Vlad v Judicial Appointments And Conduct Ombudsman

LORD JUSTICE SALES: This is the oral application for permission to appeal from the judgment of McGowan J of 29 October 2015, reported [2015] EWHC 3790 (Admin), refusing permission to Mrs Vlad to seek judicial review in respect of a report of the Judicial Appointments and Conduct Ombudsman of August 2014. The application to this court was ordered to come on as an oral application in the first instance, so there is no decision on the papers.

Mrs Vlad has been engaged in long running and I think what may fairly be described as bitter litigation against her former husband since their divorce in 2010/2011 pursuant to an order of Her Honour Judge Pearl 15 April 2010. Wilson LJ, as he then was, refused permission to appeal on 23 November 2010. An order in respect of ancillary relief was made by Deputy District Judge Petrou on 19 October 2011. Mrs Vlad's appeal from that order was dismissed by Eleanor King J on 21 February 2012. Subsequently on I believe 29 May 2012 McFarlane LJ refused permission to appeal to this court from Eleanor King J's order.

More than 12 months after the last relevant hearing, that before Eleanor King J in February 2012, Mrs Vlad made complaints about judicial conduct in respect of various judges, up to and including the conduct of Eleanor King J at the hearing I have referred to in February 2012, to the Ombudsman. These were rejected eventually as out of time under the Judicial Discipline (Prescribed Procedures) Regulations 2006 in an ombudsman report of 4 August 2014. Regulation 4 of the 2006 Regulations provided:

Mrs Vlad argued that her complaints were within time because she contended that the permission to appeal application hearing before McFarlane LJ on 29 May 2012 constituted a continuing state of affairs for the purposes of regulation 4 and that her complaint had been brought within the relevant 12 month time limit from that date. The Ombudsman decided that the decision of 29 May 2012 did not constitute a continuing state of affairs in any relevant sense in relation to the complaints of judicial misconduct which Mrs Vlad was seeking to make in relation to other judges' conduct. The Ombudsman, in deciding to reject Mrs Vlad's complaints as out of time, applied the 2006 Regulations in their original and unamended form. They were amended in 2013, but that was not material to the decision taken by the Ombudsman.

On 3 November 2014, Mrs Vlad commenced these judicial review proceedings. The Ombudsman filed an acknowledgement of service disputing the claim, but it appears that that was not originally served on Mrs Vlad. On 11 February 2015, Rose J made a decision on the papers refusing permission for judicial review and certified the claim as totally without merit. Mrs Vlad succeeded in having that order set aside, however, because she had had no opportunity to see or comment on the Ombudsman's acknowledgement of service. Rose J's order was on that ground set aside by the order of His Honour Judge Blackett dated 19 May 2015. Mrs Vlad was then properly served with the acknowledgement of service, and the question of directions for further consideration of her application for permission to apply for judicial review afresh arose.

The matter came before Lewis J on 26 June 2015. Lewis J ordered:

In due course, Mrs Vlad's application for permission to apply for judicial review was listed for a hearing before McGowan J on 29 October 2015. On 23 October, Mrs Vlad received the Ombudsman's skeleton argument and two witness statements relevant to that permission to apply for judicial review hearing. These were materials produced as essentially requested or directed by Lewis J in his order in which he had explained that the Ombudsman would need to explain certain factual matters for the benefit of the judge considering the application. The service of the skeleton argument and the witness statements was less than seven days before the hearing before McGowan J as required, but still in good time to allow Mrs Vlad a fair opportunity to digest them, understand them, and deal with them at the hearing before McGowan J.

At the hearing before McGowan J on 29 October 2013, McGowan J considered in particular Mrs Vlad's argument of law that so far as regulation 4 of the 2006 Regulations was concerned, she, Mrs Vlad, was entitled to rely upon regulation 4(2), and on the basis that a continuing state of affairs continued for the purposes of her complaints down to the last hearing to which it referred, namely that on 29 May 2012 before McFarlane LJ. McGowan J rejected that interpretation of regulation 4(2). She therefore held that the Ombudsman had acted lawfully and correctly in accordance with a proper understanding of regulation 4 in dismissing Mrs Vlad's complaints as out of time.

Mrs Vlad now seeks permission from this court to appeal against McGowan J's decision to refuse her permission to apply for judicial review. She does so on the basis of a series of complaints which I think can most conveniently be grouped under the headings of procedural irregularity, error of law, an allegation of bias against McGowan J, and in relation to the question of costs.

First, so far as procedural irregularities are concerned, Mrs Vlad complains that McGowan J was wrong to permit the Ombudsman to rely upon his acknowledgement of service, skeleton argument and the witness statements at the hearing because the Ombudsman had failed to file an acknowledgement of service in time. CPR part 54.9 provides that where a person serving the claim form has failed to file an acknowledgement of service in proper time, he may not take part in a hearing to decide whether permission should be given unless the court allows him to do so. The difficulty with this particular complaint of Mrs Vlad is that Lewis J by his order did allow the Ombudsman to participate in the permission hearing at this he directed should take place. Also, McGowan J permitted that to occur. Both decisions were well within the bounds of the case management discretion which those respective judges had. Accordingly there is nothing in this particular point so far as an appeal is concerned.

The second area of procedural irregularity relied upon is the somewhat late service by the Ombudsman of his witness statement evidence and skeleton argument, but again, McGowan J plainly considered that Mrs Vlad was in a position to deal with the matters raised in those materials, and as I have already indicated, they were served upon Mrs Vlad well before the hearing on 29 October and sufficiently before that hearing to allow her a fair opportunity of being able to deal with them at that hearing. Once again, the decision by McGowan J to allow the Ombudsman to present his case before her at the hearing was a decision which was well within McGowan J's case management discretion at that stage, and once again this ground does not form an arguable basis for an appeal.

So far as error of law is concerned, Mrs Vlad's focus is essentially upon two aspects of the case. The first is whether there is an arguable case in respect of the judge's construction of regulation 4(2) of the 2006 Regulations. In my view the judge was clearly right in her construction of regulation 4(2). It needs to be borne in mind that the regulations are concerned with complaints about judicial conduct of particular judges. Mrs Vlad's argument was that if there was ongoing litigation concerning the same underlying subject matter, that should be regarded as a continuing state of affairs. I consider that the judge was right in rejecting such an approach. A continuing state of affairs for the purposes of regulation 4(2) is in my view plainly a continuing state of affairs as constituted by judicial misconduct on the part of a particular judge whose actions are complained of. That was not the position in relation to the complaints made by Mrs Vlad to the Ombudsman in this case.

Secondly, Mrs Vlad submits that the judgment was simplistic, in particular given the length of the hearing, some four hours, that took place before McGowan J. I do not consider that there is anything in this criticism of the judge either. In fact I consider that the judgment is perfectly full enough for the judge to have dealt with the arguments with which she was presented. It was a judgment of rather more fullness and detail than one ordinarily expects to find in relation to an application for permission to apply for judicial review. So again I do not consider that there is anything in this ground of appeal either.

Next, Mrs Vlad contends that the way in which McGowan J dealt with the case gives ground for an objective suspicion of bias on the part of the judge, such that her order should be set aside. The matters which Mrs Vlad relied upon in support of this contention essentially revolved around her complaints about the procedural matters to which I have already referred. She contends that the judge committed procedural errors of law which gave rise to unfairness to Mrs Vlad in the conduct of the hearing before the judge. As Mrs Vlad put it, once the judge allowed the defendant to participate in that hearing in breach of procedural rules, "I had no chance". I do not consider that there is any arguable case disclosed in the materials put before us or substantiated by Mrs Vlad's arguments put to us both in writing and orally upon which any suggestion of bias, whether subjective or objective, could be mounted against the judge. So again I do not consider that there is any proper ground of appeal so far as that matter is concerned.

Finally, Mrs Vlad complains in respect of the costs order that was made against her. Two points should be made about that. First of all, the making of a costs order in favour of a defendant in respect of both the costs of preparing an acknowledgement of service and of participating in an oral hearing for permission where the court has itself required assistance to be provided by the defendant is entirely conventional. There is no arguable error of law or approach on behalf of McGowan J in proceeding to make costs orders on the conventional basis in the circumstances of this case.

Secondly, Mrs Vlad complains in particular about the extent of the costs ordered against her, which included costs in respect of the four hour hearing before McGowan J. Mrs Vlad says that McGowan J fell into error when "she wrongfully allowed leeway of over four hours for the permission to appeal hearing, which initially was set to one and a half hours by Lewis J". The costs reference in Mrs Vlad's skeleton argument is paragraph 1.1 of McGowan J's order. At paragraph 1.1, McGowan J said this:

For all these reasons, I would refuse this application for permission to appeal. In my view, the appeal would not have any real prospect of success. There is no other compelling reason to grant permission to appeal.

LADY JUSTICE MACUR: I agree.

LADY JUSTICE MACUR: There are two other applications for permission to appeal that are advanced by the applicant, Mrs Sandra Vlad, which relate to an order made by His Honour Judge Brasse on 13 October 2015 directing that a judge of the Central Family Court execute the transfer of the applicant’s former matrimonial home to the sole name of her ex husband. The order recites that Mrs Vlad had indicated in an email that she had "been advised not to attend" the husband's application and records that the judge was satisfied that she had failed to obey the orders of the court. HHJ Brasse executed the said transfer on the same day.

On 24 November 2015, His Honour Judge Tolson QC considered Mrs Vlad’s application to set aside the order of His Honour Judge Brasse previously referred to. He dismissed the application and gave reasons. Mrs Vlad seeks to appeal those orders on the basis of new evidence which, she says, will undermine the making of the matrimonial financial relief order in October 2011 by District Judge Petrou, including an order transferring the former matrimonial home to her husband, and justify all the subsequent and many proceedings that she had taken in an attempt to set that order aside.

In the course of her submissions today, it became apparent that Mrs Vlad seeks to set aside all previous proceedings and to have this court reopen a final determination of the appeal process that has previously been exhausted.

It is necessary to give a summary of the history behind the orders of His Honour Judge Brasse and subsequently that of His Honour Judge Tolson and refer to the matters that Mrs Vlad seeks now to put before the full court.

On 18 October 2011, DJ Petrou, having heard the adjourned financial relief proceedings brought between Mr and Mrs Vlad, ordered that the matrimonial home, heavily mortgaged and subject to penalty for early repayment of the mortgage, should be transferred to the husband on the payment to the wife of the sum of £10,000. His judgment records that the parties were married on 16 January 2007, separated in June 2009, were divorced by decree absolute made on 26 January 2011, and that there were no children of the marriage. He determined that a ‘clean break’ was necessary and so ordered. The transfer of the property to the husband was to take place within months of the judgment.

Mrs Vlad appealed alleging that the husband had failed to make any or any adequate disclosure. Her appeal came before King J, as she then was, on 20 February 2012. Having heard the submissions of Mrs Vlad and counsel on behalf of Mr Vlad on 20 February, King J gave judgment on the following day -- unfortunately, as she recorded, in the absence of the wife, who had returned to work -- dismissing the wife's appeal, confirming the order of transfer of the former matrimonial home to the husband, amending the date for completion of the transfer of the property to 16 March 2012 and attaching a penal notice to that part of the order . ( However, there is nothing in the papers that are before the court which reveal that any attempt has been made to commit the wife for breach of that order.)

Mrs Vlad sought permission to appeal. Her oral application for permission to make a second appeal came before McFarlane LJ on 30 May 2012. McFarlane LJ refused the application.

On 21 April 2015, Mrs Vlad made application pursuant to CPR 52.17 to reopen the final determination of McFarlane LJ before Sullivan and Tomlinson LJJ. They, having heard Mrs Vlad’s submissions, in particular her continuing complaints that the husband had failed to make full disclosure of his financial means, refused the application. They decided that there was no reason to reopen the final determination of the appeal to avoid real injustice, or that there were exceptional circumstances to make it appropriate to do so.

On 13 October 2015, that appeal process appearing to have been exhausted, the husband made application, as previously indicated, before His Honour Judge Brasse. Mrs Vlad appealed against the order made, contending that the judge had failed to have regard to the documents that she had placed before the court and had not considered those matters, which I paraphrase, went to undermine the orders previously made by Wilson LJ, District Judge Petrou, and King J. That is, she maintained that the husband's misrepresentations and nondisclosure were sufficient to reopen all matters.

On 22 October 2015, Tomlinson LJ considered further applications made by Mrs Vlad to reopen the appeal process. The first ground for doing so was on the basis that the husband had lied in the courts below as to his ability to father children. This lie, Mrs Vlad said, would have impacted upon the assessment made by HHJ Pearl who had dismissed a cross petition of the wife and instead granted the husband’s petition for divorce. Mrs Vlad applied for permission to appeal before Wilson LJ, as he then was, who dismissed her application. Tomlinson LJ determined that there would be no injustice caused to the wife since, as Wilson LJ had described, he was dealing with an ‘arid’ issue of whether or not it should be the husband or wife to be given the decree.

Secondly, Tomlinson LJ considered whether or not a letter from the husband dated 30 April 2015, general as it was, demonstrated that his evidence as to employment and remuneration given before District Judge Petrou in October 2011 was inaccurate. Tomlinson LJ took the view that this was exactly the same point in the application before Sullivan LJ and himself in April 2015 when Mrs Vlad’s application had been dismissed. In those circumstances, Tomlinson LJ did not consider that exceptional circumstances had been demonstrated, nor did he consider it necessary to reopen District Judge Petrou's determination in order to avoid real injustice and he dismissed Mrs Vlad’s application.

In the meantime, Mrs Vlad issued an application notice, dated 6 November 2015, seeking to set aside the judgments of Wilson LJ, District Judge Petrou and His Honour Judge Brasse. She again sought that the case be reopened in order that her claims be reheard when the relevant facts, as she referred to them, were known concerning the husband's misrepresentations and nondisclosure. She filed a statement in support of that application also dated 6 November in which she complained about the proceedings to date. She referred to the nondisclosure of the husband and the phrase that "fraud unravels all" found in the then recently reported Supreme Court decisions in Sharland.( See [2015] UKSC 60).

On 23 November 2015, Lewison LJ considered Mrs Vlad’s application for a stay of execution of the order of His Honour Judge Brasse in order to permit her to make good her applications before the court. Lewison LJ gave the following reasons to refuse the stay:

On 24 November 2015, His Honour Judge Tolson QC considered the wife's application made to set aside the decision and order of His Honour Judge Brasse. He dismissed the application. He gave reasons as follows:

Mrs Vlad seeks permission to appeal. She alleges that HHJ Tolson QC was prejudiced against her application by reason of the Wilson LJ’s description of her behaviour. In her appellant's notice dated 21 March 2016 she seeks permission to introduce fresh evidence of the husband's fraudulent behaviour and reopen the matrimonial and financial relief proceedings in the High Court after, as she says it should, the Court of Appeal sets aside the orders of the lower courts and several appeal courts differently constituted or, alternatively, seeks permission to appeal to the Supreme Court on the basis of the judgments in the cases of Sharland and Gohil.

That ‘fresh evidence’ which she relies upon was the main plank of her written application for an adjournment of these applications, orally renewed this morning, and refused by the court for reasons given in a separate judgment. That is, in June 2016 Mrs Vlad’s ex-husband made an application for an injunction preventing her from disseminating further information about him or making what he would say are false and defamatory statements about him on social media websites. In doing so, he referred to the fact that he has been in a relationship for the last six years, which on Mrs Vlad's calculations, and objectively seen, would mean that in 2010 at the time when District Judge Petrou heard the Vlad’s matrimonial financial relief applications, the husband was already in that relationship. Mrs Vlad says this fact is “buried under a new application and anonymised for the purpose of confidentiality”, but can now demonstrate, by cross-reference to the transcript of the proceedings before District Judge Petrou, that her husband lied about his personal circumstances in that he denied being in a relationship or living with anyone else. She goes on to submit that it would be proper and possible to infer that he was being supported by another individual, which fact would have undermined the basis of the district judge's determination of the financial relief application. What is more, she contends, this relationship with another woman was the reason why he was seeking non-molestation and occupation orders against her and able to advance in the divorce proceedings so successfully before HHJ Pearl, and as further considered by Wilson LJ.

The new evidence upon which she relies is restricted to the statement made in the husband’s June 2016 application and the relevant parts of the transcripts of proceedings before District Judge Petrou. The assertions cannot be further particularised and the inference of financial support that she asks the court to make I regard to be unsustainable. This new information could not be seen realistically to be the basis of any reason to reopen any of the proceedings that had gone before in terms of the divorce or order to transfer the former matrimonial home to the husband, whether in substance, in enforcement, or during appeal proceedings and other applications.

So far as the orders which are subject of the actual applications for permission to appeal are concerned, the basis of HHJ Brasse’s order was the order made for transfer in 2011, confirmed after appeal in 2012, and not disturbed by subsequent applications. In those circumstances, the only matter for him to consider was whether or not he was satisfied that the wife, Mrs Vlad, had failed to perform the transfer as was ordered and showed by her actions that she would fail to do so. There was every reason from the history that I have related to conclude that she would continue to refuse to do so, and in those circumstances it is entirely unrealistic for Mrs Vlad to suggest that the decision he made was wrong. There was no reason for him to give a reasoned judgment in the application. The order recites in full the basis of his decision to do so, and I would regard the application of the wife for permission to appeal against that order to be totally without merit.

The reconsideration of the position by HHJ Tolson QC was made on a date after the Court of Appeal had been asked to consider reopening the appeal and Lewison LJ had been asked to grant a stay of HHJ Brasse's order. HHJ Tolson QC correctly identified that the application to set aside the other judgments and orders was misconceived, correctly identified that no grounds had been advanced in support of the applications which had not previously been advanced and determined, was correct to describe the nondisclosure alleged by the wife to be non-specific and unparticularised, and correct to indicate that HHJ Brasse's order was an order merely giving effect to earlier orders and that could not be a gateway for the wife to reopen the previous proceedings.

Mrs Vlad’s suggestion of bias against him is by reason of HHJ Tolson QC's reference to the judgment of Wilson LJ in 2010 in which he said

I do not see that HHJ Tolson QC's reference to that part of the transcript of the judgment of Wilson LJ indicates bias in relation to the application before him to set aside the order of HHJ Brasse. Merely it reflects that he was aware of the context of the persistent applications of the wife to set aside, by one guise or another, the order of DJ Petrou in October 2011. The fact that HHJ Tolson QC considered that the wife's application was totally without merit does not by itself give reason to suspect he was in any way biased against her. He dealt with the application on the merits. There is absolutely no criticism that can be made of his reasons or the basis for his criticisms of the wife's behaviour.

In those circumstances, I would regard this application for permission to appeal against his order dismissing her application to be totally without merit.

It appears to me that neither an extended civil restraint order or limited civil restraint order would adequately meet the circumstances in this case. It is therefore appropriate to make a general civil restraint order which prevents Mrs Vlad from making further applications or issuing claims at any level of court before seeking the permission of a judge to be identified in the order. I consider that it would be appropriate for the Master of the Rolls to nominate the judge who is to be responsible for supervising Mrs Vlad’s applications. The general civil restraint order, in my view, should be made for a period of two years from today.

I bear in mind in making such an order that earlier today we gave permission to Mrs Vlad to withdraw an application to appeal the order of the present Master of the Rolls refusing to recuse named judges from dealing with any applications made by her. Whilst granting permission to withdraw that application, it is necessary to observe that Sales LJ and I had read and considered in advance Mrs Vlad’s written submissions in respect of this prospective application, and insofar as it was possible to do so in advance of oral submissions, had each separately concluded it was obvious that the basis of such an application was totally misconceived and totally without merit. I bear that in mind, but determine the application upon the previous applications recorded to be totally without merit, including that of Wilson LJ in 2010, that of Lewison LJ and HHJ Tolson QC

in November 2015, and the applications that I would dismiss today.

It follows that if my Lord, Sales LJ, agrees, that the interim stay that was granted by Ryder LJ on 16 July last will be lifted and there will be no reason for the Land Registry not to register the transfer that has been effected by the order and signature of His Honour Judge Brasse.

LORD JUSTICE SALES: I agree.