TA, Re (Recording of hearings; Communication with Court office)

This is a troubling case. It concerns an elderly woman, who I shall refer to as GA, who has a diagnosis of Alzheimer’s dementia; she is represented in these proceedings by the Official Solicitor. She is currently cared for at home by her adult son, TA. Also living at the family home is HA, another adult son who himself has learning disabilities, and in respect of whose arrangements there are separate proceedings in the Court of Protection.

These proceedings concerning GA were brought under the Mental Capacity Act 2005 by the local authority responsible for meeting her needs under the Care Act 2014 in March 2019 (the ‘Local Authority’); the proceedings have made poor progress largely, in my judgment, as a result of the challenges posed to the Local Authority and to the Court by the conduct of TA.

Following a hearing before HHJ Anderson on 19 November 2020, the proceedings were transferred, unusually and with my agreement, for hearing before a High Court Judge (Tier 3). The two discrete issues on which my adjudication is sought are, in fact, by no means unique to the Court of Protection; I am asked to determine:

For the purposes of the hearing and judgment, I have read a significant quantity of the bundle of filed documents; I have received written and oral submissions by Dr Green on behalf of the Local Authority, and Mr Parishil Patel QC on behalf of GA. For a large part of the hearing, TA participated in person. The hearing was conducted on the

It is unnecessary for my determination of the substantive issues identified in [3] above for me to rehearse the background of the case. In fact, it is better that I do not do so, in an attempt to reduce the risk of identification of the family involved.

Since the Covid-19 coronavirus pandemic swept the country in early 2020, and in particular the announcement of the first ‘lockdown’ in March 2020, the vast majority of cases in the Court of Protection have been conducted using video platforms – either completely (i.e. all parties attend via a video platform or telephone) or in a hybrid form (i.e. some parties attend via the platform or phone, while others and the judge personally attend court). By guidance issued by Hayden J (Vice President of the Court of Protection) on 31 March 2020, remote hearings formally became the default position, with the objective to make the ‘remote hearing’ as close as possible to the usual practice in court.

By a COP9 application dated 17 November 2020, TA seeks permission to record the court hearings concerning GA. He justifies this on the basis that he has a need, following each hearing, to be able to revisit the issues discussed in court, and that he cannot be expected to take handwritten notes alongside making full representation before the court as a litigant in person. In a further COP9 application purportedly issued on the morning of the hearing (15 January 2021), TA requested further and specific permission to audio and visually record the hearing before me. In the accompanying e-mail (15 January 2021), he said this:

“… under NO circumstances shall I be entering the jurisdiction of the Court and presenting myself before Mr Justice Cobb without making a private recording of the event.

Therefore, either permission is granted or I be prevented from entering the Court's jurisdiction. I am under no legal obligation to enter the jurisdiction of the Court, unrepresented as a litigant in person, and to then have my voice recorded without my express permission and at the same time prevented from procuring a copy of said recording in clear contravention of the Data Protection Act 2018, and then forced to pay for a transcription of said recording, without access to the actual audio recording itself.

I will no longer be compromised on this matter.”

At the hearing, and pending my decision on his application, TA advised me that he was not recording the hearing. He expanded his arguments on this application at some length during the hearing. He made the following points:

In developing these points orally, at times TA appeared to suggest that as he was not ‘in court’ and was “outside the jurisdiction of the court”, he could record conversations as he wished. I reminded him that although he was not physically in a court building, he was every bit as much ‘in a court’ on the video platform.

In opposing the application, Dr. Green and Mr Patel submitted (I summarise):

I advised TA that if he wishes emotional or practical support for his participation in the court hearings, he may be accompanied (in accordance with the Practice Guidance [2010] 4 All ER 272) by a McKenzie Friend. I suggested that he may wish, alternatively, to avail himself of the valuable service offered by the organisation ‘Support through Court’, which is currently offering assistance via a National Helpline. If he truly wishes to refresh his memory of a part of the hearing, he may apply to the court for a transcript of the same at his own expense; in exceptional circumstances, there is a limited power given to the court to authorise him to listen to the official audio recording of the same (Practice Direction: (Audio Recording of Proceedings: Access)

I would like to make three points about this application. First, as to the recording itself, the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020

Secondly, and in any event, (and as TA himself acknowledged at the hearing), it would be a contempt of court, punishable by imprisonment, for any party to record a hearing without the permission of the judge: see section 9 of the Contempt of Court Act 1981 (‘Use of Tape Recorders’). While I have a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526), I would need to be satisfied that the applicant had a reasonable need to make such a recording. I am far from persuaded that TA can demonstrate such a need; indeed, by contrast, I am wholly satisfied that TA has a very good (I would suggest an extraordinary), grasp of the procedures, the documents and the issues engaged in these proceedings.

I therefore advise, or more accurately remind, TA that while it may not be a statutory criminal offence to record the proceedings or any part of them unless he is authorised to do so, this would nonetheless be a civil contempt, punishable by imprisonment.

Thirdly, there is a ‘Transparency Order’ in place in this case which prohibits (in a standard form) the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA;

I am satisfied – and advised TA of this when he was still in the hearing – that there would be a ‘publication’ of any recorded information from the court

“… whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication”. Munby J (as he then was) in Re B [2004] EWHC 411 at [82(iii)].

This would, in my judgment, include him posting on YouTube, even if it were on a ‘private’ site, given the limited access which would be afforded there to YouTube employees (if only for the purpose of consideration of a complaint that its content offends YouTube’s own terms and conditions, for example).

TA has been engaged in litigation concerning GA for approximately two years. In that time, it appears that he has corresponded at length and in trenchant terms with both the Official Solicitor and the Local Authority; they have each in turn tried to establish protocols to regulate the volume and tone of the communications from TA to them. At the hearing, Dr Green shared with me a letter which the Local Authority had written to TA dated 10 June 2020, and I reproduce it in full as it paints a revealing picture of the Local Authority’s recent experience:

“Further to the communication sent to you on 19th September 2019 by the Strategic Director Health and Wellbeing, you have continued to engage with a range of Council staff and others using non constructive, abusive and inflammatory means and language.

Despite previous warnings from the Complaints Unit manager, you did not modify the way you engaged with Council services and others, and therefore, you were deemed a vexatious complainant in March 2019 and contact from you was restricted. This was due to the unsustainable amount of time taken up with the high volume of calls and emails you submitted and the unacceptable behaviour exhibited. This decision was reviewed on 19^th September 2019 and extended for a further 6 months until 12th September 2020.

During the last 8 months you have ignored the limits placed on your contact with the Council and continued to behave unacceptably. Accordingly, you are now deemed a vexatious complainant for a further 12 months, until 12th September 2021.

This decision is in line with the Local Government & Social Care Ombudsman’s guidance on managing unreasonable complaint behaviour. Some examples of unreasonable behaviour according to the Local Government & Social Care Ombudsman (LGSCO) are: making unjustified complaints about staff who are trying to deal with the issues raised, using a scatter gun approach by pursuing parallel complaints on the same issues with various people within the same organisation, making excessive demands on the time and resources of staff, refusing to accept a decision despite having exhausted the Council’s complaints procedure, repeatedly arguing points with no new evidence, insisting on complaints being dealt with in ways which are incompatible with the complaints procedure, and engaging in offensive language. Your behaviour has included some or all of the above.

With immediate effect all your contact with [the Council] must be in writing. No telephone calls from you will be answered.

…

As regards correspondence from you which repeats matters previously dealt with, is designed to make excessive demands owing to the frequency of your communications or is otherwise judged to be abusive or unreasonable, no acknowledgement or reply will be given. The above restrictions apply to any correspondence from you directly, or from you on behalf of other people, or where you are making use of other email addresses either personal or anonymous.

Your situation will be reviewed in 12 months at which time a decision will be made as to whether future contact needs to continue as above. Please note that this does not prevent you from receiving other services provided by the Council but any contact in relation to them must be in writing and through the Complaints Unit.

If you are dissatisfied with the above decision and wish to appeal against this restriction, please appeal in writing to the Strategic Director Corporate Resources who will respond within 20 working days. Any other email you send in relation to this letter will be unanswered.

On a separate matter, you have enquired as to the position regarding your ability to record telephone conversations with Council officers. As you were not entitled to telephone officers, the question and answer were academic. It has since come to light that despite this restriction you have recorded calls with officers. The Council’s position is set out below, but it remains hypothetical for the next 12 months (when a review will be undertaken or until September 2021 assuming no change in your behaviour) as the Council will not receive telephone calls from you.

If you record telephone conversations with Council Officers either covertly or without their express consent, you must only use these recordings for your own private purposes and you must not upload them onto social media or forward them on to any third party. When beginning a conversation with a Council employee and you intend to record it for private use only, you should advise the other person of your intention at the outset. If you intend to share the recording in any way you must advise the other person of this intention so they may decline to be recorded. If you share recorded conversations without consent you will place yourself in the position that any contact in future may only take place in writing.”

Mr Patel advised me that the solicitors instructed by the Official Solicitor on behalf of GA have established a similar protocol.

In the latter part of last year, it had come to the attention of HHJ Anderson (one of the two Regional Lead Court of Protection Judges in the North East, and previously the allocated judge for this case) that TA’s conduct towards, and correspondence with, the Court of Protection court office in Leeds had become excessive and may warrant some proscription. On 10 December 2020 HHJ Anderson directed of the court’s own motion that the issue of TA’s communication with the court office be considered specifically by the Court; she invited me to deal with this. HHJ Anderson made an order directing the preparation of a witness statement from the Operations Manager at the Court of Protection court office, and gave TA the opportunity to reply.

The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.

The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation.

I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).

As mentioned above, since the hearing on 15 January 2021, TA has sent two further emails copied to the court (and again copying in significant number of others). The email is addressed (as many of his e-mails are) to “Dear Coalition Of My Mother's Persecutors (COMMP)”. In one, he states, and repeats a number of times, the following narrative:

“You can beat me to my knees, it only makes me stronger. I am unbreakable!! Did you hear me? DID YOU HEAR ME [Local Authority]! I am unbreakable. I am UNBREAKABLE, I AM UNBREAKABLE!!! The strength that lies in my heart is like no other. The determination that lives inside me is equal to no other. Every day, I wake up, I promise myself, I will make it, and I never break a promise I make to myself! I am unbreakable. I am Unbreakable.. I AM

UNBREAKABLE!!!”

TA denies that his correspondence with the court has been excessive, inappropriate, or intemperate. He describes the Operations Manager’s written evidence as a “badly drafted pathetic attempt at a fraudulent witness statement”. He does not dispute the volume of his correspondence; he seeks to justify his correspondence, referring inter alia to the fact that there are five separate pieces of litigation in which he is involved, and specifically, further, that:

“HMCTS staff have deliberately destroyed my Court submitted evidence, of a year's worth of unused medication is marginalised and ignored and refused to be addressed to date. This was a deliberate attempt by HMCTS staff to pervert the course of justice in collaboration with [the local authority] and the Official Solicitor and [the judge], and is a serious criminal offence in law of looking to pervert the course of justice, which no doubt [the Operations Manager] is looking to find ways to get out of by discredit my name in a scapegoating exercise”

In my finding, there is no justification for the volume or indeed the tone of much of the e-mail correspondence from TA to the Court which has been presented to me. It is easy to see how those working in the Court of Proceedings court office could have felt easily overwhelmed by the communications from TA. His contact with the court office is and has been wholly disproportionate to the issues in the linked cases; the time taken for the hard-pressed staff to manage this correspondence (and his phone calls) will doubtless have materially distracted them from dealing with the many other Court of Protection cases which require their attention.

I have reminded myself of what King LJ said, albeit obiter, in Agarwala v Agarwala[2016] EWCA Civ 1252; in that case, she was concerned with a business dispute which had been running for almost seven years. In a postscript to her judgment ([71]/[72]), she said this:

It seems to me that I can and should adopt here the approach suggested by King LJ, by making orders specifically designed to protect the administrative processes of the Court of Protection generally and to prevent its procedure from being abused. Support for this

Taking my cue from these judgments, and for the reasons set out above, I propose to make an injunction, in the terms set out at the foot of this judgment, to restrain TA hereafter from communicating with the court office by e-mail and telephone. While this is undoubtedly an exceptional order, it is in my judgment entirely justified by the facts of the case; there is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by TA unless I intervene now with appropriate injunctive relief. In my judgment the order represents a proportionate restriction on TA’s ability to communicate with the court office; he may continue (should he have the need to do so) by sending letters to the court office through the agency of Royal Mail. TA should note, however, my direction that he cannot expect a response from anyone in the court office (which may in fact be by e-mail from the court office if they choose) to his correspondence, if his correspondence with the court office is abusive. While Brooke LJ contemplated that this jurisdiction could or would be exercised by the High Court deploying its inherent jurisdiction, I propose to use the power invested in me by section 47(1) Mental Capacity Act 2005, given that the order is made “in connection with” the exercise of my wider jurisdiction within the Court of Protection. I propose to attach a penal notice to that injunction, so that it may be enforced, if a breach is proved to the required standard, by committal to prison if necessary.

It would be far better for all concerned, most notably for GA, if TA were to channel his energies into co-operating with the Local Authority and co-operating with the court processes, so that properly informed welfare-based decisions can be made, in proper time now, in relation to GA. I shall give case management directions which are designed to focus attention on preparing for a final welfare hearing, to be conducted next month, at which the plans for GA’s future residence and care will be considered.

That is my judgment.