His Majesty's Solicitor General v Paul Millinder

On 6 July 2021, following an application made by the Attorney General under section 42 of the Senior Courts Act 1981, and a “hybrid” hearing at which the Respondent, Paul Millinder, appeared remotely by Cloud Virtual Platform (“CVP”) and represented himself, the Divisional Court (Lady Justice Andrews and Mr Justice Swift) made an “all proceedings” order against Mr Millinder, on the basis that he had habitually, persistently and without any reasonable ground instituted vexatious civil and criminal proceedings (“the section 42 Order”). The background to the making of that order is set out in detail in the judgment of Mr Justice Swift in the section 42 proceedings, HM Attorney General v Millinder [2021] EWHC 1865 (Admin).

The section 42 order was served on Mr Millinder by email at 12.38 on 6 July 2021. He acknowledged receipt on 8 July 2021, responding in these terms:

“ The judgment is void as ultra vires and so is the order. It was ultra vires of the purported judges to make an order that perverts the course of justice after evading every single part of my evidence that proves my case beyond doubt …

There is no real order of the court, only fraud, corruption and perversion of the course of justice driven by colluding criminals in Parliament who have coerced the judiciary to behave in this way…

I will not comply with a void order, it will not restrain me, not in the slightest.” (Emphasis supplied).

Mr Millinder was true to his word. His deliberate and persistent acts of disobedience to the section 42 order have led the Solicitor General to bring these proceedings for his committal for contempt of court.

Mr Millinder is aggrieved by the fact that the merits of a commercial dispute between his companies, Empowering Wind MFC, and Earth Energy Investments LLP, and Middlesbrough Football & Athletic Company (1986) Ltd (“Middlesbrough FC”), concerning arrangements entered into in 2012 for the construction of a wind turbine at Middlesborough FC’s football stadium and the supply of energy from the turbine, have never been adjudicated upon by a court. He refuses to accept that there is no means by which that dispute can now be litigated, despite the fact that he has been told so by many different judges.

A full account of the underlying dispute is to be found in the judgment of Sir Geoffrey Vos, then the Chancellor of the High Court, in Middlesbrough Football and Athletic Co (1986) Ltd v Earth Energy Investments LLP (In Liquidation) [2019] EWHC 226 (Ch); [2019] 1 WLR 3709, refusing an application by Mr Millinder to set aside an Extended Civil Restraint Order (“ECRO”) made against him.

An insuperable obstacle is that Empowering Wind MFC and Earth Energy have both been compulsorily wound up. The former was wound up in 2016 on a petition by HMRC; the latter was wound up in 2018 on a petition by Middlesbrough FC founded upon the non-payment of costs awarded in its favour under a consent order signed by Earth Energy’s then solicitors. Mr Millinder was unsuccessful in his attempts to challenge the liquidation of Earth Energy, to which he claimed Empowering Wind MFC had assigned a cause of action against Middlesbrough FC which, by way of set off or cross-claim, extinguished any debt owed by Earth Energy to Middlesbrough FC.

The liquidator of both companies, a Mr Hannon, decided not to pursue any claims either company may have had against Middlesbrough FC. In any event, he was not put in funds to pursue any such claim. The liquidator did not accept that there had been a valid assignment of the cause of action to Earth Energy, and various judges, including the Chancellor in the judgment to which I have referred, have held that there was insufficient evidence to support Mr Millinder’s assertion that there was. Mr Millinder then tried unsuccessfully to pursue the claims himself, which he could not do, because any cause of action remained vested in one or other of the defunct companies.

A further insuperable obstacle is that any claims that might have been pursued by the companies or by the liquidator, had he wished to do so, have long since become time-barred.

As Mr Justice Swift stated in paragraph 7 of his judgment:

“The Chancellor recognised that what Mr Millinder wanted was a court determination of whether [Middlesbrough FC] had acted in breach of contract or had any claim against either of his companies. In his judgment the Chancellor explained very clearly and simply why the opportunity for any such court determination was now long passed”.

A hallmark of Mr Millinder’s behaviour is his willingness to make wild and unsubstantiated allegations of fraud, corruption and conspiracy against any judge who has made a ruling with which he disagrees, particularly any judge who has made an order which prevents him from re-opening arguments which he has already run and lost. He is prone to bombarding the court with voluminous documentation, sent by email, which airs the same grievances and the same misconceived arguments that have been repeatedly aired and rejected by the Court in earlier proceedings. He does not utilise the appropriate procedures for making applications. He is also in the habit of sending deeply unpleasant and offensive email messages not just to judges, but to members of the court staff, who are entitled to go about their jobs without being subjected to such abuse. This sort of behaviour is antithetic to the smooth administration of justice, as dealing with Mr Millinder’s lengthy diatribes diverts the court staff (and the judiciary) from attending to applications made by other court users.

The section 42 order provided, among other matters, that:

“4.

Paul Millinder shall not, without the leave of the High Court, whether personally or through any other person on his behalf or acting under his direction, institute civil proceedings or applications or criminal proceedings in any Court or Tribunal.

…

6.

No application (other than one for leave under section 42 of the Senior Courts Act 1981) shall be made by Mr Millinder, in any civil or criminal proceedings instituted in any Court by any person, without the leave of the High Court.

…

8.

Mr Millinder shall not apply for leave under any of paragraphs 4 to 6 above more than twice per calendar month. Mr Millinder shall not in connection with any such application send more than five messages (whether by correspondence or email) to the Court. Whilst the General Civil Restraint Order made against Mr Millinder on 13 November 2020 remains in force, any such application shall be made only to one of the supervising judges designated under that Order.

9.

Any applications requests or messages sent in breach of paragraph 8 above will not receive any response nor be placed on the court file.

10.

Save as provided in paragraph 8 above or by any further order of the Court, Mr Millinder shall not send any correspondence or emails or communicate in any manner (including by telephone) with Her Majesty’s Courts and Tribunals Service (that expression including for this purpose any judge of any court or tribunal or any judge’s clerk.)”

The reasons for making the orders at paragraphs 8-10 were set out by Mr Justice Swift in paragraphs 44 and 45 of his judgment. He explained that they were a necessary adjunct to the powers under section 42 for the court to prevent abuses of its own process. The limits were reasonable and warranted by Mr Millinder’s behaviour to date.

The effect of paragraph 10 of the section 42 order, read with paragraph 8, is to permit Mr Millinder to correspond with a judge (or their clerk) provided that: (i) the correspondence is in connection with an application under section 42 for leave to bring proceedings and (ii) Mr Millinder has not already sent five items of correspondence in that connection.

Mr Millinder sought permission to appeal to the Court of Appeal against the section 42 order. Permission was refused on the papers by Lord Justice William Davis on 11 November 2021. He gave unimpeachable reasons for refusing Mr Millinder’s request that the application for permission be determined at an oral hearing. He noted that Mr Millinder did not attack the exercise of the Divisional Court’s discretion, but:

“Rather, his submission is that the basis for the Attorney General’s application was fundamentally flawed and underpinned by fraud and ultra vires orders on the part of many different courts and judges.”

Having summarised the background, and carefully reviewed all the materials supplied by Mr Millinder, including very lengthy grounds of appeal, Lord Justice William Davis made these observations:

“The grounds of appeal concentrate on the proposition that all of the orders on which the Divisional Court relied were void due to fraud and that the Divisional Court has lent itself to the conspiracy to pervert the course of justice…

I do not believe that I do an injustice to the main thrust of the Appellant’s case by summarising it thus. All of the orders made by the various judges from 2018 onwards (and the orders on which they depended and relied) are ultra vires and void because of fraud; none of the applications made by the Appellant have been vexatious; rather, the judiciary has been instructed by the corrupt Attorney General to assist the offenders (i.e. those associated with Middlesbrough FC and their representatives); the Divisional Court itself engaged in a conspiracy to pervert the course of justice.”

Lord Justice William Davis then pointed out, correctly, that none of these allegations of fraud and corruption was supported by any evidence. He said:

“ mere assertion does not amount to evidence; the fact that a judge has ruled against the interests of the Appellant does not mean that the judge was acting fraudulently or corruptly. The Appellant cites examples of judges not accepting evidence or submissions. That happens in litigation as a matter of course. A judge is bound to reach a view one way or the other. The party whose interests are not satisfied by a judge’s decision cannot assert fraud or corruption without some proper basis for doing so.”

He went on to say that it was not necessary or appropriate for him to set out in detail the allegations made against the various judges, since none was supported by evidence, though he described many of them as “scurrilous”.

In paragraphs 11 and 12 of his order, Lord Justice William Davis considered and dismissed as unarguable two further legal arguments made in the grounds of appeal, before quoting from the conclusion of those grounds in paragraph 13:

“Fraud does unravel all, even post judgment and there has been a most serious and protracted fraud upon the Court.

161.

All the orders in the case are void from the outset, but moreover, A’s case against the offenders is proven.

162.

In account of all matters, A requests that the appeal be granted and that all orders in the case be set aside and declared void, and that A’s claim, pilfered from him, under the guise of the ECRO false instrument be restored and that A be awarded the sum of the claim against Middlesborough FC, plus standard interest accruing until the judgment is paid in full.”

In response, Lord Justice William Davis stated:

“Fraud must be proved if it is to have the effect submitted by the Appellant. That can only occur in properly constituted proceedings. A case is proven if and only if there is evidence to support it. That is not the position here. Even if the grounds of appeal were arguable (which they are not) and the full Court allowed the appeal, the outcome would not be as set out in paragraph 162 of the grounds. With great respect to the Appellant, that paragraph encapsulates his approach. It assumes that he can relitigate issues determined by other judges without any regard to the finality of litigation.”

The effect of the order of Lord Justice William Davis is that the appellate court has made a final ruling, binding on Mr Millinder, and also on any lower court, upholding the validity of the section 42 Order. The Court of Appeal has determined that there is no evidence that the Divisional Court acted with any impropriety, as Mr Millinder alleges, and that there are no arguable grounds (with any real prospect of success) for challenging the section 42 order on the basis of an argument that it is void because it is based on earlier orders which are also alleged to be void.

Mr Millinder cannot re-open those issues. They have been finally and definitively determined against him on the merits by an appeal court judge who, as he said in his order, had no prior knowledge of Mr Millinder’s existence or any aspect of his involvement with the courts prior to considering his application for permission to appeal.

On 3 March 2022 the Solicitor General issued the present application to commit Mr Millinder for contempt of court on the basis that he had deliberately breached paragraphs 6 and 10 of the section 42 Order by:

The Solicitor General asked for a direction that personal service of the committal application and of the section 42 Order should be dispensed with. There was clear evidence that Mr Millinder had received a copy of the section 42 Order. Indeed, after acknowledging receipt, he had emailed it to Newcastle Crown Court with a query about whether it prohibited him from pursuing his appeal against conviction which was already in train. Of course it did not do that; it did, however, preclude him from seeking to re-open the appeal after it was dismissed.

On 29 April 2022, Mr Justice Kerr made an order for directions which, among other matters, directed that the section 42 Order was deemed to have been served on 6 July 2021; gave permission to serve the application for committal and his order by email to four specific addresses established to have been used by Mr Millinder; and gave directions for the service of evidence by way of denial and/or mitigation if Mr Millinder wished to do so. His order made it clear to Mr Millinder that he had the right to remain silent and put the Solicitor General to proof of each of the alleged acts of contempt; it also drew his attention to his right to legal representation at public expense.

The committal application was supported by an affidavit from Daniel Whitgrave, a legal adviser to the Solicitor General. The Solicitor General asked the Divisional Court to dispense with Mr Whitgrave’s attendance at the hearing, since he could give no direct evidence of the alleged acts of contempt. The function of his affidavit was to exhibit the documents relied upon in support of the application and draw the Court’s attention to certain features of them which were relied upon as evidence of Mr Millinder’s authorship of the communications complained of. This application was not opposed by Mr Millinder, and the Court agreed that Mr Whitgrave’s evidence could be read.

Paragraph 10 of Mr Justice Kerr’s order directed that the hearing of the application was to be conducted “in person” as distinct from a remote hearing via video or other link, subject to further order of the Court. He gave liberty to apply to vary that direction by way of a written application to be filed and served no later than 35 days after the date of service.

Having been warned by the Solicitor General on 6 September 2022 that if he was not present in court for the hearing, the Solicitor General would ask for the matter to proceed in his absence, Mr Millinder made such an application informally, on the basis that he is living abroad, and has been for some years. He sought to rely on the fact that the section 42 application was dealt with by way of a “hybrid” hearing with the judges and counsel for the Attorney-General present physically in court, and Mr Millinder attending virtually by CVP. Whilst that is true, those proceedings were of a very different nature. The liberty of the subject was not then at stake. It would be exceptional for an individual facing an application for committal for contempt of court to be excused attendance in person at the hearing of the committal proceedings. All the acts of alleged contempt were committed within the jurisdiction of the Courts of England and Wales, and the person who is said to be responsible for them cannot use his choice to live abroad as an excuse for refusing to come to court.

Mr Justice Kerr’s order was made and the hearing date was fixed in ample time for Mr Millinder to have made the necessary arrangements to attend court in person, and there was no evidence that he was unable to do so. He appears to be physically healthy, and he did not seek to suggest otherwise. Nor was there any evidence that he could not afford the fare; indeed, he claims to be carrying on business in the Far East. The mere fact that a respondent to a committal application would have to travel a long distance to be present in court is not in itself a good enough justification for departing from the normal position that committal proceedings are held in person, and if the respondent chooses not to attend, the hearing will proceed in his or her absence.

However, the Divisional Court was aware that Mr Millinder was sentenced to a term of 3 months’ imprisonment by Newcastle Crown Court for harassment, which it appears he has not yet served. That means that if he does enter the jurisdiction he is liable to be arrested. That situation gives rise to a number of potential complications, including, if he were arrested, a likely adjournment of the date fixed for the hearing of the committal proceedings, whilst arrangements could be made for him to be brought to Court from prison.

Therefore, although (i) there was no good reason for Mr Millinder’s non-attendance in person; (ii) his absence was plainly voluntary; and (iii) (given that he had filed around 6000 pages of documents in response to the application) there was no likelihood of undue prejudice to the forensic process if the application were to proceed in his absence, the Court decided that the fairest course would be to give him the opportunity to appear remotely by CVP. This enabled him to address the Court in response to the oral submissions of counsel for the Solicitor General, and, if necessary, to advance any mitigation or seek to purge any contempt that might be proved by the Solicitor General in due course. A different course might have been taken if Mr Millinder had availed himself of the opportunity to obtain legal representation at public expense, but as he confirmed at the start of the hearing, he wished to continue representing himself.

A link to the hearing was sent to Mr Millinder for his personal use, which he then took it upon himself to forward to others. He should not have done so. Mr Millinder was attending as a participant in the proceedings, and an exception was being made to the usual rule for him and him alone. Whilst members of the public may apply to attend court proceedings remotely as observers, the direction which enabled Mr Millinder to attend remotely was not made under Section 85A of the Courts Act 2003, nor could it have been. No direction was sought, let alone made, under that section in advance of the hearing and none was applied for at the hearing.

Section 85A, which is supplemented by the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 and by Practice Guidance which came into force on 28 June 2022, makes it clear that those who want to watch and listen to proceedings remotely must identify themselves to the Court beforehand. The default position is that they must provide the Court with their full name and email address. This applies unless the Court permits them to provide some other form of identification, e.g. where a family or other group of people attend from one location (s.85A(3)(b) and paras 11 and 14 of the Practice Guidance.)

This requirement is there to enable the Court to be confident that a person seeking remote access will not risk impeding or prejudicing the administration of justice. If the observer is outside the jurisdiction, those risks are greater, and it is harder to impose sanctions on them for breaches of the ban on filming, recording or transmitting the proceedings (which is both a summary offence and a contempt of court, see section 85B of the 2003 Act). Persons who make a proper and timely application to attend remotely as observers will be reminded by the Court staff of the prohibition, and of the sanctions for breach, in advance of the hearing. This enables the orderly administration of justice.

Bearing in mind and giving due weight to the principle of open justice, notwithstanding the complete absence of any access request and the failure to follow the requisite procedure, the Divisional Court was prepared to consider making a direction under section 85A. Therefore, on learning that Mr Millinder had shared the link with four other individuals, whose names were supplied but who did not turn on their cameras, each of those individuals was asked in turn to supply the Court with their email addresses and to unmute their microphones so that they could confirm (orally) that they understood that they were not allowed to record or transmit the proceedings. There was no response to those requests.

These proceedings did not raise any particular issues of wider public importance, and the media and the general public were able to attend the hearing in open court. The Court had no idea of the whereabouts of the individuals to whom Mr Millinder had passed on the link, and they were clearly unwilling to sufficiently identify themselves remotely, a statutory requirement which cannot be relaxed. The Court was far from satisfied that affording remote access to individuals associated with Mr Millinder who were not prepared to even engage with the Court’s requests for belated compliance with the statutory requirements, would be compatible with the interests of justice.

In those circumstances, the Court was not prepared to make a direction for remote observation of its own motion. It therefore directed that the links be terminated to all but one of the individuals, a Mr Walsh, whose company Deuda Ltd had made an application which was listed to be heard on the same occasion as the contempt proceedings, and who might therefore be legitimately characterised as a participant. Mr Walsh was given the opportunity to make representations in respect of that application, which was dismissed for reasons given in a short ex tempore judgment delivered orally at the hearing.

Shortly before the hearing, an email was sent by Mr Millinder to the Administrative Court Office which, among other matters, said the following:

“I note that Andrews LJ has been re-installed into this case, acting knowingly in conflict. I allege that Andrews LJ perverted the course of justice by suppressing all my evidence of criminality during the void s.42 proceedings. The evidence supports that conclusion. Judges who collude and pervert the course of public justice, acting with favour and ill-will to conceal criminality are not judges, they are criminal offenders. You, Andrews LJ, are proven to have done that …. The Court is not properly constituted.”

In the light of this missive, I inquired of Mr Millinder at the start of the hearing whether he was asking me to recuse myself from hearing the committal application on the basis that I had been a member of the constitution of the Divisional Court which made the section 42 order. Mr Millinder said no, he was not objecting to my hearing the application, although that was not going to stop him from repeating his allegation that I had conspired to pervert the course of justice.

In advance of the hearing, the members of the Court had already considered for themselves whether the fair and independent-minded observer would be concerned about my ability to deal with the application fairly and dispassionately. We had each independently considered the points made in Mr Millinder’s email and formed a provisional view. We then discussed the matter, and were in agreement that there would be no such concerns. No new points were subsequently raised in oral argument.

There is no conflict involved in a judge who made the original order hearing an application for committal based upon alleged breaches of that order. In a case such as this, some familiarity with the complex history of the proceedings and of the underlying dispute is an advantage. A litigant in person cannot engineer the recusal of a judge simply by making false allegations of corruption and criminality against them, using the fact that the judge concerned knows them to be false as a basis for claiming that there is a conflict. Most significantly, perhaps, the fair and independent-minded observer would be aware that the Court of Appeal had upheld the validity of the section 42 Order and had dismissed as unarguable Mr Millinder’s challenges to it on the basis of the alleged conspiracy to pervert the course of justice, of which there is and was no evidence.

The other member of the constitution, Mr Justice Cavanagh, has had no prior dealings with or knowledge of Mr Millinder. I myself had no knowledge of any of the events that had occurred after the making of the section 42 order, including the appeal, until I came to read the papers in preparation for the hearing.

None of the correspondence with Mr Justice Fancourt or his clerk or with HH Judge Prince complained of by the Solicitor General concerns an application under section 42. The fact of the correspondence therefore establishes a breach of paragraph 10 of the section 42 order, subject to proving the identity of the person who engaged in the correspondence. Likewise, if it is proved that the application to the Crown Court at Newcastle to re-open Mr Millinder’s conviction was made by Mr Millinder, he did not obtain the prior leave of the High Court as required by paragraph 6 of the section 42 order, and therefore the application was a breach of that paragraph.

The burden of proving the acts of contempt lies on the Solicitor General and the standard is the criminal standard. The Divisional Court had to be sure, in the case of each of the fifteen emails, that Mr Millinder sent it.

Eight emails were sent to Mr Justice Fancourt in the period from 24 September 2021 to 13 November 2021. Two further emails were sent to his clerk on 7 December 2021. By that date, Mr Millinder must have known that Lord Justice William Davis had confirmed the validity of the section 42 Order and refused permission to appeal against it. The email addresses which were used by the sender were ones that were used by Mr Millinder to send other correspondence. The style is distinctive, and in some cases the author signed them “Paul Millinder”. In other cases, the author signed as “Intelligence UK International SA,” which is a name that Mr Millinder is associated with. Sometimes he used both names. Since the content of the emails is also relevant to the question of their authorship, I shall set out a number of extracts.

Email 1: sent on 24 September 2021 at 05:08 from cps@uk01.co.uk.

Email 2: sent on 14 October 2021 at 03:02 from i@i1uk.com

Email 3, sent on 19 October 2021 at 13:21 from i@i1uk.com

Email 4, sent on 22 October 2021 at 08:30 from i@i1uk.com

Email 5, sent on 1 November 2021 at 03:58 from i@i1uk.com

Email 6. Sent 7 November 2021 at 13:34 from i@i1uk.com

Email 7 – Sent on 12 November 2021 at 02:50 from i@i1uk.com

Email 8. Sent on 13 November 2021 at 02:05 from i@i1uk.com.

Email 9. Sent to the clerk to Fancourt J on 7 December 2021 at 01:09 from i@i1uk.com

Email 10. Sent to the clerk to Fancourt J on 7 December 2021 at 02:37 from i@i1uk.com

“INTELLIGENCE UK INTERNATIONAL

For and on behalf of Mr Millinder (Prosecution / Informant)

There has been a protracted conspiracy to pervert the course of justice in this case, in both civil and criminal proceedings and this is coming from Buckland, the former Lord Chancellor, and now the Attorney General's Office and Raab, Tory freemason criminal racketeers who have been coercing the judiciary to prevent justice being served on the offenders, fellow Tory Teesside asset stripping white-collar criminals.”

On 13 December 2021 at 05:18 an email was sent to Newcastle Crown Court from Intelligence UK International i@i1uk.com. The subject was “Application to set aside the void orders and transcript request”. Mr Millinder’s appeal against his conviction had been dismissed three days earlier, on 10 December. The text is addressed to Newcastle Crown Court and is written in the first person. It is signed Paul Millinder. It says that it encloses two applications and two supporting witness statements. Again the style is distinctive. The contents include the following:

“ 1.APPLICATION-SET-ASIDE 13 12 21. My 5-page application, exercising my constitutional right ex debito justitiae to have the void orders set aside. I have, additionally, identified serious disclosure failings by the CPS and police, gross human rights abuse and the fact that the evidence referred to during the trial was never even served on me in any event.

Mr Millinder is further alleged to be in contempt of court in that, in breach of paragraph 10 of the section 42 order, he sent four e-mails to His Honour Judge Prince from the e-mail address i@i1uk.com.

Email 1: Sent on 21 December 2021 at 11:45

Email 2: Sent on 21 December 2021 at 11:59

Email 3, sent on 23 December 2021 at 03:57

Email 4, sent on 31 December 2021 at 17:53.

As Mr Hays, on behalf of the Solicitor General, submitted, the evidence that Mr Millinder sent all these emails is overwhelming. There is no need to repeat Mr Whitgrave’s detailed forensic analysis of the correspondence, which the Court accepts, and which Mr Millinder did not seek to challenge. It establishes that the first email sent to Mr Justice Fancourt was sent from an address that was set up by Mr Millinder to correspond with the CPS, but which he also used for correspondence with Newcastle Crown Court. It refers to the reference number for his appeal in the Newcastle Crown Court. It reiterates complaints about the GCRO which were rehearsed in the section 42 proceedings. The other emails not only bore Mr Millinder’s name or that of Intelligence UK but were sent from another email address associated with him, which he used for correspondence in connection with the criminal proceedings.

All but one of the emails were signed by Mr Millinder or by Intelligence UK. As Mr Whitgrave establishes, a telephone number given for Intelligence UK is the number given for Mr Millinder in an application he made for a summons or warrant for the arrest of Mr Justice Fancourt which was one of the attachments to the first email.

The theme, style and language of all the emails is distinctive; there are repeated references to a conspiracy by “Jewish Zionist Freemasons”. That phrase, or variants of it, appears in various different pieces of correspondence from Mr Millinder referred to by Mr Whitgrave in his Affidavit. The correspondence sent to Mr Justice Fancourt also refers to matters relating to the underlying litigation, including references to Middlesbrough’s solicitors, Womble Bond Dickinson (UK) LLP, its general counsel Mr Robin Bloom, and Mr Hannon, the liquidator of the two companies.

There is no other plausible candidate who might have sent the correspondence and, as mentioned earlier in this judgment, Mr Millinder had made it clear from the outset that he had no intention of complying with the section 42 order. Finally, when he was expressly asked by me at the hearing whether he sent the emails, (after having been reminded of his right not to incriminate himself), Mr Millinder did not deny it. Whilst he did not expressly admit it either, he did say that he had “done nothing wrong” because the section 42 order was void, and he contended that he was not obliged to comply with a void order.

The Court was therefore satisfied beyond all reasonable doubt that Mr Millinder sent each of the fifteen emails, and that these were deliberate, contumacious breaches of the terms of the section 42 order.

Mr Millinder’s sole excuse for these acts of deliberate disobedience to a court order was that the section 42 order was a nullity, as the Divisional Court acted ultra vires in making it. He submitted that the Divisional Court only had power to make such an order under section 42 when the defendant had been issuing vexatious claims and applications or otherwise abusing the process of the court. In his skeleton argument for the hearing, supported by his earlier skeleton arguments, witness statements and “reports” (all of which are in the voluminous supplementary bundle) Mr Millinder contended that the various sets of proceedings he had brought were designed to “remove proven fraudulent liabilities in insolvency proceedings” and were therefore not vexatious.

The short answer is that the Divisional Court had the power under statute to make the order, and it did so after a hearing in which the burden of proof was on the Attorney General to prove that Mr Millinder was a vexatious litigant, and that burden was discharged. On that occasion, as he accepted at the time (see my judgment in the section 42 proceedings) Mr Millinder was given a full and fair opportunity to explain why his prior conduct was not vexatious. He argued his case at some length, and the Court ruled against him for the reasons set out in the judgments that were handed down in the section 42 proceedings. It is not open to Mr Millinder to re-litigate that issue, which has already been conclusively determined against him. It is difficult to think of anyone who more aptly fits the description of a vexatious litigant than Mr Millinder.

Moreover, Mr Millinder was refused permission to appeal against the section 42 order. There appears to be a striking similarity between the arguments that Mr Millinder has put forward in answer to the contempt application and those in the grounds of appeal to which Lord Justice William Davis alluded. The Court of Appeal has held that none of those grounds is arguable with a real prospect of success.

As Mr Hays submitted, once the section 42 order was made and Mr Millinder had notice of it, it was enforceable against him. It is no answer to an application for contempt based on breaches of a court order to argue that the order should never have been made in the first place; the remedy is to appeal. In this case, Mr Millinder has exhausted his rights of appeal and the order has been upheld. However, even if an appeal is successful, the order under challenge remains valid and must be complied with unless a stay has been granted, until such time as the appeal court sets it aside.

Mr Millinder contends that this was wrong because of certain observations made by Lord Denning in MacFoy v United Africa Ltd [1962] AC 152, an appeal to the Privy Council from the West African Court of Appeal. The issue in that case was whether a statement of claim, delivered in the long vacation (which in those days was not permitted under the procedural rules) was a nullity. The appellant contended that it was, and that all subsequent proceedings were void. His appeal was dismissed. Lord Denning, delivering the judgment of their Lordships, said at page 160:

“The defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Lord Denning’s observations, which were obiter, and made in a case which is only of persuasive authority, were directed specifically at the validity of acts by individuals, such as the service of proceedings. He was not considering , let alone alluding to, orders of the court, which are treated as valid for all purposes unless and until they are set aside. Mr Millinder has exhausted his rights of challenge to the various court orders of which he complains, including those made in the insolvency proceedings; although he refuses to accept it, there must be finality in litigation.

The Court made it clear at the hearing of the committal proceedings that it was not prepared to allow Mr Millinder to rehearse the same arguments concerning the underlying litigation that he had rehearsed at length in his written submissions, and which had been aired extensively both at the section 42 hearing and on previous occasions, including before the Chancellor and before Mr Justice Fancourt. When it was put to him, Mr Millinder had no answer to the point that he had unsuccessfully sought to persuade the Court of Appeal that it was arguable that the section 42 order was void or that there had been a conspiracy to pervert the course of justice by the members of the Divisional Court who made that order (or by any other judges).

Even if the person who breaches the order genuinely believes that he is entitled to do the acts complained of, that will afford him no defence: see Khawaja v Popat & Another [2016] EWCA Civ 362 per Lord Justice McCombe at [32] and the authorities there cited.

It was made clear to Mr Millinder that the Court was willing to listen to anything that he wished to say by way of excuse or mitigation which did not involve repetition of the arguments that had been aired and dismissed on previous occasions. However, when he was told that the Court was not prepared to listen to arguments which had no bearing on any defence to the application for committal, Mr Millinder logged off from the remote hearing.

In the light of Mr Millinder’s disengagement with the process, the Court paused the committal proceedings to deal with the application relating to Mr Walsh’s company, and scheduled the sanctions hearing for 2pm. I directed that a message be sent to Mr Millinder to inform him that the hearing would resume at 2pm and that if he wished to say anything by way of mitigation or in relation to the question of sanctions, he would be heard. This was done. However, although the Court kept the CVP link open, Mr Millinder did not re-join the hearing.

The Court therefore had to consider whether it was appropriate to proceed with the sanctions hearing in Mr Millinder’s absence, given that he had been afforded an opportunity to address the Court. Mr Hays drew the Court’s attention to para 81.28.6 of the White Book and to the list of relevant factors set out in paragraph 5 of the judgment of Mr Justice Cobb in Sanchez v Oboz [2-15] EWHC 235 (Fam).

Mr Millinder was undoubtedly served with all the relevant documents; Mr Hays confirmed that all the documents had been served in accordance with Kerr J’s order at the email addresses specified in that order. Mr Millinder had failed to co-operate with the Treasury Solicitor’s attempts to agree the contents of the bundles for the hearing. In the course of the morning, the Court rose for a short time so that Mr Millinder could be supplied with links to the electronic Core Bundle, because he claimed that he had not received the Solicitor General’s skeleton argument. Mr Millinder supplied a different email address for the purpose of being sent the link to the Core Bundle, which was an address he claimed he had been using for some time. Given that Mr Millinder’s precise location is unknown, and that he is outside the jurisdiction, the Court proposes to dispense with personal service and to direct that a copy of this judgment and the committal order be sent to Mr Millinder at that email address, and that this will constitute good and valid service upon him.

The Court was satisfied that when he logged off the CVP system, Mr Millinder deliberately waived his right to continue to be present remotely, and that an adjournment of the sanctions hearing to another occasion would be unlikely to facilitate his attendance. He had terminated the link voluntarily out of pique because the Court was not prepared to allow him to repeat irrelevant arguments that had already been covered extensively in the 6000 pages of documents he had lodged in response to the application. He had already made it clear that he did not wish to avail himself of his right to legal representation at public expense. No prejudice would be caused to Mr Millinder nor to the forensic process by continuing with the hearing. It was plainly in the interests of justice and in accordance with the overriding objective for the matter to proceed without any further delay.

The approach to be taken by the Court when considering the appropriate sanctions for proven contempt of court was usefully summarised by the Supreme Court in Attorney General v Crosland [2021] UKSC 15 at [44] as follows:

The purposes of a committal order are to punish the offender and to deter further conduct of a similar nature. For a first offence or series of offences, deterrence should be the paramount consideration. Committal is a sentence of last resort.

The breaches of the section 42 Order were undoubtedly serious and deliberate. The culpability is high. The harm is the serious prejudice that repeated and deliberate flouting of court orders causes to the due administration of justice. In this case the order that was breached was imposed as a last resort to restrain vexatious litigation, both civil and criminal, when the ECRO and GCRO proved to be no deterrence. It was expressly designed to preclude Mr Millinder from continuing with his objectionable behaviour. There is no question of Mr Millinder acting under any pressure. He made it clear from the onset that he had no intention of obeying the order, a position which he persists in maintaining. He has shown no remorse and offered no apology. He refuses to acknowledge the authority of the court. Those features are sufficient in and of themselves for the conduct to cross the custodial threshold. A fine would not be an adequate response. Mr Justice Adam Johnson so held in Rowland v Stanford [2022] EWHC 1713 (Ch), a case in which, like Mr Millinder, the defendant “appeared topersist in the fiction that the order is null and void and has no application to him.”

In terms of aggravating features, the emails were sent to three different recipients (Mr Justice Fancourt, his clerk, and His Honour Judge Prince – I am not treating Newcastle Crown Court as a further recipient) over a period of three months. They are similar to conduct that Mr Millinder has been warned about before, and there are numerous examples of such conduct. There is a very long history to this matter, and the position has been made clear to Mr Millinder time and time again. He continues to attempt to re-open litigation that is final and to generate vexatious, prolix documents; and, as I have said, previous orders of the Court have proved to be no deterrent.

Mr Millinder sought permission to appeal against the section 42 Order and it was refused; some of the breaches occurred after Mr Millinder became aware of Lord Justice William Davis’s order.

The language of the emails is not just intemperate and contumelious, but threatening and sinister. Those falling into Category 1 were plainly designed to instil fear in the recipient for their personal safety and potentially that of their family. In the second email, Mr Millinder indicated that he and unidentified associates (he used the word “we”) had traced Mr Justice Fancourt’s home address, and that he was under surveillance. He was told “we are coming for you”. Likewise in the ninth email his clerk was told “we have you under surveillance”. The first email also insinuated, falsely, that Mr Justice Fancourt was subject to an ongoing investigation or process. The sixth suggested that a report had been made to the City of London police. The section 42 order was made against a background of Mr Millinder attempting to institute private prosecutions against judges whose decisions he dislikes; the attachments to the first email demonstrated that he was at it again.

Mr Millinder has repeatedly used racist and otherwise offensive language to insult members of the judiciary. He has repeatedly made wholly unsubstantiated and false allegations of corruption, dishonesty and criminal conspiracy against different judges, for no reason other than that they have rejected the arguments that he has advanced before them for reasons that are clear, cogent and legally unimpeachable. He has also been rude, oppressive and unpleasant to court staff. He has demonstrated by these specific communications sent in breach of the section 42 order that Mr Justice Swift’s characterisation of him as a bully who attempts to browbeat the Court into giving him what he wants, was fully justified.

A further aggravating feature is that Mr Millinder has also been convicted of the criminal offence of harassment of solicitors who work for Womble Bond Dickinson, and sentenced to 3 months’ imprisonment. That conviction relates to matters which occurred before the breaches of the section 42 order in this case. No issue of totality arises in connection with the imposition of that earlier sentence; there is no relevant overlap. Any sentence imposed by the Divisional Court will run consecutively. That means that in practical terms, if the order for committal is enforced it is unlikely to be Mr Millinder’s first experience of custody.

As to mitigation, none has been advanced. It is possible that Mr Millinder is delusional, though there is quite a lot of room for doubt about that. He is certainly vindictive and spiteful. Even a genuine belief that he has been wronged, and that previous court orders have been unjust, affords no mitigation for his behaviour. Court orders are to be obeyed, and it is not open to an individual like Mr Millinder to choose to flout them because he disagrees with them or because they prevent him from seeking to relitigate matters that have been finally disposed of. Nor can he seek to hide behind the fact that he is living outside the jurisdiction.

The maximum period of imprisonment that may be imposed by a superior court for contempt of court on any occasion shall not exceed two years. There are no sentencing guidelines. Mr Hays helpfully drew the Court’s attention to some authorities by way of illustration. The nearest to the facts of this case was Foskett v Ezeugo [2018] EWHC 3694 in which the Court imposed a sentence of 12 months’ imprisonment on an individual who had repeatedly breached an order that prohibited him from harassing certain judges before whom he had previously appeared. As in this case, the defendant’s answer was that the order made against him was not lawfully made and that it was the product of a conspiracy against him orchestrated by many senior judges. Mr Justice Openshaw assessed that he genuinely believed this to be true.

Each case, of course, turns on its own facts. In the Ezeugo case, the majority of the offending acts consisted of vituperative and offensive postings on social media, although there were also abusive emails. The defendant appeared to be acting on his own. The transcript does not reveal what the Court took into account by way of mitigation, though it is clear that the defendant was present and addressed the Court. There is no suggestion that the abuse, deeply unpleasant though it was, had any racist element, nor that there were any thinly veiled threats to the personal safety of those against whom the campaign of harassment was directed. It also appears that the abuse was directed solely at full time or part-time members of the judiciary, and not against members of court staff. Nor, so far as I can tell, did the defendant in that case have a past conviction for harassment arising from similar behaviour towards other legal professionals.

All these factors, in my judgment, justify a longer sentence than that imposed in the Ezeugo case, whilst of course the Court recognizes that there may be cases of even worse behaviour which might attract sentences at or towards the top of the available range. The shortest term that can be imposed commensurate with the seriousness of the breaches, bearing in mind the totality of the offending, is one of fifteen months’ immediate imprisonment for the breaches of paragraph 10 of the order and fifteen months’ immediate imprisonment for the breach of paragraph 6 of the order, which will be served concurrently. Nine months of the overall sentence represents punishment for the breaches to date, and the further six months is intended to secure compliance with the order in the future. By reason of section 258(2) of the Criminal Justice Act 2003 half of that 15 month period will be served in prison and Mr Millinder will then be released unconditionally.

The Court considered whether to suspend the sentence. There is no evidence that an order for Mr Millinder’s committal, if it were enforced, would impact adversely on any other member of his household. Although suspension of the order of committal is a course that the Court often takes for a first offence, on condition that the contempt is purged, the purpose of suspension in those circumstances is to secure compliance. In this case the Court is satisfied that suspending the order would make no difference whatsoever to Mr Millinder’s behaviour. Should he ever come to his senses, he will have the opportunity to make an application to the Court under CPR 81.10 to purge his contempt and discharge the committal order. For the avoidance of doubt, permission to do so is granted without the necessity of further application to the High Court. However, any such application must be made by an application notice under CPR Part 25 and on payment of any requisite fee.

Paul Millinder has been found to be in contempt of court in that in breach of an Order of the Divisional Court made on 6 July 2021 under s.42 of the Senior Courts Act 1981 imposed in respect of his conduct as a vexatious litigant:

As indicated at the hearing, the time for appealing to the Court of Appeal against the order for committal will run from the date on which the judgment is formally handed down. Mr Millinder has the right to appeal without obtaining permission. He is entitled to legal aid for representation. The appellant’s notice must be lodged with the Court of Appeal within 21 days after judgment is handed down, irrespective of the date on which the court order is sealed.

I agree.