index

IN THE HIGH COURT AT LEEDS Ref. No, Sheffield C960082

QUEEN'S BENCH DIVISION - IN CHAMBERS

The Combined Court Centre, Oxford Row,
Leeds

22nd May 1996

BEFORE

THE HONOURABLE MRS. JUSTICE SMITH

_ _ _

JAMES FREDERICK HULBERT

-V-

HIS HONOUR JUDGE ALAN SIMPSON

and

SHEILA M. WEST

_ _ _

TRANSCRIPT OF PROCEEDINGS

_ _ _

APPEARANCES:

For the Appellant: IN PERSON

For the First and Second Respondents: MR. J. RICHARDSON

_ _ _

Transcribed from the Palantype Notes of

                                                      J. L. Harpham Ltd.
                    Official Court Reporters and Tape Transcribers 55 Queen Street
                                                       Sheffield Sl 2DX

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JAMES FREDERICK HULBERT -v- HIS HONOUR JUDGE ALAN SIMPSON
and SHEILA M. WEST

22nd May 1996

MR. HULBERT: My Lady, I am Mr. Hulbert, the appellant. Mr. Richardson is counsel for the respondents.

My appeal is against the order made on 13th February 1996 by District Judge Weston whereby he ordered that my Statement of Claim against Judge Simpson and Mrs. West be struck out on the ground that the claim cannot be substantiated and cannot and does not show a cause of action. I asked for an order overturning District Judge Weston's order by holding that the Statement of Claim can and does show a cause of action, and for an order that the District Judge's order that the costs of the respondents' application to strike out the Statement of Claim and the costs of the claim to be against myself be overturned and be against the respondents.

Included in my bundle of relevant documents are original documents, of which the District Judge had prior knowledge long before the respondents' summons to strike out my Statement of Claim was issued. These documents include letters and two judgment orders, as stated in my Statement of Claim. They show clearly that the second respondent had failed to provide certification of her transcripts. They include my summons issued on 1st November 1995 for an order to the second respondent to serve a defence with the grounds for the application, also affidavits. All of these documents have been filed with the court.

My application was part heard and adjourned by District Judge Weston long before the respondents' summons to strike out the claim, before it was issued. I submit that these documents prove that the second respondent has not served a defence and that Judge Weston ought to have held my application for her to serve one, which he part heard, should have been heard in advance of the respondents' application to strike out the Statement of Claim. The respondents' summons to strike out my claim was issued over eleven weeks after my summons for the second respondent to serve a defence.

I further submit that because Judge Weston had knowledge of the evidence contained in the documents, he ought not to have heard the respondents' application to strike out the Statement of Claim in any event and, for that reason, the documents that he has knowledge of are relevant to this appeal.

MRS. JUSTICE SMITH: You say he should not have heard the application to strike out because he was aware of evidence that had been put in on your own summons, on your application?

MR. HULBERT: Yes, my Lady. That is correct.

MRS. JUSTICE SMITH: But it was all your evidence, was it?

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MR. HULBERT: It was.

MRS. JUSTICE SMITH: So you did not think that the Judge ought to have been aware of evidence that you yourself were relying on?

MR. HULBERT: I do not think he should have been aware of it and, apart from that, he should have heard my application. He did part hear it, but he should have continued with it before the respondents' application.

MRS. JUSTICE SMITH: Yes, I understand that point. Mr. Hulbert, let me just explain to you that this is a rehearing of the application. I am going to make my mind up afresh on the issues, regardless of what District Judge Weston thought about them or decided.

MR. HULBERT: Yes, my Lady.

JUSTICE SMITH: So you need not concern yourself too much with what happened before him. Do you understand?

MR. HULBERT: I do, yes. As I say, the documents are included in the bundle.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: That is my opening speech, my Lady.

MRS. JUSTICE SMITH: Yes, very well.

MR. RICHARDSON: My Lady, there are two summonses, in effect, before this court which were before the learned District Judge. The plaintiff's summons was first in time on 3rd November 1995. The defendants' summons was second in time on 11th January 1995. They both came on simultaneously, as is normal, before the District Judge. He thus had to make a decision, as indeed your Ladyship has to make a decision, as to which one is the correct one to adjudge first. If the defendants' summons to strike out completely is successful, the plaintiff's summons, however individually meritorious it might be, about which I make no observation at the moment, falls by the wayside. Consequently, it was perfectly proper for the judge, as indeed it is perfectly proper for your Ladyship, to determine the striking out first, because plainly if the action is struck out no other applications or summonses could possibly arise. If on the other hand you turn down the defendants' summons to strike out, then the plaintiff's summons falls to be considered. Indeed, it never was considered by the District Judge. It would have, in my submission, to go back to him to be heard on its merits, or you could determine it yourself.

MRS. JUSTICE SMITH: I could determine it myself could I not, because it is not necessary that he should exercise a

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discretion? I can exercise my own discretion.

MR. RICHARDSON: Indeed, given that it is de novo.

MRS. JUSTICE SMITH: It is a rehearing, yes.

MR. RICHARDSON: Exactly. My Lady, the essence of this case, cutting away a great deal of the surrounding material, is this, putting it in its context. First, there was a trial before His Honour Judge Alan Simpson at Hull Crown Court. He is the first defendant. The second defendant in the action was the transcriber, the shorthand writer, at the relevant trial. At the conclusion of that trial, the defendant was acquitted of the charges.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: As I understand it, although it is by no means entirely clear from the papers, he then sought to bring an action some time beyond December 1991 against the Humberside Police Force in respect of, no doubt, malicious prosecution or some such matter, about which I know very little. As I understand it, in February 1995 and April 1995, District Judge Grills in respect of that litigation made orders that the shorthand writer, Mrs. West, produce authenticated transcripts of what took place in the trial before Judge Simpson. Mrs. West, on the 25th April 1995, produced that authentication. She produced the certificate in the following terms: "I certify that I took shorthand notes of the proceedings in the trial of R -v- James Frederick Hulbert and that the pages numbered 1 to 25 are a correct and complete transcript of my said shorthand notes to the best of my skill and ability.

And it is signed by Sheila West, although it is not dated. I think Mr. Hulbert in at least one of the documents asserts that that arrived on 25th April 1995, which would coincide with the District Judge's orders.

Other shorthand writers have produced similar endorsements.

MRS. JUSTICE SMITH: Other shorthand writers involved in the same trial?

MR. RICHARDSON: Yes, including a Mr. Hanman and a Frances Bowerman. It is Mrs. West about whom the complaint is made.

It is asserted that Mrs. West, a shorthand writer, and Judge Simpson entered into a conspiracy to pervert the course of public justice in, as I understand it, that the judge has directed her to either include material which was not said or remove material which was said and he, for some reason or another, wants removed. That is what the plaintiff is saying, as I understand it.

On 7th August 1995, he instituted proceedings against Judge

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Simpson and Mrs. West. On 12th September 1995, there was a joint defence of both defendants, which refutes completely the allegation which was made and, more importantly, in paragraph 8 of the defence it is asserted:

"The defendants say further that the Statement of Claim herein is scandalous, frivolous and vexatious and discloses no or no reasonable cause of action and, further, this action is otherwise an abuse of the process of this Honourable court. In particular, the plaintiff's claim is founded on the allegation of loss which cannot at present be proved. In addition to these proceedings, the plaintiff is suing the Chief Constable of Humberside Police in an action presently proceeding in the Sheffield County Court. Until the conclusion of that action, the plaintiff will not be able to prove that he has suffered any loss as a consequence of the alleged actions of His Honour Judge Simpson and Mrs. West, which are in any event denied."

MRS. JUSTICE SMITH: The basis pleaded in the defence which seeks to attack the heart of the case is on the basis that damage cannot be proved.

MR. RICHARDSON: Damage cannot be proved.

MRS. JUSTICE SMITH: There is plainly a cause of action alleged.

MR. RICHARDSON: Yes, plainly.

MRS. JUSTICE SMITH: Judicial immunity does not apply.

MR. RICHARDSON: That is something about which I would wish to address your Ladyship in a short while, in respect of judicial immunity in respect of both the judge and the shorthand writer, so if I may come back to that point for one moment.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: Forgive me for interrupting.

MRS. JUSTICE SMITH: So the basis upon which the defence attacks the heart of the claim is damage.

MR. RICHARDSON: Indeed it is, amongst other things of being a complete denial of any conspiracy at all.

MRS. JUSTICE SMITH: Of course, but traversing the facts alleged cannot entitle you to have the action struck out.

MR. RICHARDSON: No. Can I therefore go to the two branches of what I wanted to submit?

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: Can I say this, so that Mr. Hulbert

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entirely understands it. It is completely denied that the transcripts have been fabricated by addition or omission in any way suggested or alleged.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: The fact that, in our submission, it is an outrageous suggestion to suggest that a judge and a court shorthand writer have engaged in some sort of conspiracy is neither here nor there for the present purposes.

MRS. JUSTICE SMITH: That is right.

MR. RICHARDSON: The fact that it is outrageous is not relevant for present purposes.

In our submission, what Judge Simpson did, if it was proved to be correct, was still whilst he was acting as a judge. Now, he was not acting as Alan Simpson, who happened to be a Circuit Judge. He was acting in his capacity as a judge, maybe improperly, but he was acting in his capacity as a judge over a trial which he presided over.

MRS. JUSTICE SMITH: Certainly. I can see the force of that, but if he did that which it is alleged he did, it would be corruption.

MR. RICHARDSON: Corruption; and the answer to corruption is a criminal prosecution.

MRS. \ulnone JUSTICE SMITH: Certainly he ought to be prosecuted if he did that which it is alleged that he did, but can he not be sued as well?

MR. RICHARDSON: No. In my submission, no, he cannot. There is an absolute immunity in respect of anything he does, however erroneous, in his capacity as a judge, short of - I can envisage a situation, for example, where a judge has bribed a jury or some completely outrageous behaviour which could not even be remotely connected with his judicial functions. But in this scenario it is alleged that he has forced - compelled - the shorthand writer to alter the notes of evidence before him. That is what is asserted. That was in the context of a trial. He may have had any number of reasons for doing that, assuming he did it. They may be utterly mistaken, utterly wrong, as in Sirros and Moore, but he was acting as a judge and therefore he cannot be impugned in the civil courts.

MRS. JUSTICE SMITH: Do you have Sirros and Moore with you?

MR. RICHARDSON: Yes, I do.

MRS. JUSTICE SMITH: Because I, in lodgings last night, did not have the report available to me.

MR. RICHARDSON: The relevant passages - Mr. Hulbert has the

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copy.

MRS. JUSTICE SMITH: Good.

MR. RICHARDSON: The relevant passages of Sirros and Moore that I would invite your Ladyship's attention to are Lord Denning, page 132D through to page 135, Buckley L.J. on page 140 and Ormrod L.J. on page 149G. Ormrod L.J. agrees with Lord Denning's analysis and the clearest, most laconic description is to be found in the judgment of the then Master of the Rolls.

MRS. JUSTICE SMITH: Yes, Lord Denning. I will just read this, if I may.

Can you guide me as to which passage I should read on 1407?

MR. RICHARDSON: I have not got the relevant letter by the side of my note.

MRS. JUSTICE SMITH: Never mind. I think it is right at the very top. He says here, having spoken about the immunity from personal civil liability:

"This does not mean that if a High Court Judge, or indeed a judge of the Court of Appeal, purports to do something demonstrably outside his jurisdiction, he will be entitled to immunity. He must have acted reasonably and in good faith in the belief that the act was within his powers.

Then examples are given.

Ormrod L.J. at page 149 just below G says:

"In my judgment the second formulation suggested, only to be rejected, by Parke B. in Calder and Halket ... should now be adopted, namely, a judge should be protected ... where he gives judgment, or makes an order, in the bona fide exercise of his office, and under the belief of his having jurisdiction, though he may not have any.

That seems to me to be what I understood the law to be, that it would take a corrupt act outside protection. I know that Lord Denning uses an expression which I am a little unhappy about, with the greatest of respect. He says:

"Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages."

It seems to me that is ambiguous, that expression "that apart." Does he mean corruption apart, he is not liable for an action for damages, or does he mean prosecution apart, he is not liable?

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MR. RICHARDSON: My Lady, the way I analyze it is as follows. Any judge who is carrying out his duties as a judge, however erroneously, however misguided, is protected.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: Even though what he did was by really any objective standard quite wrong.

MRS. JUSTICE SMITH: Yes, and may have been actuated by malice.

MR. RICHARDSON: And may have been actuated by malice or uncharitableness or anything else of that kind. It is a very broad protection, for the very good reasons which I think Lord Denning gave in the course of his judgment.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: Where a judge is corrupt - and it has to be an assertion of corruption, nothing less will do - the protection does not arise. He can be sued, he can be prosecuted, any number of consequences. Plainly, if it were a High Court Judge, an address in both Houses of Parliament and plainly in the case of a Circuit Judge removed from office under the statutory provisions.

MRS. JUSTICE SMITH: Yes. But so far as a remedy to anyone damaged, he would be entitled to sue.

MR. RICHARDSON: He would be entitled to sue and, provided he could prove there was some damaqe, he could succeed in his action.. In this particular case, what is being asserted is that the judge altered the transcript for whatever reason. It is not, be it noted, asserted when that happened, in what circumstances or anything of that kind. It is simply being asserted, "This does not accord with my, the plaintiff's, recollection. Thus the transcript, however authorised, must be wrong. It must be a conspiracy." In our submission, that is not a reasonable cause of action. It has no chance of success, but in any event ---

MRS. JUSTICE SMITH: It is the evidential problem.

MR. RICHARDSON: I understand that. I am coming back on to the legal point.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: However, a judge acting in those circumstances, however misguided, if it could be proved, is still acting as a judge and entitled to the protection, because in order to impugn the judge, the proceedings are going to have to be impugned over which he presided. In other words, it is not something that happened extraneously. The very proceedings are being attacked. In other words, the transcript of what took place in court is being impugned in some way and, therefore, it

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must relate to the exercise of his judicial function.

Say in the context of a civil case - and this happens, I believe, quite frequently in terms of civil judgments and so forth - a judge delivers an extemporary judgment in court, which may have a number of infelicitous sentences.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: Submissions of counsel may be infelicitous. It is one of those things. It is all being taken down on a transcript, but it is particularly important for a judge, and when it comes to a judge in a civil case for it to be corrected. Usually the awkward sentences are deleted or rephrased in some way.

MRS. JUSTICE SMITH: I do it quite frequently.

MR. RICHARDSON: Exactly, Now that cannot happen in a criminal case.

MRS. JUSTICE SMITH: No, it is quite different.

MR. RICHARDSON: It is quite different, because it has to be word for word what is said. But say somebody came along in a civil action, some plaintiff came along and started to say, "That wasn't said in court. You, the judge, have entered into a conspiracy with the shorthand writers to alter the very meaning of what you said in court in that civil action." The whole proceedings, however properly the judge had behaved - and entirely properly, if I may say so - in correcting infelicitous phrases, is then open to question before another court. It is impugning what the judge did in court and providing there is no corruption involved here at all, that is, in our submission, quite wrong and thus this judge, albeit in -the context of a criminal trial, was behaving within his function as a judge, wrongly and so forth, but not corruptly.

MRS. JUSTICE SMITH: If a Crown Court Judge sought to make any alteration to a transcript of a criminal trial, he would know that he was doing wrong; he would know that he had no right to do it and that it was potentially corrupt, and if he had a corrupt motive rather than pure stupidity, then that would be an act of corruption rather than a misguided judicial act.

MR. RICHARDSON: My Lady, that may not necessarily be so.

MRS. JUSTICE SMITH: But it is certainly potentially so.

MR. RICHARDSON: It is potentially, but you have to say in a Statement of Claim rather more than is asserted at the present. For example, I can think of a situation where, for example, a judge tells a shorthand writer, "Don't take this down," believing that the exchange, for example between counsel and himself, is really not the matter which is the subject or should be the subject of a transcript of what took place - wrong, quite wrong -

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but he is not actuated by malice or corruption or anything of that kind at all. He was wrong.

MRS. JUSTICE SMITH: But if the allegation is that he was actuated by malice for corrupt reasons, not simply malice within the proceedings, it does seem to me then that he could not rely on immunity, at least as a matter of certainty. He may be able to plead immunity and it may be that the trial judge, having heard the evidence, would say, "I have come to the conclusion that although he did something very stupid, he is in fact covered by immunity, because that which he did was not corrupt." But if it is alleged that he was corrupt, then it seems to me that he cannot at this stage rely upon judicial immunity and certainly if he cannot, the shorthand writer cannot. I can see that there might be an argument that if the shorthand writer was acting solely under his direction, then perhaps his immunity might in some way protect her.

MR. RICHARDSON: That was my second point, because it is all to do with appeals in criminal cases, but the obligation on a judge to ensure that the transcript is taking place - somebody is there, either mechanically or in person - the duty is on him pursuant to the Criminal Appeal Act, and as it has subsequently become amended, and therefore she is acting almost as an agent of the judge. The two stand together in the context of a criminal trial, in our submission, but if he is protected, she is automatically protected, we submit. The basic point is whether the judge is protected in the first place at all, and our simple submission is yes, he is, and in order to impugn him you have got to assert corruption; and if you are asserting corruption, because it is such a grave and weighty matter like fraud, you have got to give chapter and verse about it. It is not good enough simply to say in the pleadings, however wordy, however dressed up ---

MRS. JUSTICE SMITH: Let us look at that, because I think, Mr. Richardson, I am against you on the principle of judicial immunity, provided that corruption is alleged, and it seems to me that it is alleged here. Whether it is alleged sufficiently and with sufficient particularity is another matter, but it seems to me that it is alleged and I am against you.

MR. RICHARDSON: I will say no more about the matter. We will revert back to the point which your Ladyship raised at the very beginning; and that is to say here that there is no damage.

MRS. JUSTICE SMITH: Do you want to say anything about particularity?

MR. RICHARDSON: The particulars here - it is an extraordinarily wordy pleading.

MRS. JUSTICE SMITH: Yes, but then that is often the case where litigants appear in person.

MR. RICHARDSON: It is often the case, but trying to

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disentangle as much as one can from it, it comes down to what I said right at the very outset. "My recollection of what happened in the trial is X. The transcript is Y. As night follows day" - and it is an enormous leap - "that must be corrupt. That must mean there was a conspiracy."

MRS. JUSTICE SMITH: What he is saying is, "Because the words do not reflect my recollection and I am sure my recollection is right, therefore the words have not been taken down properly and because the rest of the words are all right, I must draw the inference that the judge has directed the shorthand writer."

MR. RICHARDSON: As opposed to, even if he be right, a mistake, an error, or some other utterly innocent reason. In our submission, that is quite insufficient as an assertion, however it is dressed up, and when one cuts away all the details and all the peripheral matters, that is what it comes to. It is simple assertion. That is, in our submission, given that you are impugning a court proceeding and a judge, and corruption has to be asserted.

MRS. JUSTICE SMITH: Yes. Pause for a moment. The duty of as pleader is to plead the facts alleged and not the evidence which supports it.

MR. RICHARDSON: Quite.

MRS. JUSTICE SMITH: Now, as a matter of strict pleading, I can see the way in which the particulars have been set out is not entirely satisfactory and not as a professional man would have done it, but bearing in mind the plaintiff is in person, it is true to say that you know and I know on reading the Statement of Claim and the Further and Better Particulars which passages of the transcript he says are not accurate, which bits he says were not said and where he says words have been substituted. Now, as a matter of pleading, is that not sufficient?

MR. RICHARDSON: My Lady, that is sufficient in terms of the particulars of the alleged alterations.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: What he has not done, as far as I can fathom, in any of this is particularize the corruption or the conspiracy. He has just said, "Because those passages do not accord with my recollection of what took place in the trial, automatically there is corruption.

MRS. JUSTICE SMITH: Yes, it is a leap, an inference ---

MR. RICHARDSON: An inference that he is asking ---

MRS. JUSTICE SMITH: --- which he asks us to draw.

MR. RICHARDSON: He cannot do that, because, in my

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submission, in a case where you are asserting a very serious matter indeed - it is akin to fraud. In fact, in many respects, it is worse than fraud.

MRS. JUSTICE SMITH: It is worse than fraud.

MR. RICHARDSON: It is an extraordinarily serious allegation. You have got to particularize. You may not be able to say, "At 3 p.m. on 13th August 1991, the judge had into his private room the shorthand writer and they cobbled something together."

MRS. JUSTICE \b0 SMITH: That is often the case in fraud. Fraud tends to be committed - and corruption indeed - in privacy, cloaked in secrecy.

MR. RICHARDSON: Quite. You may be able to interrogate, assuming you get off the ground, as to where you were at particular times and that sort of thing. That is another argument altogether. To get more information, you may be able to interrogate, and I put a big "may" under it. But when you are making the initial assertion, you must particularize. You have got to say in what respect the judge was corrupt.

MRS. JUSTICE SMITH: He has done, you see. He has said, "The only inference I can draw" - and he admits that it is an inference - "The only inference I can draw is that the judge has told the shorthand writer what to write down." Now, the evidence is not there, but he has particularized what he is saying, what form it took, dictation of notes.

MR. RICHARDSON: My Lady, in our submission, you have got to do rather more than that. You have got to set out as best you are able - you cannot just make a wild assertion of such seriousness.

MR. SMITH: If he says, "I have set it out as best I am able," what we have to do in this case, Mr. Richardson, as it seems to me, is to look at it on the assumption that these allegations are true.

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: If it were true that Judge Simpson had at some time, possibly when he had learned that the plaintiff was going to sue Humberside Police and he wanted to put a spoke in the wheel - that is what is alleged - and he did in fact call in the shorthand writer and make some alterations, this plaintiff could not possibly be expected to know how it had happened.

MR. RICHARDSON: Oh, no.

MRS. JUSTICE SMITH: How could he provide the particulars? It seems to me that he is not going to have any evidence one way or the other until he sees the shorthand notes. Then there will be, I would have thought, an overwhelming inference if the

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shorthand notes as looked at correspond with the transcript.

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: One would hope that some standard form of shorthand such as Pitmans had been used.

MR. RICHARDSON: Yes.

MRS. JUSTICE sMITH: And that should be a relatively simple matter to demonstrate. If there is correspondence and no sign of alteration within the body of the shorthand document, then an overwhelming inference against the plaintiff would be drawn.

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: But until then, what more can the plaintiff do if the first that he knows of it is when he receives the transcript and says to himself, "That is not right. I know it is not right." Let us suppose he had half a dozen other independent witnesses who were sitting in court. He has tried to get the jurors, of course. That is another matter. But let us suppose that there had been half a dozen witnesses who had been listening and they agreed with him.

MR. RICHARDSON: Or his own shorthand note covertly taken, or a tape recording.

MRS. JUSTICE SMITH: Or his own or, contrary to the rules of court, a tape recorder. What then? What would you be saying then about this pleading and the adequacy of it?

MR. RICHARDSON: My Lady, he would then particularize very considerably the allegation. allegation is corruption.

MRS. JUSTICE SMITH: He would not know any more how it had been done. He would only be able to give better particulars of the actual words.

MR. RICHARDSON: But he has made the leap. There is plainly a - assuming that could be demonstrated - a mistake; something is wrong somewhere. It could be the shorthand writer has taken it down wrongly, -any number of reasons. But to make the assertion that it is corrupt, you need rather more than just the basic assertion of the facts. My Lady, otherwise one can see the situation arising when any aggrieved person is going to be able to come along and say, "You, the judge, must have altered the transcript. It does not accord with my recollection of the evidence. It does not accord with my counsel's note of the evidence. It does not accord with all manner of things." Therefore, to make the leap into corruption ---

MRS. JUSTICE SMITH: Corruption would be a matter of inference, would it not, from the nature of the alterations? If all the alterations pointed to one aim, then one might infer

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corruption as opposed to a mistake.

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: Oscar Wilde would have said you do not make the same mistake twice, or six times.

MR. RICHARDSON: Quite. What you do in that situation, if you are going to assert corruption and you have got an alteration, is you obtain by the appropriate means of discovery witness attendance and so forth, the appropriate subpoenas. You get the documents in advance. They can be provided, because there is a statutory provision. Providing you pay the fee, you get the documents. It is as simple as that under the Criminal Appeal Rules and so forth, the normal contractual arrangements with the shorthand writers. You can then assert rather more forcefully the shorthand note has visibly been altered.

MRS. JUSTICE SMITH: Are you saying that one can obtain a copy of the shorthand note, as opposed to the transcript?

MR. RICHARDSON: One can obtain a copy of the transcript and you could issue a subpoena or some form of witness summons to obtain the actual documents. Indeed, in this particular case, in the civil action proceeding in the York County Court the District Judge made two orders directing that the ---

MRS. JUSTICE SMITH: One was the Crown Prosecution Service solicitor's note was to be produced

MR. RICHARDSON: Yes, but what could have been sought was the actual shorthand note itself, and the shorthand writer would have been obliged within the action to have disclosed that document.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: If then there was a visible alteration to it, or some other evidence emerged therefrom, you could particularize it.

MRS. JUSTICE SMITH: Within this action, is there any way in which the plaintiff can obtain discovery before the normal proceeding, normal time?

MR. RICHARDSON: No.

MRS. JUSTICE SMITH: There is not. It is not a personal injury action.

MR. RICHARDSON: But in this context, because there is the other proceeding and he has not hesitated to go to the District Judge seeking orders compelling the shorthand writer to produce this and that, he could have forced her to produce the notes and then he would have been, had it been there, in a very good position to say, "That must be corrupt. I do not know where, but

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that must be corrupt, or at least it is an inference that I am seeking the court to make." He cannot just make wild assertions in corruption allegation cases and, in our submission, this is a wild assertion. There was a means in the context of this case, a finding out, along the lines that your Ladyship has suggested, whether there was even the makings of an allegation of corruption. As it is, there is not even the makings of an allegation of corruption. If a Member of the Bar had done this, for example, I dare say we would have been hauled before the Bar Council, or a solicitor would have been hauled before the Law Society for making allegations which could not be substantiated. Those, of course, do not obtain in relation to a litigant in person, but even so, when you are seeking to assert corruption, you have got to give full particulars as best you are able. In this case, it is not as best as the plaintiff is able, because he has not produced the actual shorthand note; he has not sought to say the shorthand note has been altered in some way. He has simply sought to say, "The transcript does not accord with my recollection." That is not good enough in the context of an allegation as serious and as grave as, in our submission, an allegation of corruption against one of Her Majesty's Judges is.

MRS. JUSTICE SMITH: But his assertion, the implied assertion, that the transcript does not accord with his recollection is simply a matter of evidence, is it not?

MR. RICHARDSON: Yes, but he has got to particularize the corruption. Just making the allegation, which is basically what he has sought to do, in our submission, dressed up with a lot of words, is, in our submission, insufficient in the context of this case. That is the first point.

MRS. JUSTICE SMITH: Particulars of false evidence - I am looking at the Statement of Claim, page 2, "Fabrication of parts of the aforementioned Sergeant Starn's evidence, omission of part of Special Constable Watson's evidence." Without the transcript, of course, the remarks attributed to Judge Simpson that he did not make as particularized are meaningless, because I cannot see what they refer to.

MR. RICHARDSON: My Lady, yes. As well on paragraph 7, which is to be found on page 4 of this document, "Judge A. Simpson has not been prepared to inform the plaintiff that he is not or has not been involved ..."

MRS. JUSTICE SMITH: Yes. The plaintiff throughout seeks to draw inferences from the fact that somebody declines to answer his correspondence.

MR. RICHARDSON: Or inadequately answers it.

MRS. JUSTICE SMITH: Or inadequately answers it, in his view. You need not concern yourself about that.

It seems hard to strike out a Statement of Claim drafted by a litigant in person on the basis that he has not transcribed

page 15

from the transcript into the Statement of Claim the specific complaints that he makes. Presumably he has it. I understand that he does have the transcript. He clearly does have. I understand he has left them at home. Is that right?

MR. HULBERT: That is correct, my Lady.

MRS. JUSTICE SMITH: Very unfortunate.

MR. HULBERT: The original transcript.

MRS. JUSTICE SMITH: Never mind the original. Have you even got a copy with you?

MR. HULBERT: I have copies and the original.

MRS. JUSTICE SMITH: Yes, but have you got them with you?

MR. HULBERT: Not with me.

MRS. JUSTICE SMITH: No. They are not much use to us today then, are they?

MR. RICHARDSON: You see, my Lady, what is going to happen in the context of this case is this, assuming it were allowed to proceed. The plaintiff would call his evidence as to what happened at the trial. He would say, "My recollection is A, B and C. The transcript reveals D, E and F." The defendant then, either both or one of them, is going to have to come and give evidence as the defence to that action, saying, "What happened was D, E and F."

MRS. JUSTICE SMITH: Yes, but it does not have to go that far, does it, Mr. Richardson? You see, where a defendant makes an application to strike out because a Statement of Claim is frivolous, vexatious, scandalous, not simply on the grounds of not disclosing a reasonable cause of action, the defendant can put in evidence.

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: It would seem to me that if the second defendant were to put in an affidavit producinq her notes and demonstrating that they have not been altered and swearing that they were in accordance with the transcript, also put in, then there would be a very solid basis upon which a judge could say, "This whole action is frivolous and vexatious."

MR. RICHARDSON: Doomed to failure.

MRS. JUSTICE SMITH: And doomed to failure. But at the moment, all I have - I have the Statement of Claim; I also have some affidavits which the plaintiff says I am not entitled to look at, but of course I have read. But there it is. I can see the inadequacies of the pleading. Of course, we have not come yet to the damage point, but I can see the inadequacies of the

page 16

pleading. But given that the plaintiff is in person, it seems to me that it would be a harsh ruling to strike the action out simply on the basis of the inadequacies of the pleading, which are inadequacies of professional approach rather than fundamental inadequacies.

MR. RICHARDSON: My Lady, if that is your Ladyship's view, what I would therefore be seeking is for this application to be adjourned so that the ---

MRS. JUSTICE SMITH: I do wonder whether that would be the more appropriate course, because the plaintiff himself has come without the transcript.

Yes, indeed. My Lady, it maybe then that he can have it demonstrated to him - I know not; he may not be prepared to want to have it demonstrated to him that there is no corruption, there has been no skulduggery or anything of that kind. But In any event even if he was not prepared to take that, it could be demonstrated to the court by way of evidence that that is the position and, indeed, perhaps as an exceptional course, I might invite the shorthand writer to actually be here to produce the originals in addition to an affidavit, not that she would necessarily give evidence, but at least she could be here and perhaps demonstrate to the plaintiff how it is that the transcript comes to be as it is and so forth.

MRS. JUSTICE SMITH: It may be that that would be of assistance.

MR. RICHARDSON: But certainly in any event in relation to the application, I would seek an adjournment so that that evidence could be obtained.

MRS. JUSTICE SMITH: Yes. So far as you final point would be concerned, which would relate to damage, plainly the matters of special damage which are alleged are not recoverable, because they all relate to the costs of the action; they are not damage which could have resulted from the alleged tort. But - and again not very well pleaded - the allegation that the plaintiff has suffered stress and anxiety as a result of a conspiracy to pervert the course of justice would seem to me probably to be a sufficient item of damage.

MR. RICHARDSON: Arguably. Not very good, but just.

MRS. JUSTICE SMITH: Not very good, but just about arguably.

MR. RICHARDSON: Just about arguably.

My Lady, the other thing is this. As I understand it, the action against the Humberside Police has now been settled. He has, I would imagine, some damages; I know not what. Therefore, that is an end of those proceedings. He has recovered whatever damage, whatever compensation, is thought to be appropriate in relation to that case. No more could be recoverable, apart

page 17

perhaps from some notional distress.

I know not what his case could be on that point. He may suggest that he did not recover as much as he would have done if this had not happened.

MR.RICHARDSON: Once again, my Lady, one would then have to investigate another piece of litigation.

MRS. JUSTICE SMITH: Certainly, and there is no mention of that in the Statement of Claim and no application to amend the Statement of Claim in the light of that settlement, which apparently has now taken place. But so far as striking the case out goes on the ground of the plaintiff's inability to demonstrate any damage, I would require some persuasion, I think, before I would seek to do that.

MR. RICHARDSON: My Lady, I would not seek to, because it is just there.

MRS. JUSTICE SMITH: I do bear in mind, Mr. Richardson, that it must not appear in any sense that a judge is anxious to dispose of an action aqainst another judge.

MR. RICHARDSON: No, quite.

MRS. JUSTICE SMITH: If there is any basis for this it must be litigated.

MR. RICHARDSON: My Lady, yes. May I therefore, given that observation, with which I respectfully agree, because I think it must never be asserted that any of us have indulged in any sort of protection of colleagues, however eminent they may be ---

MRS. JUSTICE SMITH: Or, indeed, however remote they may be.

MR. RICHARDSON: Or however remote they may be, indeed. But the point being this, that I think it is now wise, if I may say so, for the defendants to demonstrate to the plaintiff that there has been no skulduggery here whatever. He may not accept that at all, but I shall seek to have it demonstrated to him and it is not going to be done behind closed doors, or anything of that kind. It will be demonstrated in the context of, if may say so, coming back to court so that your Ladyship or another judge - perhaps it ought to be your Ladyship since you are rather seized of this matter.

MRS. JUSTICE SMITH: I think that it should be.

MR. RICHARDSON: So that we can demonstrate to him, either in court or elsewhere, what the position is. He can either then accept ---

MRS. JUSTICE SMITH: Whether he is satisfied about that, of course, is another matter.

page 18

MR. RICHARDSON: At least we will seek to do it. But if he will not accept that, I will then at least have some other evidence to place before your Ladyship for your Ladyship to look at this matter rather more in the round than you are able to at the moment on the inadequate pleadings as they are.

MRS. JUSTICE SMITH: Yes, I think so.

MR. RICHARDSON: I might add, just so that it is clear - as your Ladyship can see, I did not draft the defence in this action.

MRS. JUSTICE SMITH: No, I appreciate that.

MR RICHARDSON: It may be that there will have to be some amendment, but I am not going to

MRS. JUSTICE SMITH: I do not think that that need be done at the present time.

MR. RICHARDSON: I think it is more important that we get the shorthand writer with her notes and the original transcript before the court, so that further submissions can be made on this summons.

MRS. JUSTICE SMITH: Primarily on affidavit, with the notes and the transcript exhibited. If you wish to have her here, that is entirely a matter for you, but it will be an interlocutory application and primarily, of course, I would not hear oral evidence.

MR. RICHARDSON: No, exactly. I have no present intention to call her. It is simply in the interests of showing the plaintiff the position, have her here to demonstrate the matter in an appropriate forum.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: But on the actual summons itself, if we pursue the summonses, then plainly they will have to be done on affidavit form in the usual way.

My Lady, that is my application in the light of how proceedings have gone.

MRS. JUSTICE SMITH: Now, Mr. Hulbert, I know that you have heard everything that has been exchanged between Mr. Richardson and me. Have you understood it?

MR. HULBERT: I have, yes.

MRS. JUSTICE SMITH: You have. Now, I consider that at the present time your pleading - I know that you are not a lawyer and I think you will understand that I have been seeking to make allowances for that. I do not really think that your pleadings demonstrate as well as they should how you put your case against

page 19

Judge Simpson and Mrs. West when you allege that they have been corrupt. Now, I think that in order to make good the defect on your side, you would have really to demonstrate that there is something wrong with the shorthand note. Do you see?

MR. HULBERT: I understand.

MRS. JUSTICE SMITH: Now f I am not suggesting that you should do anything further yourself, because I have suggested and Mr. Richardson has agreed that it would be more appropriate if he takes those steps; it will be easier for him and he is going to bring some further evidence. I am proposing to adjourn this matter for that to happen. Part of the difficulty is that you have not brought your transcripts with you today, but in any event, even if you had, we have not got the original shorthand note. So it seems to me it would be sensible for that material to be obtained and I propose, therefore, to adjourn this matter. Have you any objection to that?

MR. HULBERT: I have no objections, my Lady. I would just to say one thing, that if the second respondent, Mrs. West, were to swear an affidavit saying everything is tickety-boo about the transcript, I would have no case.

MRS. JUSTICE SMITH: There you are, Mr. Richardson.

MR. HULBERT: If she is prepared to do that.

MR. RICHARDSON: My Lady, of course I will take instructions and if the matter can be compromised sensibly without any attendance before your Ladyship, all well and good. If on the other hand it cannot be, then plainly we will need an attendance before your Ladyship.

MRS. JUSTICE SMITH: I will reserve it for myself, if the matter has to come back. Would you like me to adjourn it sinedie?

MR. RICHARDSON: Please, upon application.

MRS. JUSTICE SMITH: To be restored on the application of either party.

MR. RICHARDSON: Indeed.

MRS. JUSTICE SMITH: So far as costs are concerned ---

MR. RICHARDSON: My Lady, I would be asking for the costs --- It is improper for me to ask for them at this juncture. I could not possibly, because your Ladyship has not made any ruling.

MRS. JUSTICE SMITH: No.

MR. RICHARDSON: The order below is extant at the moment.

page 20

MRS. JUSTICE SMITH: Yes.

MR . RICHARDSON: If we come back before your Ladyship because a hearing is necessary for one reason or another ---

MRS. JUSTICE SMITH: Then there is no difficulty.

MR. RICHARDSON: Then I shall make an application. At the moment, I shall not make one, because I think it would be improper for me to make one. I simply give notice.

MRS. JUSTICE SMITH: I adjourn the question of costs as well.

MR. RICHARDSON: I am obliged. If I can just say this so that Mr. Hulbert can hear the matter, if we are unable to compromise the matter in a sensible way, in the way that is being proposed of there being an affidavit with demonstrable probity on that document and we have to come back to court to pursue the matter, then I shall in due course of time be applying for costs if it is then thought appropriate. At this juncture, I am not going to.

MRS. JUSTICE SMITH: Do you think, Mr. Richardson, that if this matter does come back, it would be appropriate to have a transcript of today's proceedings?

MR. RICHARDSON: My Lady, I asked for them to be transcribed, because given that we are dealing with a judge I thought it appropriate that there be utter probity.

MRS. JUSTICE SMITH: I understand entirely why you made that arrangement and I approve of it. Perhaps we should leave that matter, but may I ask you to give consideration to it if the matter has to come back?

MR. RICHARDSON: My Lady, yes.

MRS. JUSTICE SMITH: It may be sensible. It may not be necessary.

MR. RICHARDSON: My Lady, what I propose to do, again so that Mr. Hulbert can hear, is I will within a reasonably short period of time, I hope within next fortnight - I doubt if I can do it during this week or next week - I will have a conference with those instructing me when I will ask that the shorthand writer be present with all the relevant notes and then we can organize an affidavit to be sworn in the appropriate way and be served. I doubt if that can be done within twenty-eight days because of the break next week, but I am hoping within a month of today to have in Mr. Hulbert's possession an affidavit, and then those instructing me will communicate with him as to whether he wishes to have the case relisted or he wishes to discontinue or whatever.

MRS. JUSTICE SMITH: I think perhaps what I will do is to

page 21

say that I adjourn the matter sine die, to be relisted before me on the application of either party, but not before six weeks have elapsed.

MR. RICHARDSON: I am obliged, my Lady. My Lady might I inquire as to your whereabouts?

MRS. JUSTICE SMITH: Yes. I am in Sheffield until changeover day, which is 14th June. Thereafter, I shall be in London, initially in the Royal Courts of Justice and then for one week in the EAT, and then in the Royal Courts of Justice until the end of July.

MR. RICHARDSON: So basically Leeds, Sheffield or London in one way or another?

MRS. JUSTICE SMITH: Yes, but Leeds only now until the end of this week. So I may not be entirely easy to find, but I think in view of the views I have expressed it would not be appropriate to release this matter to anybody else.

MR. RICHARDSON: I entirely agree. My Lady, the only concern I have is that I know Judge Simpson sits at Sheffield on a regular basis and I know your Ladyship is, of course, a High Court judge and Judge Simpson is a Circuit Judge, but I do not want there to be any suggestion of communication.

MRS. JUSTICE SMITH: I can assure everybody that I shall not mention this matter to him.

MR. RICHARDSON: I am very much obliged.

MRS. JUSTICE SMITH: I can assure you of that, Mr. Hulbert. I am not sure whether he is, in fact, at Sheffield at the present time, or will be after Whitsuntide, but, if he is, I shall not speak to him about it.

MR. RICHARDSON: My Lady, I thought it right I should provoke that comment, in view of what is being said.

MRS. JUSTICE SMITH: Yes, you were quite right. Thank you very much.

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I CERTIFY THAT I took the shorthand notes of the proceedings of the trial of JAMES FREDERICK HULBERT -v- HIS HONOUR JUDGE ALAN SIMPSON and SHEILA M. WEST and that the pages numbered 1 to 21 are a correct and complete transcript of my said shorthand notes to the best of my skill and ability.

Signed....R. C. Brooks
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Transcript of continuation of appeal six months later
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Hearing of application for leave to appeal to Court of Appeal = LJs Saville & Morrill
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Scanned evidence that proves alleged facts