Opening lines & memorable passages in judgments – Part IV

Since my last blog in this series, I have had a few more memorable opening lines of judgments drawn to my attention, but I have never known quite what to do with them.

Now  a contribution from a Canadian judicial friend has been the spur to bring me back into action.

I envisage this part of the series will steadily grow, and if anyone who has sent me anything in the last two months wants to try again, I will willingly add it (so long as it passes my own rather nebulous quality control tests).

I have also added a new section to the Menu on my blogsite called “Judgments”, so that readers can find them more easily.

Anyhow, here is No 1 in the new series:

West Vancouver School District No 45 v Callow (Ontario Superior Court of Justice,  23 April, 2014)

McKinnon J:

1    Roger Callow is a litigant possessed of seemingly inexhaustible stamina. His behaviour suggests that he views the Canadian court system as something akin to a perpetual, all-day, all you can eat buffet. Having been rebuked by the courts and tribunals of British Columbia, the Federal Court of Canada and the Supreme Court of Canada, Mr. Callow has now taken aim at Ontario.

 

I was originally sent No 2 six days ago.  It is from the same genre.

Sheikh v Page, Queen’s Bench Division, 13 July 2017

Mr Justice Turner

1.Anal Sheikh is no stranger to these courts. For about a decade, she has waged a lonely forensic campaign against an ever expanding cadre of judges, barristers, solicitors and others. In the years prior to and including 2009, the Courts repeatedly found her applications in the context of a highly contentious property dispute to have been totally without merit. In consequence, she was made the subject of a General Civil Restraint Order (“GCRO”). Moreover, in the light of her subsequent conduct the duration of this order has thereafter been extended at regular two year intervals. The most recent of these extensions was made by order of Patterson J and is due shortly to expire.

26.There are a number of hurdles standing in the way of Miss Sheikh’s broader ambitions. Not the least of these is that no formal application has been made in support of them and they have not been made in compliance with the terms of the GCRO which was extended by Patterson J. In any event, applications to commit persons to prison must necessarily be formulated with the utmost care, supported by sufficiently compelling evidence and must allow the alleged contemnors a proper opportunity to respond. In these respects, Miss Sheikh’s applications fail even to get off the ground. In any event, I can discern no substantive merit lurking behind the procedural clutter of these initiatives.

27. The same must be said of her attempts to persuade me to revisit the orders and judgments of the court in the Red River litigation. Her avenues of appeal against the decisions in respect of which she continues to fight so passionately have long since been completely exhausted. I am in no doubt that the stress of this litigation combined with its financially catastrophic outcome has had the profoundest impact upon Miss Sheikh. It is to her credit that, notwithstanding the depth of her feelings, she was able to articulate her case to me with all due courtesy and presentational restraint. Unhappily, however, the substance of her allegations in this case are characterised by a complete failure of objectivity. She continues to assert that Lord Phillips of Worth Matravers, Sir Terence Etherton MR, Henderson LJ and Briggs LJ conspired together to steal her title to the development site and then shared between them the profit of £64,000,000. She further accuses them of torturing and unlawfully killing her mother. There is something almost poignant in the absurdity of these allegations based, as they are, upon no discernible evidence. At one point, Miss Sheikh submitted to me that the fraud was “too clever to be seen”. She does not, however, entertain the rather more mundane possibility that the reason it cannot be seen is because it does not exist.

Finally, Miss Sheikh also applied in writing for an adjournment shortly before the judgment was to be handed down. Her submissions included the following:

“At the last hearing, I submitted to Turner J that the case before him is not only the most significant case which has ever come before an English court in its 1000 year history, it is a case which asks the most important question ever asked in the history of civilisation since the birth of time…

I had proposed to invite parties such as the editors of Tolley and academics, to name a few of the trillions of people whose rights and interests would be effected by his decision, to intervene in the case.

(For a start, all books on contract law will have to be withdrawn and rewritten and changes would have to immediately be implemented to school and university syllabuses. There should probably some sort of Government notice published in the UK and throughout the world!)”

Comment would be superfluous.

 

And here is No 3.

Cant v London Borough of Hackney, First Tier Tribunal (Residential Property), 20th February 2017

Tribunal Judge Andrew Dutton:

7. Under section C of his statement, [Mr Cant] set out what he believed to be the numerous errors of the Council which included, for example, that a fee in respect of lifts should not be charged to him. Further, fees in relation to the upkeep of the toddler’s play area should not be charged to him as it was not a service he ever used and was not wanted by him. Indeed, it caused him considerable nuisance he said. The sanity “and mental age” of the Council was questionable because of the “low maturity of response.” The document then went on to consider the seven principles of public life and recited a number of references to articles in the Hackney Gazette and other references to examples of anti-social behaviour. Under a heading DBLC of SI references were made to world debt burden and master bond vouchers which were, with respect to Mr Cant, difficult to relate to the proceedings before this Tribunal. The statement then went on to deal with the provisions of section 20C of the 1985 Act and at page 173 of the bundles the statement went on to list again a number of issues that Mr Cant wished to raise concerning the actions or inactions of the Council. There then followed a heading of Understanding digital engagement in later life, where again references were made to matters that appear to have no relevance to this Tribunal. ….

10. Prior to the hearing, on 23rd November 2016, Mr Cant sent an email to the Tribunal and it is perhaps appropriate to record some of the contents so that it puts the evidence of Mr Cant and the basis of his case in some context. The email appears to be a notice of “Immunity from Treason” directed to employees, directors etc of UK PLC, the London Borough of Hackney, with interested parties suggested to be the Chief Executive Officer of the Ministry of Justice, the Tribunal and all Judges involved. The email contends that this Tribunal had conspired with the Police to deny equality of arms by refusing to adjourn a hearing after the Police appeared to have taken possession of Mr Cant’s computer/computers. The suggestion made is that the Tribunal was an agent of the criminal cover up of the crimes committed by UK PLC in collusion with the London Borough of Hackney and Metropolitan Police. This purported to take the form of a statutory declaration signed by Mr Cant and two of his friends. We do not propose to go into any further detail in connection with this document, which is recited merely to indicate the difficulties that the Council, and indeed this Tribunal, had in dealing with Mr Cant’s claims. ….

36. On 26th January 2017 the matter reconvened with Mr Kilcoyne again representing the Council accompanied by Mr Paul and Miss Ziaie-Fard. Mr Cant attended, again with Mr Smeaton and friends, but also Mr Edward William Ellis. The hearing started 15 minutes late and Mr Ellis immediately imposed himself indicating that he was assisting Mr Cant. We were informed by Mr Kilcoyne that Mr Ellis was a disqualified solicitor and that a formal order of the court had been made that he should not assist any party in proceedings. Mr Ellis told us that he was an equity lawyer and that because evidence had been retained by the Police until after the first hearing this had closed the evidence stage of the case and he had advised Mr Cant to rest his case without adducing any further evidence. We were not prepared to accept Mr Ellis as acting on behalf of Mr Cant. Mr Cant, however, said that he wished to conclude his case and not to produce further evidence, again prompted by Mr Ellis. After discussions with the parties and at Mr Kilcoyne’s suggestion, we adjourned the case for some half an hour or so to give Mr Cant the chance to consider his position. However, he returned to the hearing room and told us that “the citizen relies on the jurisdiction case and the documents before us and had no further comments to make.” He confirmed that this decision had been made freely. ….

40. This is a difficult case. Some of the allegations made by Mr Cant are wholly without our jurisdiction. In addition, some of the threats made by Mr Cant or by those assisting him are, to say the least, illogical. Threats of treason and suggestions that the London Borough of Hackney owes trillions of pounds does nothing to assist us in trying to reach a determination under section 27A of he Landlord and Tenant Act 1985…

 

Judgment No 4 takes us to medieval Italy.  It is the first paragraph of the judgment of the Court of Appeal (Lords Justices Longmore, Floyd and Simon) in Dexia Crediop SPA v Comune Di Prato [2017] EWCA Civ 428,

Before recounting the swap transactions entered into by an Italian commune to manage its indebtedness, the Court said:

 “In the Palazzo Comunale in the Tuscan town of Prato, there hangs a magnificent portrait by Alessandro Allori of Francesco Datini, better known to English visitors since the publication of Iris Origo’s book as the Merchant of Prato. He is depicted in an overgarment of scarlet cloth, the commodity for which Prato was well-known (and indeed pre-eminent) in the Middle Ages. He was himself an elected Councillor of the Comune and is usually regarded as the founder of the city’s prosperity. His statue stands outside the Palazzo holding a sheaf of bills of exchange. On the first page of each of his ledgers were the words “In the name of God and of profit’” but he left his fortune to the city rather than the church. The Comune di Prato (‘Prato’) is still in existence as an Italian local authority but one feels that the facts of this appeal would cause the Merchant some dismay, because from 1996 onwards its finances had become under considerable pressure. As at 31st December 2001 its total borrowing stood at around €111m.  88% of that figure was at a fixed interest rate whilst the remaining 12% was at a variable rate.”

 

For Judgment No 5 I return to Lord Justice Ward, with whom Lords Justices Hughes and Rimer agreed, in Greenland Bank Ltd v American Express Bank Ltd [2009] EWCA Civ 14 at para 1

In praise of forensic schizophrenia

This is the kind of litigation that could feed the public’s worst perception of lawyers and the law. Jonathan Swift, author of Gulliver’s Travels, once described lawyers as:

‘… a society of men … bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white …’

and then he added maliciously:

‘… according as they are paid’

That calumny against the profession could perhaps be voiced in this case by a cynical observer of this litigation.  Here Westmont Power (Bangladesh) Ltd (‘Westmont’) brought an action against American Express Bank Limited (‘Amex’) in Bangladesh for a declaration, in effect, that a guarantee given by Amex had not expired.  Amex resisted vigorously and claimed the return of the guarantee from the beneficiary.  Amex lost. Now, in a complete volte-face, Amex have successfully contended before Evans-Lombe J. in a claim brought against it here by Greenland Bank Ltd (in liquidation) (‘Greenland’) that they could have been wrong in that defence and that there is a real prospect that the Bangladesh court did decide the matter correctly against it.  That is Amex’s defence here notwithstanding the fact that back in Dhaka Amex still stoutly maintain their appeal against that decision on grounds that it is riddled with error.  Riding two horses at the same time is always difficult enough: riding them when they are charging in opposite directions is an altogether remarkable feat, so let me begin by praising the skills of counsel for Amex, Mr David Wolfson, who with customary courtesy, cogency, and not a little charm, managed to stay in the saddle notwithstanding some hostile fire from at least this incredulous member of the court.  He escapes all Swift’s opprobrium.  How did he manage it?”

Judgment No 6 is a racy contribution from the seemingly staid portals of the Upper Tribunal’s Administrative Appeals Chamber.

NI v HMRC [2015] UKUT 0490 (AAC)

Upper Tribunal Judge Wikeley:

The wider context of this appeal

  1. Well, here we go again.
  2. This is another case in which HMRC has stopped a female claimant’s tax credits award on the basis that she was not, as she said, a lone parent, but rather was living with the father of her children.
  3. This is also another case where, regrettably, the First-tier Tribunal has failed to interrogate the case put by HMRC with sufficient rigour. 
  4. This is by no means the first such case to come to the attention of the Upper Tribunal; see e.g. SS v HMRC (TC) [2014] UKUT 0383 (AAC) (Judge Rowley), SB v HMRC (TC) [2014] UKUT 0543 (AAC) (Judge Wright), SW v HMRC (TC) [2015] UKUT 0394 (AAC) (Judge Wikeley) and now CS v HMRC (TC) [2015] UKUT 407 (AAC) (Judge Hemmingway). These are merely some examples from an extensive catalogue of such cases. 
  5. I doubt it will be any consolation to the Appellant in the present case to know that she has not been alone in her experience.

Summary of Upper Tribunal’s decision

6.     I allow the Appellant’s appeal. The First-tier Tribunal (FTT)’s decision involves an error on a point of law. That tribunal’s decision is set aside. Fortunately I can make the decision that the FTT should have made and do so.

The proceedings before the First-tier Tribunal

  1. The Appellant had been in receipt of tax credits for 10 years or so as a single parent. Having initially made an award of both WTC and CTC for the 2013/14 tax year, HMRC reassessed those tax credit awards and in effect made a nil award for that year (or at least bar one day for technical reasons) on that reassessment. HMRC said it had information that a man (Mr X) had financial links with her household which cast doubt over her entitlement to claim as a single person. HMRC stopped her tax credits award. The Appellant appealed. In her letter of appeal she explained her rather unusual circumstances:

“I do not agree with the decision that I was living with a partner. I live in my children’s father’s house (instead of maintenance). He does not live with me or financially support me. Once my children have finished their education, I will have to move out or pay him rent for the property… I know I can’t give you another address for [Mr X] but he doesn’t live with me, he works all round the UK sleeping in B&Bs and caravans …”

 

No 7 comes from the Commercial Court, hot off the press today (26 July 2017).  The first and last paragraphs of the 142-paragraph judgment will suffice.

Blue v Ashley [2017] EWHC 1928 (Comm)

Mr Justice Leggatt:

1.The question in this case is whether, as a result of a conversation in the Horse & Groom public house in Great Portland Street, London W1, on the evening of 24 January 2013, a contract was made between the claimant, Mr Jeffrey Blue, and the defendant, Mr Michael Ashley, under which Mr Ashley owes Mr Blue £14 million.

VIII. CONCLUSION

142. In the course of a jocular conversation with three investment bankers in a pub on the evening of 24 January 2013, Mr Ashley said that he would pay Mr Blue £15 million if Mr Blue could get the price of Sports Direct shares (then trading at around £4 per share) to £8. Mr Blue expressed his agreement to that proposal and everyone laughed. Thirteen months later the Sports Direct share price did reach £8. But no reasonable person present in the Horse & Groom on 24 January 2013 would have thought that the offer to pay Mr Blue £15 million was serious and was intended to create a contract, and no one who was actually present in the Horse & Groom that evening – including Mr Blue – did in fact think so at the time. They all thought it was a joke. The fact that Mr Blue has since convinced himself that the offer was a serious one, and that a legally binding agreement was made, shows only that the human capacity for wishful thinking knows few bounds.

For the eighth judgment in  this series I quote the Conradian preamble and the first eight paragraphs of a judgment which records an unsuccessful attempt by a historian to access the names of Irish informers in the years leading up to the Easter rising.  I add at the end, for good measure,  a citation from that well-known jurist, Mr Basil Fawlty.

 

Keane v IC, the Home Office and the Metropolitan Police Service [2016] UKUT 0461 (AAC)

DECISION BY THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) (Upper Tribunal Judge Wikeley) 

The DECISION of the Upper Tribunal is to dismiss the appeal.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 13 August 2015 does not involve an error on a point of law. The appeal is therefore dismissed. This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

The Assistant Commissioner, with his eyes lowered on the rag of blue cloth, waited for more information. As that did not come he proceeded to obtain it by a series of questions propounded with gentle patience. Thus he acquired an idea of the nature of Mr Verloc’s commerce, of his personal appearance, and heard at last his name. In a pause the Assistant Commissioner raised his eyes, and discovered some animation on the Chief Inspector’s face. They looked at each other in silence.

“Of course,” said the latter, “the department has no record of that man.”

“Did any of my predecessors have any knowledge of what you have told me now?” asked the Assistant Commissioner, putting his elbows on the table and raising his joined hands before his face, as if about to offer prayer, only that his eyes had not a pious expression.

“No, sir; certainly not. What would have been the object? That sort of man could never be produced publicly to any good purpose. It was sufficient for me to know who he was, and to make use of him in a way that could be used publicly.”

“And do you think that sort of private knowledge consistent with the official position you occupy?”

“Perfectly, sir. I think it’s quite proper. I will take the liberty to tell you, sir, that it makes me what I am – and I am looked upon as a man who knows his work. It’s a private affair of my own. A personal friend of mine in the French police gave me the hint that the fellow was an Embassy spy. Private friendship, private information, private use of it – that’s how I look upon it.”

Joseph Conrad, The Secret Agent (1907), ch.6.

The history of Ireland, national security and Government secrecy

  1. There is much still to be written about the history of Ireland since the late nineteenth century. Many events in this troubled era have taken place in the full glare of publicity. Other events have taken place in the shadows. One of the historian’s roles is to shine a light into those dark corners of history.

  2. The National Archives (TNA, formerly the Public Record Office) at Kew houses files from various government departments that have been retained as having some historical interest (although by no means everything of significance has found its way to Kew: see Ian Cobain, The History Thieves: Secrets, Lies and the Shaping of a Modern Nation (September 2016, Portobello Books)). Some of the Kew files contain information about the use by the police and security services of paid informants in Irish republican organisations at a time when British rule extended to the whole island of Ireland.

  3. How far should historians be able to access such files today, more than 100 years after the files were current? Should there effectively be open access? Or are there some details in those files which should still be withheld from researchers, a century on? If so, on what basis should that be? These are questions which have come before the First-tier Tribunal (Information Rights) in the General Regulatory Chamber on more than one occasion.

  4. In Metropolitan Police v Information Commissioner [2008] UKIT EA 2008 0078 (“the Butterworth case”) a historian (Mr Butterworth) sought access to Special Branch files from the period from 1888 to 1912 dealing with its investigations into the activities of European anarchists. In a sense, the researcher wanted to inspect the official paperwork underpinning the type of police work depicted in Joseph Conrad’s The Secret Agent. The First-tier Tribunal issued what was, in effect, a consent judgment, ordering the Metropolitan Police to disclose the files in question. However, the Tribunal also directed that the names of any individuals referred to should be redacted before the files were released.

  5. In Marriott v Information Commissioner [2011] UKFTT EA 2010 0183 another First-tier Tribunal concluded that Metropolitan Police records from the same era, including details of informants, and relating to the ‘Jack the Ripper’ murders, should not be disclosed. That Tribunal decided unanimously that the records fell within the scope of the qualified exemption in section 30(2) (information held for the purposes of an inquiry) of the Freedom of Information Act 2000 (FOIA). The Tribunal also held (but only by a majority) that the public interest in maintaining the exemption outweighed the public interest in disclosure. That decision was not appealed to the Upper Tribunal.

  6. In the present case a different First-tier Tribunal, again by a majority decision, decided that the details of paid informants referred to in Metropolitan Police records and involved in Irish secret societies in the period from 1890 to 1910 should not be disclosed. The files were accordingly broadly contemporaneous with those in both the Butterworth case and Marriott, albeit the context was different. Disclosure of the names of paid informants was resisted on the grounds of both national security (FOIA, section 24(1)) and health and safety (FOIA, section 38(1)).

  7. If nothing else, these three first instance decisions demonstrate how finely balanced such decisions may be and how reasonable people (and especially reasonable judicial office-holders) may reasonably differ. In that context it is important to remember that an appeal to the Upper Tribunal is not a full merits review. The First-tier Tribunal, of course, must conduct a full merits review of the Information Commissioner’s decision notice. The Upper Tribunal’s role is confined to ascertaining whether the First-tier Tribunal’s decision involves a material error of law.

The specific issue arising on this appeal before the First-tier Tribunal

  1. The practical issue raised by this appeal before the First-tier Tribunal was accordingly whether certain information in a National Archives file entitled Activities of named paid informants against Irish Secret Societies (TNA file ref HO 317/38) should be released under the Freedom of Information Act 2000. The file covers the period 1890-1910. The requested information in issue comprises the names of such paid informants……..

41. Mr Knight, for the MPS, predictably agreed with both Mr Paines and Mr Sharland. He submitted there was nothing surprising or erroneous in the Tribunal’s reasoning that the risk of harm to national security was a very significant matter which would require compelling countervailing evidence for the public interest balancing test to tip in favour of disclosure. This was, said Mr Knight, citing that wellknown jurist Basil Fawlty, no more than a statement of “the bleeding obvious”. The Tribunal, Mr Knight argued, had not fallen into the trap of saying “this is a national security case so the Government wins”. …..

The ninth judgment in this new series comes from the High Court of New Zealand.

Finnigan v Ellis [2017] NZHC 1397

Associate Judge Sargisson (23 June 2017):

[1] Fishing expeditions are a popular pastime for many people. The fisher does not know, of course, what he or she might reel in – trout, salmon, or nothing at all. Nonetheless, the line is thrown out in the hope, and the expectation, that something will bite. And then there is the alluring possibility that today, or maybe tomorrow, the hook will find that ‘perfect catch’.

[2] The liquidators in this case, Ms Finnigan and Mr Van Delden, are said to be ‘going on a fishing expedition’. In this legal context, the idiom has rather less cheerful connotations. This is especially so in the context of functionaries exercising tightly-constrained and essentially inquisitorial statutory powers, as in the present case. In this case, the liquidators want to fish in the lake of Mr Ellis’ personal accounts. The ‘perfect catch’ would be evidence that Mr Ellis has the assets to satisfy any judgment made against him.

 

[46] But the question is more complicated than simply: are liquidators allowed at all to fish in the pool of a potential defendant’s financial affairs? That question cannot be divorced from other more nuanced and controversial questions.

[47] One such question is this: Where are the boundary-lines separating where the liquidators can or cannot fish? I would have expected more discussion from the liquidators on the boundaries of any extension of the liquidators’ powers, and even the principles to guide the court’s discretionary exercise of its extended jurisdiction. The fear of opening the floodgates by rubberstamping the liquidators’ application is not naive.  In a different but related context, the Court of Appeal has given one possible counterfactual: the financial affairs of a potential defendant’s rich uncle being investigated because the potential defendant had an expectation or hope of receiving a gift or bequest from him.

[48] Another such question is what justification the liquidators are required to put forward before the court will allow them to ‘throw out their line’.  In this vein, it is important to stress that in exercising their powers under ss 261 or 266, liquidators are not like children playing ‘go fish’ picking up cards from the pool with having any clue what they might be.  As Nicholson J suggested, it is in the nature of an essentially inquisitorial power like that provided for in s 266(2) that the ‘inquisitor’ is, in some sense, always fishing.   The interesting question becomes at what point, or on what degree of justification, the liquidators may go beyond the limits of their powers in s 261, and to ask the Court’s assistance to further intrude on the rights of a potential defendant.  Must liquidators point to ‘something fishy’ about the way a person has structured their financial affairs that gives rise a suspicion they are attempting to shield their assets?  How substantial is the basis for such suspicion required to be?

[49] If the court is to push out the limits of such a provision in a potentially controversial way, it is entitled to more discussion on these crucial questions…

For the tenth, I am grateful to Gordon Exall, the mandolin-playing onlie begetter of @civillitigationbrief.com. 

It is another snippet from the judicial writings of HH Judge Purle QC (sitting as  a High Court Judge on 4 April 2016).  It is short and to the point, and contains echoes of one of  Lord Denning’s opening sentences (also on this blogsite).

Mitchell v Morris (2016) EWHC 3800 (Ch)

  1. There has been a longstanding love affair between commercial men, including those inhabiting the landlord and tenant world, and arbitration, now reflected in the Arbitration Act 1996 (“the Act”). Nevertheless, the virtues of arbitration are not universally admired.

 

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One thought on “Opening lines & memorable passages in judgments – Part IV

  1. Pingback: Sir Henry Brooke has wise words after Jackson J letter to a child | Charon QC

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