Misconduct - application for an interim injunction re the Steel
report.
[2014]JRC121
Royal Court
(Samedi)
2 June 2014
|
Before :
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The Hon. Michael Beloff, Q.C., Commissioner.
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IN THE MATTER OF HG
AND IN THE MATTER OF AN APPLICATION FOR
AN INTERIM INJUNCTION RE THE STEEL REPORT
judgment
the commissioner:
Determination
1.
I have
before me a document headed "Application
for an Interim Injunction" dated 27th May, 2014, by Mr F J
(Bob) Hill BEM ("Mr Hill") requesting the Royal Court "to issue an Order whereby The Bishop
of Winchester does not publish or circulate a document known as the Steel
Report". Mr. Hill avers
that he "represents", and
the request is stated to be made on behalf of, HG, a lady elsewhere identified
in the application as someone who is "autistic,
living in the UK, unemployed, of no fixed abode". From the application it appears that
Mr Hill considers that publication of the Report is "likely to cause HG harm".
2.
It is not
necessary for the purposes of consideration of the application for me to set
out the background save to say that in 2008 HG made a complaint about
inappropriate advances allegedly made to her by a Jersey Church Warden
("HG's complaint").
This led to a series of court proceedings and other procedures. The Steel Report is the fruit of an
investigation by Dame Heather Steel, which followed the Korris review into
Safeguarding in the Deanery of Jersey, and was itself designed to recommend to
the Bishop of Winchester whether or not disciplinary complaints should be made
against any member of the clergy in relation to matters arising out of
HG's complaint.
3.
In order
for the application to be considered at all, it will be necessary for an Order
of Justice to be issued. Rule 20/5
of the Royal Court Rules 2004 provides:-
"Signing of Orders of Justice
(1) An
Order of Justice must be signed by the Bailiff or by an advocate or solicitor
unless an interim injunction, arrêt entre mains or other judicial act is
sought therein, in which case it shall be signed by the Bailiff.
(2) Any
solicitor who applies to the Bailiff for an Order of Justice containing an interlocutory
injunction must give a written undertaking to the Bailiff that he or she has
instructed an advocate in relation to the proceedings''
4.
As a
Commissioner appointed by the Bailiff for a specified term I have power to act
vice the Bailiff or Deputy Bailiff pursuant to Article 12(2) of the Royal
Court (Jersey) Law 1948 (as amended) ("the 1948 Law"):-
"12 Powers of Commissioners
2) A Commissioner appointed by the
Bailiff for a specified term may exercise, whether for the purposes of this Law
or for any other purposes, such other judicial functions of the Bailiff as the
Bailiff may from time to time authorize or require"
5.
5 The role
of the putative signatory under Order 20/5 was authoritatively analysed by the
Deputy Bailiff In the Matter of the Application of Stuart Syvret [2013] JRC 263, whose material passages provide 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.
...
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.
...
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....
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,"
6.
From that
judgment (with which I am in respectful agreement) I derive and develop the
following principles:-
(i)
The
signature of the Bailiff, Deputy Bailiff or authorised alternate is a judicial,
and not only an administrative, act.
(ii) An Order of Justice should not be signed if it
is on its face irredeemably malicious, vexatious or an abuse of the process of
the Court. (''the triple criteria'').
(iii) Vexatious in legal parlance describes, inter
alia, an unsustainable cause of action.
(iv) The putative signatory must give latitude to a
document which may merely be inadequately pleaded or where the alleged cause of
action is inadequately particularised when he seeks to determine whether it
does or does not fall foul of the triple criteria or any of them. A defendant to such a claim always has
the opportunity to apply to strike the Order for Justice out on the
conventional grounds.
(v) There must therefore be some space between the
approach taken when contemplating refusal of a signature to a proposed Order of
Justice and that taken when contemplating a strike out of an Order once
issued. The threshold must be
higher in the former than in the latter case.
(vi) It must be borne in mind that a person is not
lightly to be denied access to justice either as a matter of Jersey common law
or by reason of Article 6 of the European Convention on Human Rights now
incorporated into Jersey law. (However
that right is not absolute Golder v UK [1975], ECHR 524 at (38)).
7.
In my view
there are two insuperable obstacles in the path of Mr Hill when he seeks my
signature to the proposed Order of Justice, as I construe it.
8.
8. The
first obstacle is Mr Hill's own lack of locus or capacity.
9.
9. The Loi (1961) sur l'exercice de la
profession de droit à Jersey ("the 1961 Law")
provides:-
"Article 1
Dans la présente Loi, les
mots "personne diplômée" désignent le
Procureur-Général de la Reine,
l'Avocat-Général de la Reine, un Avocat du Barreau ou un
Écrivain de la Cour Royale, et les mots "personne non
diplômée" désignent une personne autre qu'une
personne diplômée.
Article 2
(1) Toute personne non
diplômée qui signera une bille ou instituera de quelque
manière que ce soit une action devant les Cours de cette Ile sera
coupable d'une contravention à la présente Loi :
Cependant les dispositions de cet
alinéa ne s'appliqueront pas à l'acteur même.
Article 7
La présente Loi ne
déroge en rien à toute autre Loi conférant à une
personne non diplômée le pouvoir de plaider ou de défendre
une cause ou autrement d'agir relativement aux procès."
In consequence "Subject to
certain customary and statutory controls.....the modern position is that
prima facie all natural persons in the Channel Islands have the right to
conduct litigation in their own name, and that all legal persons have the right
to conduct litigation by their duly authorised officers or, if the court gives
permission, employees and agents" 'Rights of Audience in Jersey and
Guernsey and who should exercise them', Barclay and Hanson 2009 JGLR p47.
10. A litigant in person is, in the context of the Royal
Court Rules 2004 "any litigant who is not represented
by an advocate and who is therefore representing himself" (Leeds
United Association Football Club Limited v Phone-In Trading Post Limited [2008] JRC 141).
11. Mr Hill would not, accordingly, be entitled to
represent HG in connection with the proposed application, save that, subject to
the Court's discretion to control its own process, he might be able to
act as a McKenzie friend to assist HG although not himself able to address the
Court.
12. Materially he is a "personne non diplomee", neither Avocat or Ecrivain,
who is seeking to institute proceedings before the Royal Court. This is prohibited by Article 2(1) of the
1961 Loi. That he may be doing so
at HG's request does not alter that fact. She alone would be the "acteur" to whom the
prohibition would not apply.
13. The second obstacle is provided by the status
of the putative defendant.
14. It is well established that when a putative defendant
is not resident in Jersey he can only be made subject to the jurisdiction of
the Royal Court of Jersey if the plaintiff can obtain leave to serve him out of
the jurisdiction pursuant to the Service of Process (Jersey) Rules 1994
("the 1994 Rules") see State of Qatar v Al Thani [1999] JLR 118 at 122).
15. The 1994 Rules provide so far as potentially
material:-
"7 In certain cases
service of summons allowed out of jurisdiction
Service out of the jurisdiction of
a summons may be allowed by the Court whenever -
(b) an injunction is sought
ordering the defendant to do or refrain from doing anything within the
jurisdiction..."
16. The application avers that the Bishop of
Winchester is considering how to publish the Report "in such a way as to minimise the impact on HG and the risk of
harm to her". Any such
publication would presumptively be in England (Halsbury's Laws, 5th Ed.
Vol .32 para 567 (Place of Publication).
However, the Bishop cannot be served out of Jersey in respect of any
such publication in England where HG now resides (1994 Rules (7(b)). (And it would be an exercise in futility
to prevent publication of the Steel report by the Bishop in Jersey only where
she no longer resides).
17. I therefore conclude that on the face of the
application for one or other or both of those reasons the cause of action is
simply not viable. It is
regrettable that I have to apply to it the description "vexatious" since I do not intend thereby to imply any
improper motive on part of Mr Hill. But if the application could not in any
circumstances succeed, it would not be consonant with justice for an Order of
Justice to be signed.
Authorities
Royal Court Rules 2004.
Royal Court (Jersey) Law 1948.
In
the matter of the Application of Stuart Syvret [2013] JRC 263.
European Convention on Human Rights.
Golder v UK [1975], ECHR 524.
Loi (1961) sur l'exercice de la
profession de droit à Jersey.
Leeds
United Association Football Club Limited v Phone-In Trading Post Limited
[2008] JRC 141.
Service of Process (Jersey) Rules
1994.
State
of Qatar v Al Thani [1999] JLR 118.
Halsbury's Laws, 5th Edition.
