occurred, the police reasonably refused to investigate the complaint about that alleged tape tampering and there is no outstanding complaint relating to this complaint before the IPCC or in these judicial review proceedings.
194. District Judge Atherton's hearing on 30 September 2004. The adjournment hearing that had been adjourned until 31 August 2004 was again adjourned at the hearing because DK had not supplied the court with information about the progress and contents of his threatened judicial review application that continued to form the basis for his costs hearing adjournment application. The application was finally heard by District Judge Atherton on 30 September 2004. DK again placed his threatened judicial review application at the forefront of his adjournment application. District Judge Atherton was prepared to grant an adjournment until February 2005 conditional upon DK initiating his judicial review before that date. It would appear that neither DK nor the solicitor representing Canon drew the district judge's attention to the then recent decision of Deputy District Judge Smart of 26 August 2004 in the enforcement proceedings so that District Judge Atherton appears to have been unaware that he was about to make a decision to adjourn the assessment proceedings which was inconsistent with that recent decision of the deputy district judge^[57].
195. Judge Walton's hearing on 2 December 2004. On 2 December 2004, Judge Walton heard a rolled up hearing of DK's application for permission to appeal Deputy District Judge Smart's order made on 26 August 2004 dismissing his adjournment and stay arguments and granting an order for sale. Judge Walton had to address DK's contention that that deputy district judge had taken an inconsistent course to the course adopted by District Judge Atherton on 30 September 2004. In the light of that inconsistency, Judge Walton granted DK permission to appeal the deputy district judge's order.
196. DK argued that, in the light of the inconsistency resulting from the deputy district judge's order refusing to halt the enforcement proceedings notwithstanding the threatened judicial review and the district judge's subsequent order adjourning the underlying costs assessment proceedings, the order for sale should be set aside and the application for the order adjourned and relisted for a hearing at the same time as the costs assessment, whenever that took place.
197. However, Judge Walton held that there was no good reason for holding up any proceedings related to costs in these words:

"… there has been enormous delay in seeking judicial review. Even now there are no such applications in being; despite his learning (as he said he did) in August that he could commence judicial review without waiting for the end of the case and despite Judge Atherton setting out a timetable he should achieve in his order of 30 September 2004. DK responds that he has all this time been seeking tapes of the various hearings and encountering difficulties in obtaining them. While it might be correct that he has encountered problems, I am far from satisfied that they are relevant, given that he has not (save in one respect I will come to) identified what grounds for judicial review he has. He must know the grounds he has in mind, whatever is on the tapes, and, being pressed, he has not save in one respect revealed them. That one respect is his point about the stayed order … that seems to me a bad point.^[58]"

He therefore dismissed DK's appeal from the deputy district judge's order and gave directions that the assessment hearing should take place as soon as possible.

198. Adjournment to Carlisle County Court. As a result of Judge Walton's direction, the Newcastle Combined Court fixed the costs assessment hearing for 28 February 2005. This led DK to issue a further adjournment application, the fourth in this series, dated 20 February 2005. His grounds in support of this application ran to 44 paragraphs and in them, for the first time in the litigation, DK raised the issue of what he referred to as alleged tape manipulation and stated that he had reported the apparent criminality of District Judge Powell to the police in October 2004. The document concluded by stating that the hearing should be adjourned until the investigations of alleged tape tampering had been concluded and he had been able finally to apply for judicial review which would not occur until all the necessary documentation that he required had been obtained
199. This application was heard at the outset of the assessment hearing by District Judge Bullock who was, understandably, concerned that the police were about to start a criminal investigation into the judicial conduct of one of that judge's judicial colleagues that had allegedly occurred in relation to an earlier hearing in the related principal claim. For that reason alone, the district judge ordered that the proceedings should be transferred to Carlisle County Court and that the detailed assessment should be adjourned generally to be re-listed at the conclusion of this police investigation.
200. Further proceedings in Newcastle Combined Court in 2005. DK's investigations into the previous hearings in his claim continued through most of 2005 at the same time as the police investigations were also continuing. DK applied to Judge Walton on 6 June 2005 for orders releasing the transcripts of six of these earlier hearings. He also applied for the transcript of one judgment which he claimed he had been wrongly refused. DK had not been refused access to these transcripts since any litigant is entitled to obtain copies of the transcripts of both the hearing and of any judgment delivered at the end of the hearing. His application sought a decision from Judge Walton as to whether he was entitled to these transcripts at public expense. Judge Walton, fairly and correctly, applied what he termed as the "appropriate merits test" in dealing with his application. This test was whether that there was some good reason why the court should provide these transcripts at public expense. If a good reason was shown, DK would be entitled to receive the relevant transcript at public expense since his financial means were such that he was entitled to a remission of the fees otherwise payable for the provision of these transcripts if it was reasonable to be provided with that transcript to assist in subsequent proceedings.
201. In his extended ruling that he delivered at the end of this application, Judge Walton considered each transcript application individually and allowed the application for the transcript of the judgment but refused all the applications for the transcripts for the various hearings in issue. The ruling carefully considered all DK's arguments for each transcript and set out detailed and cogent reasons for refusing each request. This was a decision that was both reasonable and well within the margin of discretion permitted to him. Following the ruling, DK was no longer justified in seeking adjournments of the cost assessment hearing since he had now received all the documents that he would be able to obtain that he contended he needed to see before the judicial review proceedings were issued.
202. Court of Appeal hearing on 6 November 2006. On 6 November 2006, a two-judge hearing took place in the Court of Appeal to hear DK's oral renewed application to appeal three different procedural orders made by Judge Walton and Judge Langan in the enforcement claim and a fourth order made in the principal claim relating to Judge Walton's order dismissing DK's transcript applications^[59]. The court dismissed this renewed application. In doing so, Rix LJ made trenchant comments about DK's suggestion that there was a close relationship between the police investigation and the principal and enforcement claims as follows:

RIX LJ

"8. Whether or not there was any interference with the tape recording made [at the hearing before District Judge Powell on 27 January 2004] it seems to me to have nothing whatsoever to do with the applications which are before us today. … [Moreover] it is inherently unlikely that any interference was made with such a tape. …

9. … it is plain that so far DK's complaints have fallen on stony ground and that both HHJ Walton, correctly in my view, and I have commented that the allegation is inherently unlikely. … so far as this court is concerned today, it should put out of its mind DK's, albeit insistent, allegation that something has gone wrong in this respect with the process of justice. … it is my current view … that his complaint, irrelevant as it is to these applications, is without merit and is being pursued to the extent and length that it is being pursued by DK as a means of putting of the evil day.

10. … It seems to me that the time has come and gone, in my judgment long gone, for the continuation of these complaints to hold up the process of these enforcement proceedings, subject to the four applications which are before us and their merits. …

18. Indeed, for the reasons which I have given so far in this judgment it seems to me that DK's application for these transcripts, and his pursuit of that application into this permission to appeal hearing, is part of his campaign to delay the enforcement of the interim costs order which has been made against him and is totally without merit. …

25. To sum up, an interim costs order was made against DK some four years ago. He exhausted his rights to appeal against that order. It has been properly made … . Over the whole period DK, it seems to me, as is now clear four years later, has been pursuing a campaign of delay essentially by reference to what I have to judge at present is an unmeritorious complaint about an irrelevant hearing in respect of which it is said that the tape of that hearing was interfered with.

Therefore, all four applications are refused and all four applications are adjudged to be totally without merit."

MOSES LJ

"I agree."

203. At the conclusion of the hearing, the Court of Appeal imposed a limited CRO on DK which restrained him from making any further application in "these proceedings" without first obtaining the permission of Judge Walton or a deputy appointed by him. The proceedings referred to were the principal claim in which DK was the claimant, claim NE804908, and the enforcement claim that had been started by Canon and which sought an order for the sale of DK's house, claim NE311047. It is clear that both these claims were being referred to by the words "these proceedings" that are found in the CRO. This is because the Court of Appeal had heard applications in both clams. In relation to principal claim, it had heard an application relating to DK's application for the release of tapes of hearings in that claim that had taken place in front of Judge Moir on 18 June 2003, Deputy District Judge Smart on 18 September 2003, District Judge Powell on 27 January 2004, District Judge Atherton on 30 September 2004 and District Judge Bullock on 28 February 2005. Although the heading for the Court of Appeal application document only referred to the enforcement claim, NE311047, the part of the application relating to these particular tapes could only have taken place in claim NE804908. Thus the claim whose title number was referred to in the application document was not the only claim that the application document related to. It was merely the lead claim of an application for permission to appeal that was concerned with both the principal and enforcement claims.
204. It followed that the CRO, in referring to "the proceedings" covered both the principal claim started by Aptech and the enforcement claim started by Canon. On 21 August 2007, at the hearing of DK's application for permission to extend time for issuing a notice of appeal from the order of District Judge Park dated 18 January 2007, Judge Atherton was shown a copy of the Court of Appeal's CRO and he was asked to dismiss the application because permission had not been obtained from the judge designated in the CRO to issue the application as was required by the CRO. DK persuaded Judge Atherton that the CRO was not applicable to this application on the grounds that the CRO did not apply to applications made in the principal claim and that its effect was in abeyance since he had issued an application in the Court of Appeal seeking to reopen the appeal^[60]. Both arguments were untenable. The CRO clearly related to applications in the principal claim and the re-opening application had already been dismissed by the Court of Appeal without a hearing. Moreover, the service of the re-opening application, prior to its dismissal had not had the effect of staying or setting aside the CRO.
205. Thus, no fresh application in either claim should have been made by DK in the period between 6 November 2006 and 5 November 2008 without his first having applied for and obtained the permission of Judge Walton for it to be issued and, on the hearing of that application, showing that there was a good reason for the proposed application to be issued and heard. It is inconceivable that any of the applications issued in that period would have been permitted had the CRO procedure been followed. Despite the CRO being in force, DK issued at least ten applications without obtaining the permission of Judge Walton, being one issued on 2 January 2007 seeking to set aside District Judge James's order made on 17 November 2006, two issued on 13 and 30 April 2007 seeking to strike out orders made on 13 and 30 April 2007 and four issued on 23 May, 22 June, 6 November and 12 November 2007 and three issued on 22 February and 28 March and in April 2008^[61]. All these applications were dismissed, all were misconceived and all sought adjournments or striking out orders in an attempt to yet further delay DK's payment obligations to Canon.
206. Order of 17 November 2006. Carlisle County Court had been waiting to list the costs assessment hearing since that assessment process had been transferred to it following the order made on 28 February 2005. District Judge James therefore made a case management order in the court's own initiative dated 17 November 2006 directing the parties to file a time estimate for the assessment hearing and for that hearing to be listed thereafter.
207. DK responded by filing an application dated 2 January 2007 seeking an adjournment of this hearing, the fifth such application in the series. DK, on this occasion, applied for an adjournment on the grounds that he had lodged complaints with the IPCC concerning the seriously deficient way that he had alleged that Northumbria Police had investigated his complaints about his suspicions that court tapes had been criminally tampered with and that those complaints should first be dealt with.
208. DK' application also sought orders from the court requiring the release to him of all correspondence and reports that related to his complaints about tape tampering that were held by Northumbria Police for him to use in forthcoming court hearings and it also applied for this order:

"The court shall arrange the safe custody of all court tapes held by Newcastle-upon-Tyne County Court and any other authority."

In support of these remarkable applications, DK stated that these orders were being sought so as to ensure that there was no attempt to destroy crucial evidence that might be required in any on-going investigations of impropriety within the court system and/or the judiciary and/or police officers involved with investigating DK's complaints.

209. Order of 17 January 2007. District Judge Park, on his own motion and without a hearing, struck out DK's application as having no prospect of success and as not being relevant to the hearing of the forthcoming detailed assessment of costs. He directed that the assessment hearing should be listed for 24 May 2007. This decision was inevitable and was properly made without a hearing. There was no conceivable basis for an adjournment and the district judge had no jurisdiction to make the two mandatory orders that were sought since the application for them was not directed to Canon, the only other party to the principal claim, or even to named individuals concerned with that claim. These orders should have been sought, if they were to be sought at all, as new claims set out in a freshly issued claim form naming the individuals or bodies against whom the orders were sought. Instead, the application merely sought mandatory orders in the principal claim without naming the individuals who were to comply with them. The whole application was one that the limited CRO was intended to prevent since it was both vexatious and totally without merit.
210. Order of 24 May 2007. At the assessment hearing on 24 May 2007, DK applied for the sixth time for an adjournment, on three grounds:

(1) His reference to the IPCC in March 2007 of the allegedly unsatisfactory conduct of the police officers investigating his complaints of tape tampering and the on-going IPCC investigation of that reference;

(2) He had very recent served a notice of appeal seeking permission to appeal District Judge Park's order dated 17 January 2007 striking out his previous adjournment application; and

(3) His application for permission to appeal to the Court of Appeal seeking permission to appeal against the order of Judge Walton dated 2 December 2004 dismissing his application to transfer the enforcement proceedings to the Carlisle County Court was still outstanding and would be heard in the near future on 27 June 2007.

211. Deputy District Judge Turner somewhat benevolently granted this application, principally on the grounds that DK's possible appeal from the order of 17 January 2007 should be concluded prior to the assessment hearing taking place. He also relied to a limited extent on the other two grounds put forward in support of the adjournment application.
212. The deputy district judge granted the adjournment on terms that DK should pay Canon's costs thrown away by the adjournment that he assessed in the sum of £2,250. He made this order because the hearing was only adjourned after DK had served a very belated application to adjourn the hearing the day before it was heard and granted at the hearing. Moreover, the hearing had gone ahead after an earlier application to have the hearing adjourned had been struck out and the second successful but belated application was advanced on the ground that he was seeking to appeal the order dated 17 January 2007 which was a ground that had not previously been raised. The adjournment had been granted on terms that the costs thrown away should be paid by DK in any event and that these should be summarily assessed in the sum of £1,700 and paid forthwith. Since DK had only made his successful adjournment application the day before this hearing, it was reasonable, inevitable and in conformity with the CPR for the deputy district judge to have made the costs order that he did.
213. Judge Appleton's order of 21 August 2007. DK's application to serve a notice of appeal from District Judge Park's order of 17 January 2007 was, like many of his previous applications for adjournments and permissions to appeal, served out of time. He therefore had to apply for an extension of time to file this application and this application and his application for permission to appeal were heard together on 21 August 2007 in Preston County Court. Judge Appleton refused to extend the time within which DK should file his application for permission to appeal. He also recorded that the application was totally without merit and directed Canon's solicitors to apply for the listing of the hearing of the detailed costs assessments.
214. The effect of Judge Appleton's order was that the orders made by District Judge James on 17 November 2006 and District Judge Park on 17 January 2007 remained effective. Their combined effect was that the assessment hearing should proceed forthwith notwithstanding DK's contentions that the assessment should be adjourned until after the conclusion of the police investigations and his outstanding Court of Appeal application for permission to appeal the Court of Appeal.
215. DK contended in his grounds document that Judge Appleton should not have made this order that he made on 21 August 2007:

"The Defendant's Solicitors do write to Carlisle County Court to request that the detailed assessment be listed and that the detailed assessment be relisted by Carlisle Count Court on receipt of such request."

His contention was that this order was motivated by bias, was at variance with the adjournment order that had been made by Deputy District Judge Turner on 24 May 2007 and was both unjust and erroneous. DK also contended that Judge Appleton's order had wrongly refused to extend the time for filing his notice of appeal because the filing had only been late due to the unspecified administrative errors of the Carlisle County Court.

216. Judge Appleton considered the merits of the application in some detail and delivered a lengthy judgment explaining why he was refusing permission to extend time. In particular, he considered whether the proposed appeal, if it was to take place, had any merit. Judge Appleton considered, and placed particular reliance upon, a letter that he was shown at the hearing that had recently been written by Northumbria Police. This stated that the police investigations had been completed and had concluded that there was no substance in any of DK's complaints about tape tampering. Judge Appleton therefore concluded that there remained no outstanding objection to the assessment hearing taking place and that the proposed appeal had no prospect of success. In consequence, DK was not granted permission to file his notice of appeal out of time. Even if the proposed appeal had had some merit, it is unlikely that time would have been extended since DK had not provided any explanation or justification to excuse the four months' delay that had occurred in his filing the notice of appeal from District Judge Park's order. Judge Appleton therefore directed that the assessment hearing should proceed and that the previous adjournment orders, including that of Deputy District Judge Turner, should be set aside.
217. Judge Appleton's decision was well within his margin of discretion, was wholly justified and gave rise to no conceivable complaint by DK. His complaint that Judge Appleton was biased was based solely on his view that Judge Appleton's decision to refuse him permission to file the notice of appeal out of time was wrong. There was in truth no evidence of bias and no basis for alleging bias.
218. Attempted appeal of Judge Appleton's order. DK applied for a second appeal from Judge Appleton's order by lodging a notice of appeal and an application for permission to appeal in the High Court sitting at Preston. On 7 November 2007, Silber J refused on paper the application for permission to appeal on the grounds that it sought permission to appeal a refusal to grant permission to appeal, which was an appeal which was not permitted by the CPR. Moreover, Silber J concluded that the proposed appeal was hopeless.
219. DK has since contended that Silber J's refusal decision was erroneous since he did not take account of the administrative errors that DK alleged had occurred in Carlisle County Court that had "forced" him to file both the application to file the application for permission to appeal District Judge Turner's order and the application to file the application for permission to appeal Judge Appleton's order out of time. However, these errors were not particularised and Silber J's reasons, although succinct, rejected the application on these cogent grounds:

"The applicant was appealing an application [for permission to appeal] and was made out of time.

A party cannot appeal a decision refusing leave to appeal.

In any event, nothing has been stated by the claimant to show that he has any prospect of succeeding on his appeal let alone reaching the threshold required to obtain permission to appeal."

220. DK also attempted to file a notice of appeal against Judge Appleton's order with the Court of Appeal but the Court of Appeal office refused to accept the notice since the Court of Appeal had no jurisdiction to hear the application because it was an application for permission to appeal a circuit judge's refusal of permission to appeal the order of a district judge and, additionally, an application for permission to appeal a procedural and case management order of a circuit judge, .
221. Thus, District Judge Turner's original decision, Judge Appleton's refusal decision, Silber J's second refusal decision and the Court of Appeal Office's decision not to file the proposed application were all wholly justified and inevitable.
222. Hearing on 31 October 2007. This hearing was concerned with Canon's application for a final charging order over DK's house for the unpaid costs order that had been made following the order adjourning of the hearing on 24 May 2007. DK did not appear at this hearing but he had sought an adjournment or dismissal of the charging order application in an application which had been served before the hearing. In support of that application, his written grounds contended that the costs order should never have been made on 24 May 2007 and that it was premature for the sum that he had been ordered to pay Canon its costs thrown away by the adjournment on that earlier occasion to be charged on his house even though these costs had not yet been paid. District Judge Smith considered those grounds and refused the application for an adjournment. He then dealt with the application and concluded that the costs order had been fairly and properly made and that the costs order should have been paid forthwith. He therefore made the interim charging order that Canon was seeking. This was a wholly fair and appropriate order to have been made in those circumstances.
223. Hearing on 21 November 2007. On 21 November 2007, the assessment of costs hearing finally took place in front of District Judge Park, nearly 4 years after the first hearing had been adjourned by District Judge Powell. DK did not attend this hearing but he submitted a written application for an adjournment by letter to the court dated 21 October 2007, the seventh adjournment application in the series. The basis of the application was that the hearing was premature both because DK was seeking to appeal Judge Appleton's order dated 21 August 2007 to the High Court and to the Court of Appeal and because his earlier outstanding application to the Court of Appeal that had originally been listed for hearing on 27 June 2007 had still not been heard^[62].
224. The district judge dealt with the various grounds for seeking an adjournment as follows:

(1) The on-going police investigations. The adjournment had originally been granted partly because the police investigations into tape tampering were still on-going at that time. However, as Judge Walton found in his judgment dated 21 August 2007, the police investigations had ended and had reached a clear conclusion that there was no evidence of tape tampering. The subsequent reference these police investigations to the IPCC did not provide any basis for seeking an adjournment since the investigations of the IPCC into the police investigations had nothing whatsoever to do with any hearing concerned with the assessment of costs or the enforcement of costs orders that DK had been ordered to pay Canon^[63].

(2) The application seeking permission to appeal District Judge Park's order dated 17 January 2007 striking out his previous adjournment application no longer had relevance since Judge Appleton had refuse permission to serve this out of time on 21 August 2007 and Silber J had dismissed an application for permission to appeal that order in an order dated 7 November 2007. Moreover, the Court of Appeal had refused to accept an application for permission to appeal Judge Appleton's order on the grounds that it had no jurisdiction to hear that application.

(3) The outstanding application for permission to appeal to the Court of Appeal the order of Judge Walton dated 2 December 2004 dismissing his application to transfer the enforcement proceedings to the Carlisle County Court was no longer relevant to a possible adjournment because there was no longer any basis for a transfer of the enforcement proceedings since the police investigations had ceased. In any event, that application had nothing to do with, and could not affect, the assessment hearing.

225. DK subsequently put forward as a further reason why the assessment hearing should have been adjourned the fact that he had been unable to attend it due to family reasons that had detained him in the south. He has never explained why these reasons were so pressing that they reasonably prevented him from returning to Preston for the hearing nor why this basis for seeking an adjournment was not put before the district judge with his other grounds for seeking an adjournment. Moreover, had family reasons genuinely prevented his attendance so that the hearing had unfairly proceeded in his absence, DK could have applied to the court for, and obtained, a rehearing so long as that application had been made promptly^[64] but no such application was ever made.
226. There was, therefore, no basis for applying for an adjournment. The district judge exercised his discretion to refuse it and certified it as being totally without merit. This ruling was well within the district judge's margin of discretion. Indeed, there was no basis for granting the application since none of the three reasons that had led to the adjournment of the assessment hearing on 24 May 2007 remained applicable and no new ground for an adjournment had been put forward by DK in his recent written application.
227. The district judge then undertook the assessment of costs and ordered DK to pay Canon £19,334.70 for its costs of the reinstatement hearing, £12,826.96 for its costs of the permission hearing and £2,245.40 for its costs of the assessment hearing. The district judge also ordered that the claim should be transferred back to the Newcastle Combined Court.
228. Court of Appeal hearing on 3 December 2007. For the second time in the enforcement claim, the Court of Appeal heard a renewed oral application for permission to appeal an order made by a circuit judge^[65]. On this occasion, the application was again heard by a two-judge composition. The hearing was on 3 December 2007 and it concerned with DK's application for permission to appeal Judge Walton's order dated 4 August 2006 on 3 December 2007. The court comprised Rix LJ and Lloyd LJ. The order that DK wished to appeal was the one that had refused his application to transfer the enforcement claim to the Carlisle County Court where the principal claim had previously been transferred to. The Court of Appeal refused permission for this appeal and, in refusing permission, both Lord Justices warned DK that any subsequent application for judicial review might well lead to his being made the subject of a general CRO^[66]. The judgments contain these observations:

Rix LJ

"13. This application, in truth, is totally without merit and is therefore refused. There is already in existence a limited CRO in these proceedings, which means that DK is unable to advance any further application without it first being considered by HHJ Walton or HHJ Walton's deputy and permission being obtained from that quarter. I have already explained why the application before us was not caught by that limited CRO^[67]. However, this totally-without-merit application again demonstrates the need for such a CRO. DK must be aware that he runs the danger – if he continues with applications of this kind which, in my judgment, are simply intended to delay proceedings in which he is involved – that further and more general civil restraint orders may yet be made against him. He should take that possibility seriously to heart. DK has mentioned the possibility that he intends to apply for judicial review of these years of proceedings as a whole, or at any rate some part of them. That is an intention which he has been stating for some years before many judges. The outcome of any such application must lie in the future^[68]. However, this long-standing threat is no reason whatsoever for this court to reconsider the judgments which it has made, at any rate in my judgment, today."

Lloyd LJ

"14. … I would endorse, and urge DK to consider carefully, my Lord's observations about the risk of a more extensive civil restraint order being made, if further applications are made in these or other proceedings. They cannot be made in these proceedings for the time being because of the limited civil restraint order, but in other proceedings he risks a more extensive civil restraint order being made against him.^[69]"

(20) Hearings of 7 April and 13 June 2008

229. Hearing on 7 April 2008. DK, still undeterred, issued two applications which were heard by District Judge Loomba in the Newcastle Combined Court where the main action had been transferred back to following District Judge Park's order of 21 November 2007. The first application sought to set aside the final charging order made by District Judge Smith on 31 October 2007 and the second to set aside the assessment order made on 21 November 2007, in both cases on the grounds that these orders had been obtained following an abuse of process. Neither application was one that the district judge had jurisdiction to grant. He held in a short judgment that the only way of setting aside both orders was by way of a successful appeal to a circuit judge. The same result could not also be achieved by way of an application to a district judge to set aside the orders. He therefore dismissed both applications as being totally without merit since he had no jurisdiction to deal with them. This ruling was based on a correct application of the CPR^[70].
230. The district judge then considered DK's application to adjourn the final charging order to enable him to seek judicial review of previous orders and dismissed it as well and also held it to be totally without merit. This was also a ruling that was within his discretion to make, inevitable and based on a correct application of the CPR.
231. Hearing on 13 June 2008. DK sought permission to appeal the order of District Judge Loomba and the earlier costs order of Deputy District Judge Turner dated 24 May 2007. The application was heard by Judge Walton on 13 June 2008. DK served a witness statement in support of his application which identified that he was seeking the following in his application:

(1) The setting aside of the interim costs order of Deputy District Judge Turner dated 24 May 2007 on the grounds that it should never have been made.

(2) The setting aside of the order of Judge Appleton dated 21 August 2007 which had led to the final assessment hearing on the grounds that it was an abuse of process.

(3) The setting aside of the interim charging order of District Judge Smith on 31 October 2007 on the grounds that it was procedurally irregular.

(4) The setting aside of the costs assessment order of District Judge Park dated 21 November 2007 on the grounds that it was an abuse of process and because the district judge had wrongly failed to grant an adjournment of that hearing.

(5) The setting aside of the final charging order of District Judge Loomba dated 7 April 2008 on the grounds that the district judge had wrongly failed to grant an adjournment of that application.

232. Underlying these applications were DK's contentions that:

(1) He had an outstanding appeal from Deputy District Judge Turner's order which had merit but which the Carlisle County Court had refused or failed to list for a hearing.

(2) The adjournment order made by Deputy District Judge Turner was to the effect that the assessment hearing should not take place until after the conclusion of the then outstanding Court of Appeal application and that ruling should not have been altered or reversed.

(3) There were a series of administrative errors that had led to procedural errors which had caused or contributed to the making of the five orders that were being challenged. Had these errors not occurred, those five orders would not have been made.

(4) The various judges who had made these orders were biased against him and only made those orders as a result of that bias.

(5) The cumulative effect of these complaints constituted an abuse of the entire process that had led to each of the five orders.

233. Judge Walton carefully considered all the underlying complaints which I have summarised. His findings in relation to those complaints were as follows:

(1) DK had never lodged a notice of appeal against Deputy District Judge Turner's costs order and had never applied to the court to have that application listed. In any event, there were good reasons for that order being made and the order was proportionate. In consequence, any appeal from that order was bound to fail.

(2) The adjournment decision of Deputy District Judge Turner was considered with care by Judge Appleton and he concluded that it had not been appropriate, necessary or in the interests of justice for the assessment hearing to await the conclusion of the second Court of Appeal proceedings. Judge Walton stated this about Judge Appleton's decision:

"Frankly speaking, as a matter of case management, on hearing the appeal, it seems to me that Judge Appleton was entirely within his rights to do what he did. Again, that part of the order is not the subject of any successful appeal. It stood. The court [in hearing the costs assessment] was simply doing what Judge Appleton had directed in listing the detailed assessment. Again, that seems to me a case management decision well within Judge Appleton's discretion at the time he made it. I reject the characterisation of that order as an "abusive process". It was not. It was one he was perfectly entitled to make."

(3) In relation to all the other grounds and generally, Judge Walton concluded as follows:

"22. Finally, we come to the reasons why the final charging order … should not proceed. DK has many outstanding complaints about how this process has been carried through. I have no doubt that if they were set out individually, a formidable list would emerge. I am bound to say that coming to the case at this stage it has begun to bear the aspect of an attempt simply to try and employ every possible procedural devise to put off the inevitable day. In short, I see no substance in the reasons put forward for any further adjournments or putting off so further enquiries can be made to find out this or that.

23. It seems to me that the District Judge was entirely within his rights to take the view which he did in relation to these various applications. He had a discretion in relation to it. It may be that he did not have the opportunity to go into the matter in the depth in which I have been able to go into it. Even if he had dealt with it, as a matter of impression on the limited information that was before him, it seems to me that he came to the right result. In those circumstances, I take the view that the appropriate order here is to refuse permission to appeal. That would be the order in relation to each of the orders made by the District Judge.

24. I have not dealt with one aspect and for completeness I should. As part of his applications, DK invites me to reject the characterisation of them by the District Judge as wholly without merit. Again, for the reasons which I have given, I take the view that the District Judge was entitled to take that view. He did not go on to make any form of restraint order and confined himself to refusing permission to appeal. I am going to take the same course. I will simply refuse permission to appeal."

234. Judge Walton therefore refused DK's application for permission to appeal. He also declined to set aside District Judge Loomba's order that the applications before him had been wholly without merit. Judge Walton considered that the district judge was entitled to take that view.
235. Conclusion – order of 13 June 2008. It will be apparent from my exhaustive review of both sets of proceedings that I share the conclusions of Judge Walton, albeit that this is not an appeal from his judgment but an application for permission to apply to the Administrative Court for a judicial review of this decision and its accompanying order.

(21) DK's complaints to CSU

236. In the period October 2007 until November 2009, DK addressed a significant number of complaints to the Courts Service of maladministration by various court officials in Carlisle County Court and the Newcastle Combined Court and, when these complaints had been dealt with and rejected as complaints, a composite complaint to the Customer Service Unit which is the Unit which is the final port of call for complaints about inefficiencies and maladministration by court staff when processing claims in the county court. These complaints may be summarised as follows:

(1) Delays occurred in the Carlisle, Preston and Newcastle courts in processing various applications that he had lodged because he was seeking fee waivers which were not dealt with or not dealt with promptly.

(2) Several of his applications that hearings should not be listed or should be adjourned were ignored by the listing officer and other court officials concerned with listing.

(3) Several lengthy delays occurred in dealing with his various applications for transcripts of hearings and judgments.

(4) The transcript of the hearing on 27 January 2004 had been sent without justification to Judge Walton to correct when it should have been sent to District Judge Powell to correct.

(5) Various emails were sent to these courts which were not dealt with, answered or preserved. Furthermore, he had received conflicting advice from different members of the court staff as to how emails should be worded and as to the email policies and protocols in force that should be followed by those emailing the court about court business.

237. These complaints were all answered, several on a number of occasions, by the court manager to whom each particular complaint had been sent. The complaints about listing and adjournments were, as was pointed out to DK, ones that related to judicial functions since the listing and adjournment of applications was a judicial function and any requests or complaints about these functions had to be addressed to an appropriate judge on notice to other affected parties. The other complaints were dealt with at length and with considerable tact and patience. Full explanations were provided and, in a few minor respects, shortcomings were acknowledged and appropriate apologies were provided. None of the matters where such an acknowledgment was provided were of sufficient significance that anything other than an apology was appropriate.
238. As a result of his dissatisfaction with these answers, DK wrote a detailed letters of complaint dated 17 September and 29 October 2009 which were answered by Miss Hague, the Area Director of HMCS Cumbria & Lancashire Area. Dissatisfied with these answers, he wrote letters of complaint dated 19 November 2009, 27 January, 8 February 2010 and 16 March 2010 to the CSU located in the offices of the Court Service in Clive House, London, SW1 and these were answered by one of the Senior Caseworkers, Mr Hodges. The gist of these replies, which had all obviously been made after detailed, possibly exhaustive enquiries had been made of the relevant files and court officials, may be summarised as follows:

(1) Court staff followed established procedures as set out in the CPR and the appropriate service manuals and staff guidance in respect of the receipt and acceptance of emails and the linking of emails with the appropriate and relevant hearing date or court file.

(2) Any request for the issue of an application or other process must be accompanied by the appropriate fee or request for a fee exemption. Any request which was not accompanied by either the appropriate fee or exemption request had to be, and was, returned to Dr Walton.

(3) Requests for transcripts and fees for transcripts were dealt with by a particular section of each court liaising with the transcribing company. Applications for the appropriate fee to be paid for out of public funds was dealt with by a judge to whom the application would be referred by the member of staff concerned with the Fee Concession Process which was a different section to that dealing with transcript requests.

(4) Some delay had been caused in dealing with a number of letters by the Carlisle County Court and suitable apologies had been provided for these delays. No claim had been made for financial redress and the apologies that had been provided were sufficient and suitable redress.

(5) No further inquiries or explanations were appropriate until, if these were necessary, after the conclusion of these judicial review applications.

239. DK has not done anything more than furnish the Administrative Court with copies of the relevant correspondence that I have just summarised in order to particularise or explain the ground of his application that relies on maladministration and administrative incompetence. Having carefully reviewed that correspondence, I conclude that all DK's complaints were fully and adequately considered and answered by the relevant court, by the Area Director of the Cumbria and Lancashire area and by the CSU. In a few isolated instances, a complaint of delayed response to DK's correspondence was identified and an appropriate apology was given. Since no financial claim was made and no explanation of what, if any, prejudice had been suffered by DK, I conclude that he is not entitled to any further redress and that he has suffered no prejudice, unfairness or breach of his article 6 rights by any action or omission of any member of the Court Service in any of the courts concerned with the principal and enforcement claims.

C. Conclusion – Amendment Application

240. Limitation – Human Rights Act claims. Section 7(5) of the Human Rights Act 1998 ("HRA") provides that proceedings for breach by a public authority of a person's rights under the HRA must be brought within one year from the date on which the act complained of took place or such longer period as the court considers equitable having regard to all the circumstances. In this case, NCC is undoubtedly a public authority and no objection has been taken by NCC that at least one of the orders challenged in the original claim was made by the Carlisle County Court so that it accepts responsibility for any HRA claim that may be brought in relation to the actions of that court as well. I am satisfied therefore that all matters put forward in the draft amendment that I am considering are to be regarded as being matters for which NCC is liable for if a breach of the HRA is established.
241. The acts complained of occurred between March 2000 and 13 June 2008 and the complaint is, in effect, a rolled-up complaint that the totality of the unlawful and irregular acts and the repeated alleged non-compliance with the CPR coupled with the suggested inordinate time that the claim proceed for provide a composite breach of article 6(1) of the ECHR. Without expressing a final view, I am prepared to consider, for the purposes of this permission application, that time started to run for the entirety of the breaches giving rise to the article 6(1) claim or claims on 13 June 2008. Thus, the amendment dated 9 January 2011 is 18 months out of time. No application has been made section 7(5) of the HRA for an extension of time but I assume that had this been pointed out to DK, he would have amended his draft amended grounds to plead an application for an extension.
242. What is particularly problematic for DK is his failure to include this claim in the form it now is in when filing the claim in its original form on 7 November 2008. There is nothing in the claim in its amended form which could not have been included in the original grounds document when first filed. In truth, DK has only expanded his claim and pleaded it as a HRA claim on realising that his original claim was far too narrowly drafted and was doomed to fail. He has not, however, put that forward as an explanation but nor has he put forward any other explanation. I can find no basis for granting an extension of time from 13 June 2009 until 9 January 2011, particularly given the delays that had occurred prior to that date, almost all of which were of DK's making or as a result of his decision to postpone steps or to seek adjournments to suit his own convenience or for reasons that have turned out to be bad or unwarranted. The application to amend is dismissed on limitation grounds.
243. Merits. DK has provided the court with nearly 200 pages of additional documents which include nearly 100 pages of comments and annotations of the draft judgment sent out in January 2012 that was subsequently withdrawn to enable him to make further submissions about it. None of those documents provide any basis for my changing any parts of the draft concerned with the proposed amendments to the claim form and grounds^[71]. I will summarise the gist of these proposed amendments and why I have not incorporated any of them into the draft judgment.
244. Liquidation of Aptech and inadequate and non-existent particulars. Notwithstanding DK's comments, Aptech could not afford to initiate the claim that DK had formulated and procured it to serve on NEP and Aptech should not have done so. Furthermore, the breaches of contract, the loss and damage that were suffered and a summary of the necessary expert evidence needed to prove the link between breach and damage were all insufficiently particularised and have never subsequently been shown to exist. These matters should have been set out in the particulars of claim and it was not in conformity with the CPR to leave them to be addressed at a case management conference held after the pleadings were closed. Even at the hearing of the appeal against the refusal to reinstate the case, held some five years after the claim had been issued, DK was unable to produce sufficient evidence to show that the claim was anything other than vexatious and an abuse of process.
245. The alleged failure of the court to address the "CSC". DK seeks to show that none of the delay that occurred from the moment Aptech went into liquidation on 3 February 1999, some six months after the claim had been filed, and the hearing of the reinstatement application on 21 November 2002 was his fault and was therefore excusable. Instead, his comments contend at length that the court failed to apply the overriding objective in failing to permit him to proceed with the action, being a failure to apply what he calls the "common sense clause" or "CSC". However, DK ceased to have any legal entitlement to manage Aptech or to take any management decisions on behalf of that company the moment the winding up order was made. The only person with authority to act on behalf of the company or to receive and be served company documentation was the liquidator who had exclusive decision-making powers and was exclusively responsible for each step taken in the claim and each failure to take any step. In law, all documents had to be served on the last known address of the company unless and until the liquidator served notification of a change of address on the court. If DK wanted to take any step or action on behalf of the company before he had taken a legal assignment of the company's causes of action, he first needed to have taken a completed assignment of those causes of action or obtained the formal authority of the liquidator to take that step on the liquidator's behalf.. Any delay caused by the liquidator in not progressing the action was delay that DK inherited responsibility for on taking the assignment of its causes of action. Therefore, DK had no excuse for that lengthy period of delay and that delay alone was sufficient to ensure that the action could not proceed, whether previously struck out or not, once DK had taken the requisite assignment and had started actively to pursue the action in his own name. These were the reasons for the court declining to reinstate the claim and DK has failed to recognise or accept any of them.
246. New claim has no prospects of success. If the new claim against NCC and supporting grounds had any merit, I would have been disposed to grant an extension of time. However, the claim has no merit and is, indeed, totally without merit. It is true that the claim has taken nearly 10 years to reach the point when it was finally disposed of but so little of that period can be attributed to delay by the court or the Court Service that such delay that is attributable to it does not give rise to a HRA claim based on delay or on a denial of justice due to delay. Furthermore, the claim as formulated does not rely on delay and no such basis of claim is contended for in the draft amendments.
247. The allegations of lying and tape tampering. DK continues to this day to contend that his original allegations against the district judge are justified and still stand untarnished and undimmed despite the wealth of evidence that has come to light since the allegations were first made which demonstrate that the district judge has been completely exonerated. It is abundantly clear, and indeed always has been, that there is no substance in the allegations that that judge or anyone else tampered with the court tape recording the hearing on 27 October 2004, lied or intentionally sought to mislead those in his court on 27 October 2004, had any ill-disposed motive or malicious intentions about DK, lied to the police during the police investigations that took place or intended to act or actually acted contrary to the provisions of the CPR.
248. If DK had any continuing and genuine belief in the district judge's criminal intentions or behaviour having received the draft judgment in January 2012, given his view that it was redolent with biased and ill-founded findings unfairly vindicating the district judge and his reputation, he would have summarised why he continued to believe in the district judge's guilt. He could and should have set out all the evidence in his possession about the relevant incidents and have undertaken a careful and minute examination of the entirety of that evidence so as to show why it provided good evidence that the alleged tampering and lying had occurred.
249. In particular, DK should have provided some explanation of how the tape could have been tampered with in the light of the technical evidence that showed that this was next to impossible. He should have identified the motives of the district judge and the harm that his actions had caused. In particular, he should attempted to provide an explanation as to why have the district judge was prepared to risk his career and his way of life by committing such an apparently motiveless and unnecessary crime. He should also have explained why he contended that the district judge still harboured such malicious feelings about him. DK had not provided any significant evidence of malicious intent. All he provided was evidence that the district judge had conducted a short hearing in an unrelated case on 10 September 1997 that had led the agency solicitor acting for DK's opposing party to conclude that "a more robust district judge may not have allowed DK such leniency" which is hardly evidence of the district judge any ill-feeling towards him but instead is evidence of the reverse. Finally, DK should also have provided an answer to each of the points set out in the draft judgment showing why the district judge had been completely exonerated. In fact he did none of these things but merely reiterated almost parrot-fashion his previously stated assertions^[72].
250. DK's assertions of judicial bias. DK's comments are replete with assertions that passages in the draft judgment are biased or are evidence of bias. When these comments are examined, it becomes clear that DK has done little more than take each adverse comment or finding in the draft judgment and assert that it is biased with no further explanation other than it is adverse to his interests and is expressed in a firm albeit reasoned manner. There is, therefore, on the basis of DK's comments, no evidence of bias in the draft judgment.
251. Overall conclusion. The application to amend is dismissed. The proposed amendments should never have been put forward and the complaints about the district judge should also never have been made and, having been made, should have been withdrawn long before January 2011 when the proposed amendments were drafted that reiterated them. The application is totally without merit. The order that will be made is as follows:

(1) DK's application dated 18 February 2013 for permission to amend the claim form and grounds set out in claim CO/11166/2008 is dismissed.

(2) The application was totally without merit.

Part V – Renewed Permission Applications – General Introduction

252. The three renewed applications for permission to apply for judicial review in the 2008 judicial review claims have been the subject of provisional decisions sent to DK on 18 May 2010 which were that permission should be refused in all three claims. DK applied for a hearing in order to apply for permission to amend the claim against NCC and to seek to persuade the court that permission should be granted in all three claims. DK was sent a further set of draft decisions on 9 January 2012 which again provided that permission should be refused. DK successfully applied for permission to submit further submissions and the draft judgment was withdrawn. When the court re-fixed the hearing of the renewed applications, DK was ordered to serve supplementary submissions in relation to the hearing of the renewed applications in an order was dated 25 April 2013. No further submissions were served and DK notified the court on 23 May 2013 that he did not intend to appear or be represented at that hearing.
253. In the light of this unusually prolonged and unusual procedural history, I have reconsidered each renewed application for permission in reliance on all submissions and other documents served by DK on the court since 2008. Parts VI, VII and VIII contain fresh and final decisions in each of the three renewed applications for permission to apply for judicial review.

Part VI - CO/3391/2008 – First Judicial Review Application against IPCC

A. Introduction

254. In October 2004, DK reported a district judge to NP for interfering with the course of justice. In September 2006, NP informed DK that there was insufficient evidence to prosecute anyone for the offence that DK had reported the district judge for and it was therefore closing its file in relation to the district judge. Soon afterwards DK submitted a request to NP to record a complaint against Detective Inspector Buzzeo ("DIB") who was the police officer who had directed the investigations into this reported criminality. The complaint related to alleged misconduct in carrying out those investigations. In November 2007, NP dismissed DK's complaint against DIB and soon afterwards DK appealed to the IPCC on the basis that NP should not have dismissed that complaint and in December 2007, the IPCC dismissed that appeal. DK then filed a judicial review claim seeking to have that dismissal set aside.
255. Complaints against police officers by members of the public are governed by a detailed statutory procedure. The complaint must first be submitted to the police force of the officer or officers against whom the complaint has been raised and that complaint must be recorded by that police force. If it is recorded, the police must then investigate the complaint and submit its findings to the complainant. The complainant may then appeal that decision to the IPCC if he or she is dissatisfied with the police's findings. The procedure that must be followed is explained in detail by the IPCC in statutory guidance that it has published. The relevant guidance governing DK's recorded complaint and subsequent appeal is the edition of the guidance that preceded the edition that the IPCC published in April 2010. The court has not been provided with a copy of this edition of the guidance because the IPCC has, for understandable reasons of economy, decided not to be represented at the permission hearings, that edition of the guidance is no longer available on the IPCC website and DK has not provided the court with a copy of it. I will proceed on the basis that the April 2010 guidance which is available on the IPCC website is the applicable guidance for DK's complaint. If permission is granted, the correct edition of the guidance can then be provided by the IPCC for use at the substantive hearing.
256. The first step in the statutory procedure is for a member of the public to make a complaint against an officer or officers whose conduct is alleged to consist of an act or omission amounting to unjustified, unlawful or unreasonable behaviour way towards the complainant. DK did not rely on any specific breach of a code of conduct. His complaint was to the effect that he had been adversely affected by DIB's conduct in carrying out the investigation of the district judge that was under his control of DIB. DK complained about 14 matters involved in this investigation on the basis that they were examples of unjustified, unlawful or unreasonable behaviour which is one of the grounds of complaint against a police officer provided for in the complaints procedure.
257. The procedure makes a significant and important distinction between the complaints about the reportable behaviour of individual officers and complaints which may not be recorded or proceeded with under the complaints procedure because they relate to matters of "direction or control".
258. The Police Reform Act 2002 which governs this procedure excludes any complaint or part of a complaint which is based on matters related to the 'direction and control' of a police force by the chief officer of that force or anyone carrying out the functions of the chief officer under delegated authority. The term 'direction and control' includes situations where a police officer acted in a reasonable manner in carrying out a police operation or function in accordance with the directions or under the control of a superior officer who was acting under delegated authority of the chief officer. In other words, if the complaint relates to something done which is not unlawful and which is in accordance with established police practice, the complaint may not be proceeded with as a statutory complaint against that police officer.

B. DK's complaint

259. When it was first made, DK's complaint was not accepted by NP who, in consequence, did not record it. No details have been supplied to the court as to why this initial decision was taken. However, after DK complained to the IPCC, NP changed its mind and recorded the complaint and then investigated it. The complaint in the form originally made by DK was also not supplied to the court but it was summarised in the IPCC's report of the initial complaint of non-recording as being:

"Allegations(s): Other neglect or failure of duty

Officer(s) subject of complaint: DIB, DS Spoor; DS Fairbairn^[73]

Mr Kelway (sic) wishes to complain that the police have allegedly failed to properly investigate the "suspected criminal tampering of a tape recording at a hearing at Newcastle upon Tyne County Court".

Please note: The above is only a summary of Mr Kelway's complaint."

260. The investigation into DK's recorded complaint against DIB was carried out by Detective Chief Inspector Sharman of the NP Professional Standards Department assisted by Detective Inspector Noble and it took 10 months to complete. DK provided a detailed statement to Detective Chief Inspector Sharman which, surprisingly, he has not provided to the Administrative Court, and DIB was served with a misconduct notice and provided a written response under caution. The resulting report was served on DK under cover of a letter dated 7 November 2007. The report found that each of DK's complaints was unsubstantiated.
261. 10 of DK's 14 complaints related to perceived failings by DIB to consult with him, answer his queries or provide him with updates, 2 related to the way DIB dealt with the forensic analysis of the tape recording machine that had recorded the proceeding onto the tape allegedly tampered with and 1, the most significant of the complaints, related to the manner in which DIB had instructed one of his officer to question the district judge. DK responded to NP with a lengthy complaint dated 10 November 2007 about the inadequacy of the report. His complaints may be summarised as being that:

(1) The contents of the report contained many inaccuracies, untrue statements and statements attributed to DIB which had not been provided by the district judge in his responses to the questions that he had been asked in interview.

(2) DK was denied an opportunity of commenting on a final draft of the report before it was signed off.

(3) The report was laid out in a deliberately inadequate manner in order to mask general inadequacies in the fact-finding process.

These general complaints of DK were supplemented by detailed comments about each of the 14 reasoned findings concerning each complaint that he had originally raised. This letter was not responded to or the response has not been provided to the court.

262. On 3 December 2007, DK submitted an appeal application to the IPCC against the dismissal decision dated 7 November 2007 which identified his reasons for appealing as being those set out in the letter of complaint dated 10 November 2007 which was attached. The IPCC sent DK its decision that the appeal would not be upheld. That decision was stated to have been made on the basis of all the information submitted by DK and on the balance of probabilities.
263. The decision itself summarised DK's general and specific complaints set out in his letter of 10 November 2007. Each of the 14 specific decisions were considered by the IPCC along with DK's objections to each decision. The findings were in 3 parts. 2 of the complaints were found to have been about matters that had been referred to the CPS and had received due scrutiny by that body. The renewal of these two matters by way of complaints against DIB was, therefore, unjustified and an abuse of the complaints procedure. Those two complaints were therefore rightly dismissed by NP and were not therefore considered further by the IPCC. 5 of the complaints and part of a sixth complaint were found by NP to have been direction and control matters since they pertained to the methods employed within the investigation which followed established procedures. These complaints were therefore correctly held by NP to be outside the complaints procedure and were not considered further by the IPCC. The remaining 6 complaints and the part complaint left over from this sifting exercise were each considered in detail and each finding of "unsubstantiated" was upheld by the IPCC dismissal decision.
264. DK then corresponded with the IPCC about what he considered to be the inadequacies of IPCC's decision and with the way that the decision had been laid out. This correspondence culminated with DK's letter to IPCC dated 13 February 2008 in which he complaint that the report had been compiled in a manner that was intended to hide the fact that its findings were not based on the results of proper investigations by IPCC which was responded to by the IPCC in a letter dated 14 March 2008. DK then filed the claim form on 4 April 2008 and, somewhat unusually, followed this with a letter dated 6 April 2008 setting out specific objections to the specific findings of the IPCC and with a letter before claim dated 23 April 2008 which did no more than repeat the contents of his original letter of 10 November 2007 and the letter of 4 April 2008.

C. DK's claim and grounds

265. DK's claim form and grounds are diffuse and unfocused. The specific complaints he had originally made about DIB, NP's responses to those complaints and the IPCC's decisions in relation to each one of those responses are not addressed by DK's claim form and grounds document. Instead, there is a long and general series of assertions about the district judge's alleged tampering with the tape followed by a conclusion that the IPCC investigation lacked thoroughness, that it was heavily biased towards the reports of NP's officers because these were uncritically accepted, that it was also biased in paying uncritical respect to the actions and attitude of DIB and that it contained many inaccuracies. The remedies that were sought that remain live were that the IPCC's decision of 20 December 2007 dismissing his appeal should be quashed, that the IPCC should be ordered to re-interview the district judge under caution regarding the statements he made during the hearing he conducted in court on 27 January 2004 and that the IPCC should by ordered to carry out the investigation of his complaints about DIB again from scratch. The claim form does not make it clear whether the order that is sought is that the IPCC should review NP's dismissal decision or, which is more likely, that NP should re-investigate his original complaints against the district judge.

D. DK's draft amended grounds

266. DK submitted to the Administrative Court a document entitled "Revised detailed statement of grounds for the claim" dated 8 January 2011. No application was issued seeking permission to amend the grounds document and no informal submission or application has since been made to explain why the amendment is being sought and to make submissions as to why the claim form should be allowed to be amended three years after the original claim was filed.
267. The document states that the claimant has revised his "statement of grounds for the claim" and his "statement of facts" so as to simplify the issues and hence to bring out more clearly the essential matters for consideration by the court. The changes that the amendments seek to make are:

(1) They add as a ground this ground:

"The issue of paramount importance is that evidence available to the IPCC which substantiates the fact that a crime was committed [by the district judge] and that [the district judge] lied to the police appears to have been entirely ignored by the IPCC.

(2) The evidence that is said to have been "entirely ignored" is listed and includes DK's and the district judge's formal statements made to the police, correspondence between DK and the two legal representatives of the defendant's solicitors who attended the hearing and those representatives' detailed notes made at the hearing and the interviewing Detective Sergeant's case summary submitted by NP to the CPS for the purpose of obtaining the CPS's charging decision.

(3) The amendments include an assertion that the IPCC failed to identify that two allegedly vital items of information were not supplied to them and failed to obtain them. These were a report of DIB that was submitted to the CPS and the district judge's notes presumably taken at the hearing;

(4) The IPCC failed to consider the disparity between the facts as interpreted by DK and the facts "as they (i.e. the IPCC) saw them" and to identify and address those discrepancies as part of its decision.

(5) The sole remedy now sought is that:

"The IPCC to be asked to consider again whether [DK's appeal] to that body [the IPCC] regarding complaints against NP should be upheld."

This remedy replaced the relevant remedy previously sought which was for:

"Mandatory orders to be issued by the Administrative Court that the investigation of the complaints be carried out again from scratch."

268. The effect of this amendment, if it is allowed to be made, is that the remedy of quashing the IPCC decision and the ordering of a further investigation and decision is claimed on two new further grounds to those previously pleaded. These are to the effect that the decision is flawed and vitiated by:

(1) The IPCC failing to take account of and make findings and reach conclusions that critical evidence had not been supplied to it and also failed to take account of the "substantiated fact" that the district judge had lied to the police and was complicit in a crime that was committed involving tampering with a tape that was recording the proceedings at his hearing.

(2) The IPCC was biased as demonstrated by its unquestioning support for the police's point of view.

269. DK does not appear to have served this proposed amendment on the IPCC at any time and has never issued a formal application supported by a witness statement seeking permission to amend that explains why the original grounds were not issued with the amendments included in them and why the proposed amendments were not put forward until January 2011 rather than being put forward at the earliest possible time after the need to make the amendments was known. A further difficulty is that the district judge, who is directly affected by the amendment, was not joined as an interested party and served with a copy of the proposed amendment.
270. I will not allow DK to make the proposed amendment and I will not consider his renewed application for permission on the basis that his proposed judicial review contains the proposed amendment in so far as its terms did not part of his original grounds. I do so for these reasons:

(1) The defects in procedure that I have outlined are of a substantial nature. The IPCC, as defendant, is entitled to know of the terms of any proposed amendment that adds two further grounds setting out the alleged deficiencies in its decision-making process, particularly when those grounds have not previously been advanced and which go to the heart of that process. Similarly, the district judge, who is accused in terms of having been complicit – or even of having himself committed – a serious crime amounting to the perversion of the course of justice is entitled to be joined as an interested party. Both the IPCC and the district judge have, by these omissions, been denied the opportunity of participating in the decision of whether to permit these new grounds to be argued and whether permission to apply for judicial review on those new grounds should be granted.

(2) The proposed amendments were not sought at the earliest possible opportunity once the suggested need for them became clear and the knowledge of their existence was first known to, or should have been known to, DK. Instead, the proposed amendments were served informally on the court about three years after they could and should have been formulated and no formal application seeking permission to amend has since been issued.

(3) The new grounds had not been put forward as a complaint about DIB to NP in the first place even though they included matters which expanded those complaints that had been put forward, that element of the new grounds had not, in consequence, been investigated by NP and they formed no part of DK's appeal to the IPCC or to its consideration of that appeal.

(4) The new ground could only be advanced by way of a separate complaint to NP, a separate appeal process if necessary following NP's recording and investigating that complaint and then deciding it and a separate claim seeking judicial review if necessary of the IPCC's separate decision in that separate appeal if it could be shown that IPCC's decision in relation to that new appeal was flawed as being unlawful or Wednesbury unreasonable.

(5) It is now clear, as explained at length in this judgment and in the related Cart and disclosure judgment, that there is no evidence that the district judge or anyone else committed any crime or lied in any way to the police or anyone else about matters raised at the hearing in January 2004 so that the whole basis of the proposed amendment disappears. The new allegations are in fact without any foundation and to put them forward amounts to a vexations and abusive attempt to use the judicial review process for an ulterior purpose. The proposed new grounds are totally without merit.

(6) There is no prospect, and it would be against the public interest, for there to be a consideration of IPCC's decision-making process on the new grounds now sought to be added by amendment. The underlying decision of the IPCC that is sought to be quashed on these new grounds was taken nearly 5½ years ago and involved consideration of and an investigation into a crime that, if it occurred at all, took place 9 years ago and whose possible existence has been known about for all but a few weeks of that 9-year period.

E. Decision

271. Delay. The original filing of the claim was on 4 April 2008 and it related to a decision taken on 20 December 2007. CPR 54.4 requires the claim to be filed promptly and, at the latest, within 3 months of the decision complained of being made. Given that the claim as originally pleaded is based on the terms of DK's original response to NP's decision which he sent to NP on 10 November 2007, there was no justification in his delaying filing the claim beyond a 4-week period after receipt of the IPCC decision. The claim should therefore have been filed by about 20 January 2008 but was in fact filed some 2½ months later.
272. In his claim form, DK asserts that he was not strictly able to file his claim at the date it was filed due to his awaiting disclosure of documents from NP that had not by the date of filing been supplied to him. That does not excuse or explain the delay in filing. The judicial review must be conducted by reference to the IPCC's state of knowledge of the complaint at the date the decision was made. Any additional material not known to DK or the IPCC is irrelevant to the claim based on the decision being challenged or, if relevant, must be added by amendment to the claim after it had been filed or made the subject of a fresh judicial review.
273. Equally, DK was not entitled to wait, as he asserts, to a date after the receipt of the IPCC's letter of 14 March 2008 before filing his claim. The letter he refers to, in its relevant part, merely confirms the earlier denial by the IPCC of a complaint that the decision is poorly laid out so as to amount to "deliberate obfuscation". That complaint was always groundless and the claim should have been started without it having been made let alone responded to.
274. Merits of complaint. Interview under caution. The principal original complaint was that the district judge was not questioned in line with a format that DK suggested should be used in a letter he sent to the DIB on 8 September 2005. This format included the firm suggestion that the district judge should be interviewed under caution and in an appropriately rigorous manner in view of the seriousness of the allegations against him. DK sought to justify the sending and contents of this letter as being intended to assist the investigating officer in matters concerning civil proceedings about which DIB had admitted little knowledge of.
275. There were two responses to this complaint. The first was provided by NP in reliance of DIB's explanation about the method of interviewing the district judge. DIB had described his method of questioning the district judge to the NP investigating officer and had explained that he had adopted his described format and questioning technique as being "to an appropriate manner". He also had explained that he had not interviewed the district judge under caution because there had been insufficient evidence to provide reasonable grounds to warrant such an approach. The second was provided by the IPCC appeal decision which stated that the complaint pertained to the methods employed within the investigation which were matters of direction and control and not matters of performance of duty or misconduct. The complaint was therefore one that should have been dismissed as being outside the jurisdiction of the complaints procedure.
276. DK has never sought to counter the argument that this complaint, and several other complaints, are direction and control matters. He dismissed the investigator's acceptance of DIB's explanation for the method of questioning concerned as being the uncritical acceptance by the investigator of DIB's unreasonable explanation which DK described as the DIB's failure to insist that the district judge was interviewed under caution. He asserted that DIB had ignored the fact that three witnesses (himself and the two legal representatives of the defendant) could testify to the fact that the district judge's recollection of the circumstances of the hearing were at odds with their own written accounts.
277. The original complaint and the appeal on the grounds that NP's decision as to the complaint was in error were both misconceived. The basis upon which the complaint should be decided was whether the practice or behaviour of the police officer being investigated as a result of the complaint was in line with accepted police practice and/or established practice provided by guidelines and other formal advice issued to the police. Since the investigation into the complaint was carried out by an experienced police officer, that officer's views as to matters of practice and as to what falls within the rubric of direction and control must be given considerable weight since these views are those of an experienced practitioner of policing and police methods. There is clearly an acceptable operational practice, sanctioned by DIB's Chief Officer under delegated authority that a witness or other person being interviewed in the course of an investigation of possible criminal conduct should not be interviewed under caution unless there is sufficient evidence to provide reasonable grounds for suspecting that individual of having committed a criminal offence. Here, DIB did not instruct the use of the caution because he, and the interviewing officer, did not believe that there was sufficient evidence to provide reasonable grounds for that approach. That belief is overwhelmingly supported by the evidence which does not reveal any criminal offence has having occurred. Moreover, DIB's decision that the district judge should not be interviewed under caution is itself one taken as a result of the direction and control of his Chief Officer under delegated authority given the direction that a caution should only be used in conjunction with an interview when reasonable grounds exist for such a method of interviewing. Thus, DK's original complaint about DIB and his appeal to the IPCC that that complaint was dismissed by NP were both misconceived.
278. CPS-related complaints. Two complaints were considered by the IPCC to amount to an abuse of process. This was because the CPS, who had the responsibility for deciding whether the district judge should be charged on the basis of the evidence then available, had decided that he should not be charged because there was no evidence that the tape had been tampered with or that any crime had been committed. It was therefore reasonable for the IPCC to conclude that DK's complaint that DIB had failed to arrange for appropriate forensic evidence to be obtained was an abuse of process. DK had contended that DIB should have arranged for a forensic examination of the tape recording machine but he failed to do so. However, whatever might have resulted from such an examination could not have influenced the CPS's decision not to charge the district judge since there was no conceivable way that the results of a forensic examination of the tape recording machine could have turned the CPS's decision not to charge into a decision to charge given the weight of all the available evidence which showed that no crime had been committed. Thus, there was no basis for contending that DIB had misconducted the investigation by not obtaining forensic evidence of the tape recording machine since the CPS had concluded that there was no evidence that any crime had been committed so that the results of such an examination would have been irrelevant and unnecessary whatever they might have revealed.
279. The second complaint could and should have been dismissed on both the direction and control ground and on the ground that it had never been referred to NP and had not been considered in the IPCC decision now being challenged.
280. DK's other complaints were misconceived. He had no right as a member of the public affected by a possible crime or criminal behaviour to advise a police officer whether or not to use a caution and it was out of order for him to suggest a method or mode of questioning. DIB was correct in disregarding DK's suggestions and to form his own independent and professional view of the available evidence.
281. Direction and control complaints. The six complaints dismissed by NP that the IPCC then found to be matters of direction and control and therefore outwith the complaints procedure were all clearly of that kind. Furthermore, NP's finding that the complaints were unsubstantiated was based on the evidence and was rationally based.
282. Factual complaints. The remaining complaints were dismissed on the grounds that they were based on the assumption that a crime had been committed when the evidence showed that no crime had been committed. Furthermore, DK did not produce any factual evidence – as opposed to unsubstantiated assertions – that the events complained about amounted to a reportable matter or that what DIB did not amount to reasonable policing. Finally, DK had no right to be consulted about, or to be provided with the opportunity to comment on, decisions taken in the investigatory process and he had no legitimate complaint about his complaint that there was a failure to consult him.
283. These complaints were therefore shown to have no factual basis, had been reasonably found to be unsubstantiated by NP and were reasonably dismissed by the IPCC.

31. Grounds withdrawn or never pursued. DK originally complained to NP about a second alleged incident of tampering with a court tape. On this second occasion, the tape in question had recorded the proceedings before a deputy district judge on 26 August 2004. The tape had, as soon became clear, not been tampered with. Instead, it had run out before the hearing had been concluded and had not been replaced due to oversight. It had also initially been thought that there had been a recording malfunction on part of the tape but what was heard as malfunctioning was subsequently found to be background noise that was found on the part of the tape that followed the point where the recording had cut out. The police recorded the complaint but soon afterwards refused to investigate it further since DK was unable to persuade the officers investigating it that it disclosed any evidence of potential criminal conduct.

32. DK then complained to the IPCC about NP's failure to investigate this complaint fully and the IPCC dismissed that complaint. He then included a complaint about the IPCC's investigation of this matter in his judicial review claim but then withdrew it from that claim. He now contends that he is not pursuing an application for judicial review of this IPCC decision but on the basis that he may subsequently resurrect it once further investigations that he claims to be undertaking are complete.

284. DK may not proceed in that way. Since he withdrew that part of his judicial review claim that related to investigations about, or failures to investigate, criminal conduct in relation to this second tape, the judicial review claim relating to that second tape has been withdrawn for good and it may not be renewed nor may it form part of a subsequent judicial review claim.

F. Conclusion

285. The application should be dismissed on the grounds that it was filed out of time, that there were no grounds for extending time and because the complaint had no prospects of succeeding. Furthermore, the proposed amended grounds cannot not be relied on or taken into account. None of the IPCC's 14 appeal decisions upholding each of the 14 NP decisions rejecting DK's 14 specific complaints of misconduct by the investigating officer were unlawful, irrational or Wednesbury unreasonable and were instead clearly correct and fully within the IPCC's jurisdiction and decision-making powers. The judicial review claim in relation to an allegation of tape tampering with a tape used to record proceedings on 26 August 2006 has been withdrawn and may not be resurrected. The renewed permission application is totally without merit.

Part VII - CO/4651/2008 – Second Judicial Review Application against IPCC

A. Introduction

286. The background to this claim for judicial review is the two applications made by DK to NP for disclosure of documents under the Freedom of Information Act 2000 ("FOIA"). I have set out this background in the Cart judgment in CO/2904/2013 as follows:

193. DK's first application was an information request dated 23 November 2006 for:

" … reports by DS [name supplied] and DS [name supplied] regarding a complaint made by me against [the district judge] … of Newcastle Combined Court. I would also be obliged for copies of all forensic reports and all correspondence between [NP] and Newcastle Combined Court which relates to my complaint."

It is to be noted that the five witness statements that remain in issue were not included in that request. NP informed DK on 24 November 2006 that his request related to his personal data and refused it as absolutely exempt under section 40(1). NP also advised DK that it would process the request under the DPA if he paid the appropriate fee^[74].

194. DK responded on 4 December 2006 by reapplying under the FOIA and stating that his request did not relate to personal data held by NP about him since it related to a complaint made by him. The request was therefore not a DPA data subject request. NP, without giving a reason for not sticking to its refusal of 24 November 2006 changed tack and issued a decision dated 30 January 2007 stating that it would treat DK's second request under the FOIA. NP refused the request under the FOIA and its' refusal notice stated that this refusal was based on the information being exempt under sections 30(1) and 30(2) of the FOIA and that the exemption would not be disapplied because the public interest in withholding the information outweighed the public interest in disclosing it. According to DK, he was subsequently informed by someone within the NP that NP had changed its mind on receipt of the second request for information and had decided that it could proceed under both the DPA and the FOIA and that DK was entitled to choose which regime to apply under.

195. NP was in error in dealing with this second request for information having just dealt with it and refused it unless, which was not provided, it had a good reason for doing so. It was also in error in allowing DK to choose which statutory regime he could apply under since the decision as to which regime it should proceed under was its own. Thus, without good reason to disregard the first decision, NP should have stuck to its guns and declined to deal with the second request at all or to have dealt with it in exactly the same way as it dealt with the first request. Had it done so, DK's only remedy would have been to apply again under the DPA or to complain to the IC that the refusal notices were not in accordance with the requirements of Part I of the FOIA because the refusal decisions to treat the requests as being data subject request under the DPA was Wednesbury unreasonable that they were based on an error of law or was so unreasonable that no properly informed public authority could have reached them if acting rationally^[75].

7. DK's complaint to the IC and the IC decision

194. DK's complaint to the IC. DK was dissatisfied with the part of NP's second refusal notice which declined to disclose the information sought because it had decided to apply the section 30 exemptions having balanced the public interest in maintaining the exemptions against the public interest in disclosing the documents^[76]. He first asked NP to review its decision under section 30 in a request of the FOIA dated 31 January 2007 and, on 2 March 2007, NP upheld its earlier section 30 refusal."

287. DK immediately took up with NP what he saw as undue delay in dealing with his request for information. He complained about what he saw as NP deliberately delaying providing the decision with respect to requests for information under the FOIA that had been made in November and December 2006. He had asked for a review of the refusal decision of 24 November 2006 and he did not hear that the refusal decision had been maintained until 2 March 2007 when he was finally notified of NP's confirmation in the review decision of the refusal decision of 27 January 2007.
288. DK's complaints about delay were investigated by a Superintendent of NP who wrote to DK on 9 and 21 March 2007. The Superintendent accepted that there had been delay between 28 December 2006 when the decision not to disclose the requested information was taken and 27 January 2007 when DK contacted the department to enquire why he had not had an answer to his review request. The letter explained the reasons for the delay and it also highlighted the failures of the department's administrative procedures that had led to this delay. The Superintendent tendered his sincere apologies with regards to those failings.

4. DK was not satisfied with this apology and he made a formal complaint to NP about the delays in a complaint dated 22 March 2007. The complaint was a general complaint made against NP as a Police Force rather than being made against particular named police officers. This complaint was responded to on 2 November 2007. This summarised the background and referred to the letters of apology dated 9 and 21 March 2007 and explained that although DK's complaint had been dealt with as a recordable complaint under section 12(2) of the Police Reform Act 2002 as a complaint about the unreasonable behaviour of the police, the matters complained about fell with the ambit of a direction and control matter since they were matters of force policy, management or tactics and no issue of individual misconduct arose.

5. DK appealed against the complaint not being recorded in a notice of appeal dated 28 November 2007. His grounds of appeal were that the complaint did not relate to a matter of direction or control but to "inefficiency, deviousness, obstruction and poor reporting." He contended that there had been a deliberate attempt by NP which continued to that day of frustrating his attempts to obtain proof that NP's investigations of complaints against a member of the judiciary had been significantly compromised. That campaign included the official directly responsible for handling the FOIA request had:

"… deliberately delayed sending information to me about her decision allegedly made on 28 December 2007, lied to [the Superintendent] about having sent a letter to me on that date and instructed [her colleague] to send inappropriate and misleading emails to me on that date."

6. The IPCC informed DK in a decision dated 7 December 2007 that it had decided not to uphold the appeal on the grounds of direction and control. This was elaborated on in a letter dated 13 December 2007 which maintained the previous decision on the grounds that the complaint appeared to be aimed at an allegation of deliberate delay by NP in general rather than being a specific allegation of misconduct by an individual or individuals within NP.

7. DK replied in a letter dated 19 December 2007 which sought a review of the IPCC's decision and stated:

"You say that my complaint about deliberate delay appears to be aimed at the force in general rather than a specific allegation of misconduct against one or more individuals within the police force.

A proper study of the correspondence you have been provided with should allow you to deduce that my complaint is against Miss [named officer] [NP's Data Protection and Disclosure Advisor] and [her colleague] [named officer]. These are the only officials who corresponded with me before the decision was made on 30 January 2007 …".

8. The IPCC replied on 11 January 2008 pointing out that the complaint that had been made was not a specific complaint but was one against NP. The letter maintained IPCC's decision not to record the complaint made to NP.

9. DK then made another complaint to NP citing the Data Protection and Control Officer as the person responsible for the delay in dealing with his request for information for two months after it was first requested on 6 December 2007. The complaint alleged that that officer had never sent a letter dated 28 December 2006 and that she either lied that she had sent it when she had not or she had wholly failed to manage her duties in a proper and reasonable manner.

10. On 14 February 2008, NP wrote acknowledging receipt of the complaint and informing DK that a senior officer had been appointed to investigate it. On 18 February 2008, a Detective Superintendent wrote to DK stating that in his view the complaint was a duplication of the complaint that DK had previously made and that an application was to be made to the IPCC to dispense with the requirement to investigate it. The application was made and, on 31 March 2008, the IPCC wrote to DK stating that it had granted NP the requested dispensation on the grounds that the complaint was very much the same one has one which had already been dealt with and it was repetitious and there was therefore no statutory requirement for further investigation.

289. DK filed this claim on 15 May 2008 and was permission was refused by Dobbs J in a decision dated 13 August 2008. The claim was brought against the IPCC with NP as interested party. The claim seeks a rescission of the IPCC's decision dispensing the requirement that NP investigates the complaint.

B. Discussion

290. DK accepts that the second complaint is identical to the first save that an individual officer is named. He asserts, with some justification, that it was necessary to name an officer involved in the alleged deception and delay in order to overcome the technical difficulty that the complaints procedure cannot be used to investigate a complaint against the police force as a body. If that was the defect in the first complaint, DK's ploy would have successfully transformed an incompetent to a competent complaint. However, the fundamental difficulty about both complaints is that they are, or are said to be, direction and control complaints. Thus, the real purpose of the judicial review and the only purpose that it was brought to achieve, was to show that the complaint is not a direction and control matter. That issue arose in the first complaint and DK could and should have instituted judicial review proceedings seeking to quash the first decision dated 7 December 2007. By starting this judicial review claim on 15 May 2008, DK is over 2 months out of time.
291. Delay. The claim is, therefore, out of time and no application to extend time has been sought. There is no justification for this delay. Permission is refused on this ground.
292. Other reasons. There is no justification for DK's assertion that the decision about the supply of information was delayed from 27 December 2006 until 30 January 2007 because of a deliberate and deceitful decision to procrastinate. NP's explanation is that the delay from 28 December 2006 until 30 January 2007 was due to administrative failures within the department. That reason is sufficient to show that the failing was not that of the individual cited but rather of the administrative procedures that had been put in place for the department to answer the somewhat difficult and technical questions arising out of FOIA and DPA requests and the answers to be given to those requests in general which were applied to answering DK's requests in particular. That shortcoming or those shortcomings fall within the somewhat nebulous definition of direction and control so that the decision to dispense was wholly justified as was the decision that the complaint fell outside the statutory scheme and was not notifiable and was properly reclassified.
293. Conclusion. Permission is refused both on delay and because the claim has no reasonable prospects of success.

Part VIII - CO/11166/2008 – Judicial Review Application against Newcastle Combined Court

A. Introduction

294. This claim is considered in the form in which it was originally set out in 2008 since I have already considered and refused DK's application to amend the claim. In its original form, the claim seeks judicial review of the decision of Judge Walton dated 13 June 2008 sitting in NCC to refuse DK permission to appeal a decision of District Judge Loomba dated 7 April 2008 refusing to review the final costs assessment of District Judge Park dated 21 November 2007. The claim was filed in the Administrative Court on 7 November 2008 at least 7 weeks out of time. Stadlen J refused permission to apply for judicial review in a decision dated 24 March 2009.
295. Delay. The claim was filed nearly 2 months out of time with no application to extend time and no explanation for the delay. Permission to extend time is refused.
296. Law. I must first start by identifying what judicial review entails when complaints are made of county court decisions and their associated administrative processes since DK appears to have completely misunderstood the nature of judicial review in this area. He has been threatening judicial review since 2003 and by those threats succeeded in delaying the costs assessment and enforcement process for nearly five years. The present judicial review proceedings were started five years and five months after Judge Moir's refusal of permission to appeal the reinstatement decision of the district judge. I can summarise when judicial review could be applicable to county court proceedings in this way:

(1) It is only very rarely that a judicial decision of the county court, or a tribunal in the tribunal structure, may be the subject of judicial review. This is because the county court or a tribunal in the tribunal structure (whether a First-tier Tribunal or the Upper Tribunal) has its own statutory in-built hierarchy of appeals, reviews and judicial safeguards.

(2) In the case of the county court, these safeguards are provided by a system of internal review of decisions and, more significantly, by an appeal structure that allows one arguable appeal of every first decision and a second appeal from that appeal in cases where a fundamental miscarriage of justice has, or may have, occurred.

(3) Judicial review is only potentially available if a county court or tribunal decision that is sought to be challenged:

(a) Is no longer open to an appeal or review;

(b) Has not been but can no longer be the subject of proper judicial scrutiny;

(c) Is one which was clearly reached in excess of jurisdiction or has resulted from gross procedural error or a fundamental and exceptional miscarriage of justice; and

(d) Is additionally a case which it is in the public interest to review by way of judicial review.

(4) It follows that it is only possible to seek judicial review of a county court decision in an exceptional case involving a refusal of permission to appeal which cannot be challenged within the hierarchy of appeals applicable to that court and which fulfils the four-fold test set out above.

297. This summary can best be understood by reference to the line of cases involving judicial review of the County Court that starts with R (Sivasubramaniam) v Wandsworth County Court, continues with Gregory v Turner and culminates with R (Strickson) v Preston County Court^[77] and to the recent decision of the Supreme Court in Cart v Upper Tribunal^[78] that is concerned with judicial review of the Upper Tribunal.
298. An application for judicial review must be started by serving a claim form on the Administrative Court as soon as reasonably possible after the decision being challenged has occurred and no later than three months thereafter. It is only in very rare cases that it is permissible to delay starting a case on the grounds that further information is needed or is being sought. There is no rule that requires a person to delay starting judicial review proceedings concerned with a lower court decision until any ancillary proceedings, such as costs applications, have been disposed of.
299. A court within the county court structure of courts should not delay or adjourn a hearing, trial or decision on account of threatened or actual judicial review proceedings even if such proceedings have the potential for unscrambling that decision or any decision on which it is dependent. A significant number of circuit judges, district judges and deputy district judges appear to have been persuaded by DK to infringe this principle, no doubt due to an excessive deference to his status as a litigant in person and to a lack of knowledge of and concerns about the Administrative Court.
300. Discussion. In this case, the only decision relied on which met the first threshold condition of being one which had shut out a first appeal within that court's appeal structure was, possibly, Judge Walton's decision of 13 June 2008 refusing permission to appeal District Judge Loomba's decision dated 7 April 2008 refusing to review the final costs assessment of District Judge Park dated 21 November 2007. The decision of Judge Walton was only barely susceptible to judicial review since there could have been, but had not been, an application to appeal District Judge Park's original costs assessment decision. Instead, DK sought to have that decision reviewed and both District Judge Loomba and Judge Walton considered that that was the wrong procedure (as well as regarding any form of appeal or review as being hopeless and misconceived).
301. Conclusion – delay and substance. It follows from these considerations that:

(1) This judicial review claim is considered in the form in which it was originally set out in 2008 since I have already considered and refused DK's application to amend the claim. In its original form, the claim seeks judicial review of the decision of Judge Walton dated 13 June 2008 sitting in NCC to refuse DK permission to appeal a decision of District Judge Loomba dated 7 April 2008 refusing to review the final costs assessment of District Judge Park dated 21 November 2007. The claim was filed in the Administrative Court on 7 November 2008 at least 7 weeks out of time. Stadlen J refused permission to apply for judicial review in a decision dated 24 March 2009.

(2) The claim was filed nearly 2 months out of time with no application to extend time and no explanation for the delay. Permission to extend time is refused.

(3) An application for judicial review must be started by serving a claim form on the Administrative Court as soon as reasonably possible after the decision being challenged has occurred and no later than three months thereafter. It is only in very rare cases that it is permissible to delay starting a case on the grounds that further information is needed or is being sought. There is no rule that requires a person to delay starting judicial review proceedings concerned with a lower court decision until any ancillary proceedings, such as costs applications, have been disposed of.

(4) A court within the county court structure of courts should not delay or adjourn a hearing, trial or decision on account of threatened or actual judicial review proceedings even if such proceedings have the potential for unscrambling that decision or any decision on which it is dependent.

(5) Judicial review is only potentially available if a county court or tribunal decision that is sought to be challenged:

(a) Is no longer open to an appeal or review;

(b) Has not been but can no longer be the subject of proper judicial scrutiny;

(c) Is one which was clearly reached in excess of jurisdiction or has resulted from gross procedural error or a fundamental and exceptional miscarriage of justice; and

(d) Is additionally a case which it is in the public interest to review by way of judicial review.

(6) The only decision relied on which met the first threshold condition of being one which had shut out a first appeal within that court's appeal structure was, possibly, Judge Walton's decision of 13 June 2008 refusing permission to appeal District Judge Loomba's decision dated 7 April 2008 refusing to review the final costs assessment of District Judge Park dated 21 November 2007. The decisions of Judge Walton and District Judge Loomba were only barely susceptible to judicial review since there could have been, but had not been, an application to appeal District Judge Park's original costs assessment decision. The original costs decision dated 21 November 2007 could have been, but was not, made the subject of an application for permission to appeal. Had DK wished to challenge the costs decision, he should have made that application and not proceeded by way of an application for a review of that decision.

(7) Instead, DK sought to have that decision reviewed and both District Judge Loomba and Judge Walton correctly considered that that was the wrong procedure and also regarded any form of appeal from or review of that decision as being hopeless and misconceived.

(8) These two decisions are not ones that had been reached in excess of jurisdiction or had resulted from gross procedural error or a fundamental and exceptional miscarriage of justice and neither were decisions which additionally were decisions which it was in the public interest to review by way of judicial review.

(9) For these reasons and for the reasons set out in paragraphs 151 – 176 in Part IV above, the claim has no prospect of success.

(10) Permission is refused on both grounds.

(11) The application is totally without merit.

302. For these reasons and for the reasons set out in paragraphs 151 – 176 in Part IV above, the claim has no prospect of success. I therefore refuse permission on both grounds. The application is totally without merit.

Part IX – General Civil Restraint Order

303. I gave DK notice that I would consider imposing a general civil restraint order on him if I dismissed his applications. I have now done so and have found that five of them are totally without merit. I have also found that DK has conducted a campaign of harassment and disruption against the Administrative Court in the period from March 2013 until the present which has been conducted in flagrant breach of the CPR. He has been subject to many previous findings of bringing applications that are totally without merit during the course of the proceedings in the NCC and was the subject of 2 civil restraint orders during the course of this litigation. He acted in flagrant breach of one of these by making 4 applications in April 2008 without first obtaining permission. The order dismissing one of these applications is the subject of one of the applications in case CO/11166/2008.
304. For these reasons, it is both appropriate and necessary to impose a general civil restraint order covering all courts in the High Court and in all County Courts for a period of 2 years from the date of the order in these applications. This will prevent DK from starting any claim or case or issuing any application in any claim or case without first having obtained the permission of the judge in charge of the Administrative Court or has appointed alternative.

Part X – Overall Summary and Orders and Further Steps

A. Overall Summary and Orders

305. The orders that are made in consequence of Parts III, V, VI, VII, VIII and IX of this judgment are as follows

(1) Case No: CO/3391/2008..

There are two applications in this claim:

(i) The renewed application dated 19 August 2008 applying for permission to apply for judicial review.

(1) The application is dismissed.

(2) The application is totally without merit.

(ii) The application dated 24 April 2013 applying for specific disclosure of three statements to be provided by Northumbria Police.

(1) For reasons set out in the judgment in the judgment in Kelway v Upper Tribunal dated 20 August 2013 [2013] EWHC (Admin) the application under CPR 31.17 and section 7(9) of the Data Protection Act 1998 is dismissed.

(2) Case No: CO/4651/2008.

There is one application in this claim:

(i) The renewed application dated 23 August 2008 applying for permission to apply for judicial review.

...1) The application is dismissed.

(2) The application is totally without merit.

(3) Case No: CO/11166/2008.

There are two applications in this claim:

(i) The application dated 18 February 2013 seeking permission to amend the claim form:

(1) The application is dismissed.

(2) The application is totally without merit

(ii) The renewed application dated 3 April 2009 applying for permission to apply for judicial review.

(1) The application is dismissed.

(2) The application was totally without merit.

(4) Application dated 26 June 2013.

This application was issued in each of the three judicial review claims: CO/3391/2008, C)/4651/2008 and CO/11166/2008.

(i) The application that HH Judge Anthony Thornton QC should recuse himself forthwith and 8 further applications.

(1) The recusal application and all 8 further applications are dismissed.

(2) The applications are totally without merit.

(5) Extempore judgment and order dated 24 May 2013.

This judgment was delivered and the order was issued in each of the three judicial review claims: CO/3391/2008, C)/4651/2008 and CO/11166/2008.

The judgment reviews the history of the judicial review proceedings, sets out the reasons for not adjourning any of them and for the decision to continue with the hearing, that the applications will be decided on the basis of the contents of all documents filed with the court since 2008 relating to the outstanding applications in these judicial review claims, to reserve judgment and to hand down the judgments in relation to each of them when those judgments have been finalised.

(6) Civil Restraint Order.

Having given prior notice to DK that a General Civil Restraint Order was to be imposed.

A general civil restraint order is imposed in all divisions of the High Court and in every County Court for two years starting with the date of the order dismissing these applications.

B. Further Steps

306. Charging orders. There still remain for enforcement the charging orders and orders for sale that have been made to enable Canon to realise the costs orders that have been made in its favour. Each costs order in excess of £5,000 will now carry several years' interest at the judgment rate which needs to be quantified and paid. There may be outstanding costs orders requiring assessment but the time for such assessment may well have long since passed.
307. Outstanding matters in the County Court. There remains for finalisation the sale of DK's house pursuant to the Orders for Sale already made if Canon still wish these to be pursued and for the finalisation of a number of outstanding costs orders if Canon wishes to pursue these. These matters should be attended to as soon as reasonably possible if Canon wish to pursue them. Any outstanding costs assessment would require the permission of the county court to be pursued so long after the relevant cost order or orders were made.
308. Further claims by DK. There are no further judicial review claims or other court proceedings that DK may now bring since any such claim is now long since time-barred and out of time with no prospect of a successful application to extend time.

HH Judge Anthony Thornton QC