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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of Syvret [2013] JRC 263 (10 December 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_263.html Cite as: [2013] JRC 263 |
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Civil - Application to file letter before action.
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Before : |
W. J. Bailhache, Esq., Q.C., Deputy Bailiff sitting as a Single Judge |
In the MATTER OF THE application of stuart syvret
judgment
the deputy bailiff:
1. The Bailiff's Judicial Secretary received on 3rd December a letter from Mr Stuart Syvret ("the applicant") to which is attached a document, the description of which is not easy. It is headed "Letter before claim/action & Order of Justice in respect of:- Human rights; Tort; Judicial Review; Urgent Injunctive Relief", and it appears to be addressed to senior management at Her Majesty's Prison La Moye, the Her Majesty's Prison La Moye Board of Visitors and the Home Affairs Minister. This judgment contains my reasons for not signing the document.
2. To the extent that the document describes itself as a Letter before claim/action, it needs no attention from the Bailiff's Judicial Secretary or from the Court. It is not the function of the Royal Court to issue letters before action. That is a matter which litigants, whether acting in person or through their lawyers, should tackle directly with those against whom the proceedings are contemplated. Accordingly, no action has been taken in that respect.
3. Before I turn to the remaining matters, I record that I have considered whether or not there is any conflict of interest which prevents me from dealing with the matters which are contained in the document which has been sent to me. I do so not least because I am aware that the applicant routinely challenges judges in matters concerning him on the basis they have such a conflict that they ought not to sit on his case. The document sent to the Bailiff's Judicial Secretary contains a number of assertions in respect of the role of the Jurats. At paragraph 78, it is said:-
"The Jurats know - that they know - that they are colleagues and friends with - expressly - directly - centrally - conflicted and involved parties - for example, Philip Bailhache, Michael Birt, William Bailhache, Tim Le Cocq, Julian Clyde-Smith - and others. All of the Jurats know that - yet they persist in failing to recuse from these cases - and continue to produce suppressive, corrupt, abusive judgments against me and others."
4. The nature of the allegation here is that the Jurats are colleagues and friends with persons, including me, who are said to be "conflicted and involved parties".
5. I am clearly not a party to any of these intended proceedings, nor to any of the related proceedings to which reference is occasionally made in this document nor am I mentioned, except at paragraph 78 (supra). It is true that at different times the office of Attorney General has been party to proceedings involving the applicant, and that I was Attorney General at the time when some of the relevant criminal proceedings were commenced. None of these however is relevant, either to the matter which has resulted in the Royal Court finding the applicant to be in contempt and sentencing him to three months imprisonment, or to questions involving the administration of the prison and/or complaints against the Prison Board of Visitors. It is not correct therefore to say that I am an involved party to the intended litigation nor is any relief sought against me.
6. It is true that I have a professional relationship with the Jurats, with whom, from time to time, I serve in the Royal Court. I have from time to time socialised with some of them. I would not normally sit in a case in which their personal integrity or veracity comes under challenge.
7. For reasons which will become apparent following the analysis of the document which I have been sent, I do not think this inhibits me from taking such limited decisions as I am presently taking in relation to that document. These are procedural decisions. Furthermore a judge should not recuse himself from doing his duty as a judge unless he has a conflict of interest. I add that in this case, it is desirable that the present question is considered by a local judge who is familiar with how and why the Royal Court Rules are in the form they are. I also add that although the judicial landscape may have been the subject of some different shading following the introduction of the Human Rights (Jersey) Law 2000, there remains force in the observations of Southwell JA in States Greffier v Les Pas Holdings Limited [1998] JLR 196 where he said at page 203 line 37 et seq:-
8. It may be suggested by the applicant that:-
(i) I have a personal animus against him. I accept that he may think that but I do not have any such animus. All decisions I have made in the past which concern him have been made on a professional basis without favour, hatred or partiality, as the traditional expression puts it.
(ii) The impartial observer may think I have an animus against him, based on the comments about me which have been made by the applicant or have been attributed to him. I reject that argument. Some people may wrongly assume this but the impartial observer would take into account both what I have said above, the comments of Southwell JA already referred to and would also take into account the principle that a litigant is not permitted to choose his judge. To hold that by making adverse comments about me, the Bailiff and Commissioners appointed by the Bailiff if he has, the applicant would not have a fair hearing before any of us would be, in effect, to permit the applicant to choose his judge or certainly to choose who would not be his judge. In my view that would be wrong in principle. In any event, if this objection were upheld, the applicant would not be able to bring his case to court.
Obviously these comments would not apply if I were the subject of or directly implicated in the proceedings in question. However, for the reasons I have given, I do not consider that any conflict of interest arises such that I should recuse myself.
9. I have already indicated that I do not consider it is the responsibility of the Bailiff's Office to send out letters to putative defendants, and we will not do so. That leaves over therefore, the question of whether what has been put before me amounts to a form of proceedings which requires the endorsement of a judge. Such endorsement arises as a possibility in two connections:-
(i) An order of justice where there is no Jersey qualified advocate acting for the plaintiff is required to be signed by the Bailiff or Deputy Bailiff before it is issued.
(ii) Where there is an application for judicial review, leave of the Bailiff or Deputy Bailiff is required before the application can be taken forward.
10. Order 20/5 provides as follows:-
11. In the context of the long history of litigation before the Royal Court, this provision is relatively new, having been introduced in the changes in the Royal Court Rules in 1987. Up to that time, all orders of justice had to be signed by the Bailiff. In practice, but perhaps not in theory, this was a largely ministerial act, and no approval of the content of the order of justice could be assumed or implied from the fact that the Bailiff had signed it. His signature was merely an authorisation that the order of justice could be issued. Nonetheless, advocates would from time to time be asked to clarify the basis of the action or to confirm that professional standards had been met if there were a pleading of fraud or other prima facie scandalous material.
12. This requirement was considered in 1987 (see R&O 7651) to be an unnecessary, time consuming and therefore expensive procedure. It could not be guaranteed, of course, that an order of justice signed by an advocate would not be subject to an application for striking out under the relevant provisions of the Royal Court Rules - but equally, it had not previously been thought that the fact that the Bailiff had signed the order of justice to authorise its issue prevented such an application for strike out being brought. So the rule was relaxed. Nonetheless, it was not removed in its entirety. Rule 20/5 of the present Royal Court Rules is more detailed that the 1987 provision but for present purposes it is no different - a litigant in person is not permitted to sign an order of justice, whether it contains an application for interlocutory relief or not. What is the conclusion to draw from that? There is no authority of which I am aware on the point, which is why I have determined to deliver this judgment.
13. One possible conclusion would be that as the Bailiff's signature to all orders of justice before 1987 was largely ministerial in authorising the proceedings to issue, the same rule continued thereafter, and where the Bailiff was asked to sign an order of justice on behalf of a litigant in person, it was merely an authority for the proceedings to issue. Given, however, that the requirement for the Bailiff's signature on an order of justice where an advocate or solicitor was acting for the plaintiff had been removed, it is hard to see how a limited construction of the Rule could possibly be correct. The natural construction of the change in rule is that, whereas lawyers could broadly be expected to adhere to the normal rules of pleading, the same was not necessarily true of litigants in person who had no legal training, and there was a need to ensure that the court processes were not clogged up with proceedings that were defective on their face or otherwise improper. That is why, with litigants in person, the requirement for the Bailiff's signature on the Order of Justice was retained. I construe the effect of this rule accordingly.
14. Nonetheless, it is very important for a judge, when considering whether or not to sign an order of justice on behalf of a litigant in person to have regard to the fact that that putative litigant has a right to access to justice. This is true generally, but it is specifically true in relation to any claim that the putative litigant's European Convention rights have been breached. Furthermore, in exercising the discretion which is conferred by Rule 20/5, the Bailiff is to act in a Convention compliant way, and the Rule must be read down to ensure that it is Convention compliant. If, therefore, it is possible when reading an order of justice put before the Bailiff for signature, to ascertain or identify a cause of action, that order of justice should normally be issued by the Bailiff if so requested, even though it may subsequently be liable to be struck out by the Court on any of the usual grounds upon which an order of justice might be so struck out.
15. To the extent that the document which has been put before me is to be treated as an order of justice, I have therefore reviewed it against that test - namely whether one can properly identify a cause of action against named defendants, because if so, notwithstanding that it may have been poorly pleaded or inadequately particularised, it would be right to sign the order of justice and permit the proceedings to be issued so that the defendants can take what procedural steps they are advised might be appropriate, and the plaintiff resist them if he so wishes. This does not eschew the obligation on the Bailiff not to lend the authority of his office to documents which, in a legal sense, are on their face scandalous, vexatious or an abuse of the process of the court.
16. The document put before me purports not only to be an order of justice but also an application for judicial review. There are rules of court which deal with applications for judicial review in civil proceedings - Part 16 of the Royal Court Rules 2004 applies.
17. To the extent that this is an application for leave to issue proceedings in judicial review, I reject it. I do so because the rules have not been complied with in at least three respects:-
(i) The administrative decision which is impugned has not been identified.
(ii) Notice has not been given in the appropriate form set out in Schedule 5 of the Royal Court Rules 2004 and in Rule 16/2(2).
(iii) No affidavit has been filed in support of the claim.
18. Furthermore, to the extent that this document complains about the decision of the Royal Court to sentence the applicant for contempt, there are two other possible courses of action which the applicant can follow. He can either return to the court which sentenced him for contempt and seek to purge that contempt by appropriate action, or he can appeal against the court's determination by filing a notice of appeal. He can indeed include within his appeal documentation an application for bail pending appeal. The applicant has done none of these things at the time this judgment came to be written. He has not indeed requested a hearing in the notice of the application, and there is no basis on the material currently put before me to suggest that any leave in judicial review should be granted. To the extent that this is an application for leave, it is therefore refused and a copy of these reasons are being sent to the Greffier consistent with Rule 16/2(7) of the Royal Court Rules 2004.
19. On the assumption that the document sent to me falls to be treated as an order of justice, and that I am being asked to sign it pursuant to Rule 20/5 of the Royal Court Rules 2004, I now examine the contents of that document. There are a number of complaints which are contained within it, which fall into one or more of the following categories:-
(i) There are complaints about the applicant's treatment before he was sentenced for contempt - see for example paragraphs 28 and 51 of the document. These have nothing to do with the Prison Governor, the Home Affairs Minister or the Prison Board of Visitors.
(ii) There are complaints about the applicant's committal for contempt - paragraphs 14, 15 and 39 - 48.
(iii) There are complaints about the applicant's treatment in prison - paragraphs 29, 38, 40 - 47, 49 - 51.
(iv) There are complaints about the structure of the Court and the alleged unavailability of legal aid (paragraphs 17 - 27, 51, 53 - 60, 69 - 74).
(v) There are complaints about the Prison Board of Visitors - at paragraphs 75 - 79.
(vi) There are complaints of alleged wrongful behaviour by a former Jurat where the applicant has clearly no locus standi to complain even if what is said were to have been substantiated (at paragraphs 21 and 61 - 68).
20. To the extent that this is a document which complains about the structure of the Court and the absence of legal aid, I note the irony of the applicant applying to the very organisation which he contends is structurally inadequate for the purposes of orders that by the nature of his complaints, if true, that organisation would be unable to make. However, I do not refuse to sign the document on that basis. I do, however, have regard to the decision of Commissioner Sumption in the case of Syvret v Chief Minister, States Employment Board, States of Jersey and Her Majesty's Attorney General [2011] JLR 343. At paragraph 2 of his judgment, Commissioner Sumption said of those proceedings:-
21. In that case, the order of justice had been signed by Commissioner Clyde-Smith and therefore the involvement of Commissioner Sumption occurred because there had been an application by the defendants to have the proceedings struck out. Here, although the procedure is not quite the same, because I am giving a decision on my reasons for not signing the document, if it is an order of justice, I can have regard to the same considerations which are raised in Commissioner Sumption's judgment. As Commissioner Sumption said at paragraph 45 of his judgment:-
22. In the document which I am required to consider, it is unclear whether the applicant is treating all the Jurats as putative defendants, or only those Jurats who are members of the Prison Board of Visitors, or only such Jurats, if any, as adjudicated upon a complaint as one of the Prison Board of Visitors. An objection to it as an Order of Justice is that it does not adequately identify the defendants; but it is an objection all the more to the point because the complaints about the Jurats fall into the same category as those considered by Commissioner Sumption above.
23. The second objection to my signing the document as an Order of Justice is that it contains an amount of vexatious and scandalous comment. I use that language in the context of Rule 6/13 of the Royal Court Rules 2004, which is a rule itself modelled on what used to be Order 18 Rule 19 of the Rules of the Supreme Court. Allegations of dishonesty and outrageous conduct are not scandalous if they are relevant to the issue. However, if degrading charges are made which are irrelevant, the pleading becomes scandalous. I note that in Brooking v Maudslay (1886) 55 LT 343, the plaintiff made allegations in his statement of claim of dishonest conduct against the defendant, but he stated in his reply that he sought no relief on that ground. The allegations thus became immaterial, and were struck out as scandalous and embarrassing. In Murray v Epsom Local Board [1897] 1 Ch 35, an imputation that one member of the Board was opposing the plaintiff's claim, not on public grounds, but for his own private interest, was struck out on the same basis.
24. By the word "vexatious", I have in mind claims which are obviously unsustainable. The word "vexatious" applies also to proceedings which are an abuse of the process (see E T Mailen Limited v Robertson [1974] ICR 72, cited with approval in Ashmore v British Coal Corp [1990] 2 All ER 981, CA). In my judgment the complaints about the structure of the court fall into this category. The Royal Court is obliged to act in accordance with the Royal Court (Jersey) Law 1948, which is a piece of statutory legislation which provides for the establishment and structure of the court. The complaints where the applicant clearly has no locus standi to complain even if what is said were to have been substantiated (referred to at paragraph 17(vi) above) are other examples where the document contains vexatious and scandalous material. The complaint about the applicant's treatment before he was sentenced for contempt (see paragraph 17(i) above) is a further example. Finally, the complaints about the applicant's committal for contempt in paragraphs 14, 15 and 39 - 48 are further complaints which fall into the category of being scandalous or vexatious or otherwise at abuse of the process of the court, because these complaints ought to be taken forward, if the applicant wishes to take them forward, by either a return to the court which sentenced him for contempt on the basis the contempt has been purged, or by an appeal in accordance with the Court of Appeal (Jersey) Law 1961 and the rules made thereunder. The structure of the judicial system is such that the Royal Court cannot sit in judgment on itself, and if the applicant wishes to take this further, he must purge his contempt or issue a notice of appeal in the usual way.
25. The remaining paragraphs in the document put before me are capable of amounting to complaints which could form the basis of a set of proceedings. They appear to relate to complaints about the applicant's treatment in prison by the prison authorities, and it may well be appropriate in that connection to identify the Governor of the Prison and the Home Affairs Minister as potential defendants to such an action. Although it is not clear whether it is asserted that the Prison Board of Visitors has acted wrongly in connection with its adjudication of any complaints which the applicant has made which fall within the Prison Board of Visitors jurisdiction, it is open to the applicant to join the Prison Board of Visitors as a putative defendant to his claim, albeit the nature of the claim would have to be clarified. If the applicant wishes to change the document in such a way as clearly identifies not only who the defendants are but what it is that is said to have been done wrong by them, then, provided that there is prima facie a complaint which the law might recognise, and the scandalous and vexatious material identified above is removed, there is no basis upon which signature on the Order of Justice would be withheld, having regard to the obligation on the Bailiff to ensure that the putative litigant in person has access to justice in relation to a claim which at least in theory, whether or not it is subsequently in fact justified on the facts, could give rise to relief.
26. If the applicant wishes to proceed, he is invited to redraw the document having regard to the comments I have made. I decline to sign the document as it now stands. If the applicant wishes to appeal my decision rather than redraw the document I consider he probably needs leave to appeal as it is an interlocutory matter, unless his case could be said to concern the liberty of the subject. If leave to appeal is needed, it is granted. I do not believe the Court of Appeal has yet had to consider a case where the Bailiff's decision not to sign an Order of Justice has been challenged. I also take a broad view of the right of appeal in Article 12 of the Court of Appeal (Jersey) Law 1961 and consider that by refusing to sign the document, if it is an Order of Justice. I have exercised jurisdiction in a civil cause or matter, even though on one analysis it might be said that until the Order of Justice is signed, there is no civil cause or matter. This approach seems to me to be fair and convenient but of course it is a matter for the Court of Appeal if the applicant wishes to take the matter further.
