Branch & Ors v Department for Constitutional Affairs

Today is the much delayed hearing of an Application made by notice dated 20^th August 2004. The notice is issued by the Defendant, the Department for Constitutional Affairs represented by the Treasury Solicitor. The Application is for an order that particulars of claim in these proceedings be struck out pursuant to rule 3.4 (2) (a) of the Civil Procedure Rules because it discloses no reasonable grounds for bringing the claim.

CPR 3.4 provides as follows, so far as relevant:

“(2)

the court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing… the claim…”

In this action the first Claimant is Mr Anthony Branch. The second, third and fourth Claimants are members of his family, Shirley, Simon and Joel.

On 25^th June 2004 the Claimants issued proceedings against seven defendants. The first is the Department for Constitutional Affairs. The second is the Companies Court. The third is the Administrative Court. The fourth is the Divisional Court. The fifth is the Bournemouth County Court. The sixth is the Croydon County Court and the seventh is the Kingston County Court. Brief details of the claim are given in the Claim Form as follows:

“This Claim is made under the Human Rights Act 1998, particularly Section 6(1) thereof, in respect of the unlawful behaviour of the Department of Constitutional Affairs and the Courts stated to Wilfully prejudice and Damage the Claimants by Causing/ Imposing Wrongful decisions and Costs Liabilities on them in Breach of Convention Rights, UK Statute Law, Court of Appeal Case Law and House of Lords Case Law including acting against Case Law flowing from the Lord Chief Justice and the Master of the Rolls. Repeated Denial of allowing the Claimants to be Heard in Accordance with Article 6 of the convention and demonstrating Anti–Semitism against the Claimants as Jews and unlawfully punishing them in order to favour interalia Halifax Plc and Solicitors Lester Aldridge and Turners and a certain Steven Owens. The Claim is for Damages, Exemplary Damages and Costs… ”

The provisions of the Human Rights Act 1998, including s.6, under which proceedings may be brought are as follows:

6.

- (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)

Subsection (1) does not apply to an act if-

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section "public authority" includes-

(a)

a court or tribunal, and

(b)

any person certain of whose functions are functions of a public nature,...

(6)

"An act" includes a failure to act...

7.

- (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, ...

but only if he is (or would be) a victim of the unlawful act.

(5)

Proceedings under subsection (1)(a) must be brought before the end of-

(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

(6)

in subsection (1)(b) "legal proceedings" includes-

(a)

proceedings brought by or at the instigation of a public authority; and

(b)

an appeal against the decision of a court or tribunal.

...

8.

- (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2)

But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3)

No award of damages is to be made unless, taking account of all the circumstances of the case, including-

(a)

any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b)

the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4)

In determining-

(a)

whether to award damages, or

(b)

the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention...

(6)

In this section-

"court" includes a tribunal;

"damages" means damages for an unlawful act of a public authority; and

"unlawful" means unlawful under section 6(1).

9.

- (1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only-

(a)

by exercising a right of appeal;

(b)

on an application (in Scotland a petition) for judicial review; or

(c)

in such other forum as may be prescribed by rules.

(2)

That does not affect any rule of law which prevents a court from being the subject of judicial review.

(3)

In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

(4)

An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.

(5)

In this section-

"appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him;

"court" includes a tribunal;

"judge" includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court;

"judicial act" means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and

"rules" has the same meaning as in section 7(9).

The Particulars of Claim are set out in a ten-page document dated 14^th June 2004. On 30^th June 2004 Master Turner made an order. The second to seventh Defendants were struck out under CPR 3.3 (court’s power to make order of its own initiative). The order recites that the Department of Constitutional Affairs deals with all matters arising out of the business of the Courts. On 19^th July 2004, on the application of the Claimants without notice and under Rule 3.3 time for service of the Particulars of Claim on the sole remaining Defendant was extended to 27^th July. On 3^rd August 2004 the Claimants sent a letter to the Defendant, amongst others, in which they said that the contents of the letter were introduced as an “extension” to the Particulars of Claim in this action. On 6^th August the Defendant acknowledged service of the proceedings. On 31^st August the Claimants served a second document, which they stated to be “an extension” of the Particulars of Claim. On 20^th August the Application Notice before me was issued.

Correspondence followed. On 25^th November 2004 the Master directed that the Application be listed before a Judge. On 26th November 2004 the Claimant asked for a hearing in March 2005. On 17^th December 2004 Eady J made an order for directions. He ordered that “the Defendant’s application dated 20^th August 2004 and the issue of whether the Courts should make a general or extended Civil restraint order be adjourned to 21^st March 2005”, namely today. He ordered the filing of skeleton arguments. The matter came before Gray J on 6^th January 2005. He made no order save as to costs which he ordered to be paid by the Claimant. On 4^th February 2005 the matter came before Mitting J. The Claimants had issued a notice dated 28^th January 2005 seeking a declaration of incompatibility of Section 42 of the Supreme Court Act 1981 with the Human Rights Act 1998 and other relief. Mitting J declined any relief and ordered the Claimants to pay the Defendants half of their costs summarily assessed at £150.

The Supreme Court Act 1981 Section 42 provides as follows:

“42.--(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground--

(a)

instituted vexatious legal proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or

(b)

made vexatious applications in any legal proceedings, whether in the High Court or any inferior court, and whether instituted by him or another,

the court may, after hearing that person or giving him an opportunity of being heard, order--

(i)

that no legal proceedings shall without the leave of the High Court be instituted by him in any court; and

(ii)

that any legal proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and

(iii)

that no application (other than an application for leave under this section) shall without the leave of the High Court be made by him in any legal proceedings instituted, whether by him or another, in any court.

(3)

Leave for the institution or continuance of, or for the making of an application in, any legal proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.

(4)

No appeal shall lie from a decision of the High Court refusing leave for the institution or continuance of, or for the making of an application in, legal proceedings by a person who is the subject of an order for the time being in force under subsection (1).

(5)

A copy of any order made under subsection (1) shall be published in the London Gazette.”

On 17^th February 2005 Her Majesty’s Attorney General made an application to the Divisional Court constituted by Moses and Stanley Burnton JJ. Having read a Claim Form dated 26^th November 2004 issued by the Attorney the Court ordered:

“That the Claimant’s Application be granted and that the said Anthony Branch and Shirley Branch by himself, herself, agents or servants be and is hereby prohibited from:

1)

Instituting any civil proceedings in any Court.

2)

Continuing any civil proceedings instituted by him and /or her in any Court before the making of this order.

3)

Making any Application other than an Application for Permission as required by the Section 42 of the said Act in any civil proceedings instituted in any Court by any person unless Anthony Branch and Shirley Branch obtains the permission of the High Court having satisfied the High Court that the proceedings or the Application are not an abuse of the process of the Court in question and that there are reasonable grounds for the proceedings or Application.”

The Defendant was represented before me by Ms Michalos. She made clear that the Defendant wished to pursue the Application issued on 20^th August 2004 notwithstanding that, so far as the first and second Claimant are concerned, the effect of 17^th February 2005 was that neither of them could pursue this action without permission. No application for permission is before me. The Defendants want the action struck out as against all four Claimants and they want to be in a position to ask for costs. Ms Michalos also made clear that the Defendant was not seeking a civil restraint order today. It is not needed as against the first and second Claimant.

In summary the Defendant contends that:

I turn therefore to the Particulars of Claim. Paragraph 1 of that document reads as follows:

“The Claimants contend that the Department of Constitutional Affairs has so arranged matters in the Courts that none of the Claimants are able to be heard on any matter in any Court without being Stuck Out in the face of Powerful Statute Law and Case Law supporting the Claimants and that the DCA go to extreme lengths to prevent any family members being so heard to repeatedly Violate the Human Rights of the Family Members under Article 6 of the Convention and the right not only to have a fair hearing but also to have any hearing”.

Insofar as material, Article 6 of the Convention provides that

“In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

The second paragraph of the Particulars of Claim refers to a decision made on 29^th April 2002 in the Croydon County Court by His Honour Judge Coningsby QC. That judgment was given in an action commenced by the third Claimant against the Lord Chancellor’s Department. It arose out of two incidents of alleged wrongful conduct by the staff of the Kingston County Court in relation to proceedings for disclosure prior to bringing action which the third Claimant commenced against his grandmother. He sought disclosure of the pass book relating to an account for which she was alleged to be the trustee or nominee. The action had been struck out by the Deputy District Judge. The appeal was allowed. The third Claimant’s grandmother is a Mrs Leader and the case number for the Claim against the Lord Chancellors Department is KT103953. The Particulars of Claim in this particular Action alleged that the Defendant had adopted an improper and vindictive stance following that defeat.

The first substantive allegation in the Particulars of Claim is in paragraph 4. That refers to a letter which is designated Exhibit A. It is dated 23^rd July 2004. It is written by Messrs Owens and Porter to the Claimants. That firm is a firm of property management consultants of whom the principal is Mr Steven Owens. It is stated to be in response to three faxes of five pages in total, sent by the first Claimant. It complains about correspondence from the Claimants. So far as the present action is concerned the allegation is that:

“Mr. Owens… seeks to make himself the shotgun avenger for the DCA in his taking on the role of harassing and intimidating the Claimants for the Proceeding against the DCA and mentions about Court Officers and Police Officers being suspended in his deranged latest letter attached”.

There is no allegation in the Particulars of Claim supporting the assertion that that letter is written on behalf the Defendant. There is nothing in the letter itself to suggest that it is. It is therefore not necessary for me to consider whether it amounts to harassment within the meaning of the Protection from Harassment Act. It is quite plain that it provides no basis whatever for a Claim against this Defendant.

The next matter referred to in the Particulars of Claim is a Claim Form issued on 3^rd June 2004, some three weeks before the present Claim. The Claimants in that action are the first and second Claimants in this action. The Defendants in that action are ten in number. They are named individuals described by reference to their offices as follows: the Clerk to Bournemouth Magistrates, the Deputy Clerk to Bournemouth Magistrates, the Chief Executive to Bournemouth Magistrates, a CPS caseworker at Ludgate Hill, a Dorset Police Officer, a Dorset Police Solicitor, a person described as “Divisional Court RCJ”, the Clerk to Mr Justice David Richards, a person identified as “Companies Court Orders Section” and Chancery Listing, Room WG 4. The brief details of the Claim (that is Claim number HQ 04X0167) are set out as follows:

“Misfeasance in public office by the Defendants in their wilfully and unlawfully prejudicing and damaging the Claimants in:

a)

Bournemouth Magistrates Court (D1, D2, D3, D4)

b)

Administrative/Divisional Court, RCJ (D1, D3 and D7)

c)

Companies Court RCJ (D8, D9, D10)

d)

Queens Bench Division, RCJ (D6)

e)

Acting in bad faith and perverting evidence as a police inspector (D5)

f)

Unlawfully demanding £1,300 from the Claimants (D1, D2 and D3)”.

The substance of this complaint appears to be that the Claimants were convicted in the Magistrates Court at Bournemouth on the basis of information laid by the CPS caseworker identified as the fourth Defendant in that action. The complaint also appears to be that the conviction was not quashed in the Divisional Court. This is attributed to the seventh Defendant in that action. The complaint about the fifth Defendant in those proceedings appears to be related to his handling of a complaint of alleged mistreatment of the Claimants by the Dorset Police. I do not need to consider that further. This Defendant is, of course, not in law responsible for the actions for the actions of the Dorset Police. The same applies to the allegations in that action against the Solicitor for the Dorset Police.

The allegation against the tenth Defendant arises out of a letter received by fax in the office of the Clerk of the Lists on 16^th December 2003. The letter is addressed to the Clerk to Mr Justice David Richards and asks for there to be put before him an attached document which it is said was anonymously circulated to all the residents at “the Oasis last weekend”. That judge was due to hear the following day a petition by the first Claimant in this action against various respondents including Mr Owens in the form of a petition under part XVII of the Companies Act 1969 Case Number 321502033.

In this action it is said that that document is “profoundly defamatory” the contents are not set out nor is the meaning complained of. It follows that there is not disclosed any cause of action in defamation.

The eighth and ninth Defendants in that action are also alleged to be publishers of the document complained of in addition the eighth Defendant in that action, the Clerk to the Judge. She is alleged to be responsible for the judgment delivered by the Judge in that action. Allegations of dishonesty are made against all the ten Defendants to that action. It is said that they knew what they were doing were wrong and they did it in order to damage the first Claimant and his family by spreading the defamation. However, there is no allegation of what it is that is alleged to be false, or of the facts and matters relied on to show that any and each of the Defendants in that action knew that those matters were false, or that they were doing what they did with the dominant motive of injuring the Claimants or that they were not acting in pursuance of what they believed to be their official duties.

On 15^th July 2004 Master Tennant made an order in that action of his own initiative. It provided that the Particulars of Claim be struck out under CPR Rule 3.4 (2) (a) and (b):

“as being obscurely diffusely and incoherently pleaded, so that no Defendant can ascertain what cause of action supported by what allegations of fact relevant to that cause of action are being advanced”.

He described the action as being totally devoid of merit. The order provided that the Claimants could apply to have it set aside within seven days.

In this action it is pleaded that that order of Master Tennant is “profoundly and staggeringly wrong” and that it was made “in order to unlawfully to favour the DCA”. It is said that “the Defendant must have approached Master Tennant” to issue that order. There is nothing pleaded to support this allegation of dishonesty. It is said that the first and second Claimant are now appealing to this Court from that Order. If so, that is not before me. These matters are also alleged to constitute breaches of Article 7 and Article 3 of the Convention as well as Articles 8, 9, 10, 14 and 17. The case continues: “the Order of Master Tennant of 15^th July 2004 is an affront to the Will of Parliament and the DCA are responsible for the Master”.

Apart from the total lack of any particulars to support these serious allegations of dishonesty, it is plain from Section 9 of the Human Rights Act that the complaint is in respect of a judicial act and may be brought, in relation to an Order of a Master, only by exercising a right of appeal. Further, it is plain that the liability of the Defendant is barred by Section 2(5) of the Crown Proceedings Act 1947. Given that there exists a right of appeal from a Master to this court, there is no substance whatever in the Claimants’ contentions that they have a remedy by action brought by other means in this court.

The next matter relied on in the present proceedings is an allegation made in relation to the petition 3215 of 2003 already referred to. This was a petition under Section 459 of the Companies Act 1985 alleging invalid appointment of Directors, defects in accounts, void resolutions, defamation of the first Claimant and various allegations against Mr Owens concerning the funds of The Oasis (Poole) Management Limited. The first Claimant petitioned as a member of the company and the holder of a long leasehold. He had grievances about the management of the company. That petition was struck out by order of Mr Justice Richards on 10^th April 2004. There is a judgment with 48 paragraphs, which has Neutral Citation Number [2004] EWHC 426 (Ch). It is dated 10^th March 2004. Paragraph 48 is highly critical of the first Claimant.

On 16^th June 2004 the first Claimant applied in person to Neuberger LJ for permission to appeal against that decision. In his reasoned judgment of that date Neuberger LJ said:

“ 9. The second point is that there are reasons for thinking that this judgment, which I have as an approved (and plainly handed down) judgment, dated 10^th March, and recorded in my copy as received 5^th April 2004, Progress Civil Appeals Office, does not in fact represent David Richard J’s judgment. Mr Branch fairly accepts that this is an extraordinary submission, but I freely accept that extraordinary things can happen.

10.

If a litigant has cause to believe that what appears to be a copy of the judges’ judgment is in fact not the judge’s judgment, the obvious thing is to contact the judge’s clerk with a copy of the judgment and ask him whether or not the belief is correct. I have no doubt that the first person to take steps to ensure something is done about such a problem and that the matter is put right and the world notified about it would be the judge himself. I understand from Mr Branch that David Richards J’s clerk was contacted and nothing happened. I therefore proceed in the confident assumption that the judgment does indeed represent the judge’s judgment. ”

In these proceedings also the Claimants state that the judgment of 10^th March 2004 is a bogus and fraudulent document of seventeen pages, with no author confirmed, and flashed and published around the world on the Courtservice Website Internet by the DCA, to defame and ridicule Mr Branch in the face of a massive fraud by Mr Owens, and Owens and Porter and the other four Defendants. In these proceedings the Claimants also complain of the judgment of Neuberger LJ. They also say that the Defendant has been repeatedly asked to remove the offending judgment document from the website, but they have refused.

This court of course has no jurisdiction to entertain complaints made about judgments of a judge of the Court of Appeal.

It is further plain that there is no material pleaded in the present Particulars of Claim that take the matter any further forward than it was when the point was made to Neuberger LJ. There is nothing to suggest that the judgment of 10^th March 2004 is a bogus document. As a genuine document there is plainly a defence of absolute privilege available to the Defendant in respect of the publication of the judgment whether on the website or in any other way. There is nothing in this point which arguably amounts to a violation of any of the convention rights relied upon by the Claimants namely Articles 6,8 and 14.

The next matter relied upon in these proceedings is concerned with proceedings in the Bournemouth County Court commenced by the third and fourth Claimants for pre action disclosure against Halifax PLC over trust funds allegedly held by that bank provided by their grandmother. The Action number is BH 104964. The complaint is pleaded as follows:

“32 Simon and Joel’s position is that their Human Rights have been Profoundly and Repeatedly violated under Article 6 of the Convention and that they have been the subject of Repeated Degrading Treatment in Violation of Article 3 of the Convention and that the Court discriminated against them not wishing to Appear as Jews as at Hearing on September 11^th 2003 to engage both Articles 9 and 14 of the Convention.

33 Simon and Joel have been only too well aware of the adverse activity of the DCA in their case in that the DCA “lost” the Transcript Tapes for 11^th September 2003 at Kingston in order to favour Halifax PLC.

34 The Court Service, DCA, then introduced a “made up” transcript but when challenged to produce it into Court under Statement of Truth, they demurred in the same fashion that the bogus judgment document of 10^th March 2004 in Mr A Branch’s Petition case now has no known author and has No Privilege as a result and it is just a tissue of Sedition to shame this country.

35 The full documentation in Simon and Joel Branch’s case will be lodged next Tuesday 3^rd August 2004 as they are meeting with the Police this week over the matters in the case that continue to affect them by dint of the adverse activities of the DCA and Halifax PLC. ”

The complaint is totally fanciful. In any event, as is clear from Section 9 of the Human Rights Act, any complaint relating to a refusal to adjourn proceedings cannot be brought by the present proceedings, and the Defendant is protected by Section 2 (5) of the 1947 Act.

The next matter relied on in these proceedings arises out of an action to which the second Claimant and the firm of Solicitors Lester Aldridge were parties. In the Particulars of Claim complaint is made of a decision of the judge under CPR Part 36 “to favour Lester Aldridge and most Profoundly Violate Mrs Branch’s Human Rights under Article 6 of the Convention and Article 8 of the Convention…” There is a reference to proceedings before Carnwath LJ in the Court of Appeal and a hearing in relation to costs. It is pleaded that the Claimants “will be lodging the full details on her Case on 3 August 2004 after the improper hearing at Bournemouth set for 2 August 2004 has taken place to reflect the extension of the Violation of Mrs Branch’s human rights”.

The last extension to the Particulars of Claim is dated 3^rd September 2004. Attached is the Particulars of Claim in case HQ04X01490. These are proceedings brought by the First Claimant in this action against the Oasis (Poole) Management Limited and Mr Owens for defamation and harassment of the First Claimant. A complaint is made of an order of Master Eyre made in those proceedings. Plainly that is a judicial act, and any complaint about it can be pursued, if at all, only by appeal. Insofar as complaint is made of acts or omissions of members of the Court Service other than those exercising judicial functions, Ms Michalos relies on Wood v. Lord Advocate [1996] SCLR 278, 282 A-C, and Quinland v. Governor of HM Prison Belmarsh (2002) EWCA Civ 714. She also refers to Kent v. Griffiths [2001] QB 36 para 38, for the proposition that a summary remedy granted in an appropriate case is indistinguishable from a decision at trial on a preliminary point of law and so cannot be a contravention of Article 6.

In my judgment these submissions are well founded. There are in principle remedies available in respect of all the matters of which the Claimants complain. I do not mean to say that the Claimants are entitled to succeed on their complaints. Obviously that depends on the merits of the complaints in question. But they do have access to justice, by means of appeal procedures. If those appeals fail then there is nothing in the Convention that requires or permits a collateral attack on those decisions to be made in the form of proceedings for breach of s6 of the Human Rights Act.

It is clear that the statement of case in this action disclose no reasonable grounds for bringing any of these claims. Accordingly it must be struck out in its entirety.