JAMES HULBERT -v- HIS HONOUR JUDGE SIMPSON and SHEILA WEST

12th NOVEMBER 1996

DRAFT JUDGEMENT (AS APPROVED)

MRS. JUSTICE SMITH:  This is an appeal from an Order of District Judge Weston made on the 13th of February 1996 in which he struck out the Statement of Claim in this action as disclosing no reasonable cause of action and/or being scandalous, vexatious, or an abuse of process. There is
also before the court an appeal in relation to the defence of the second defendant, which the Plaintiff alleges was filed without instructions, but that application would only be effective if the Plaintiff's appeal is allowed. I propose. therefore, to deal with the Plaintiff's appeal from the striking out order.

The history of this matter is this. In 1991 the Plaintiff was charged with offences of making off without payment and assault with intent to resist arrest. It was alleged that he ran away from a taxi driver, without paying the taxi fare and that when the Police were summoned and entered his house
he struck an Officer in an attempt to resist arrest.

The matter came on for trial at Hull Crown Court before Judge Simpson, the First Defendant in this action, and a Jury, and after a trial lasting, I think, certainly more than one day, he was duly acquitted.

Thereafter he brought a claim against the Police for wrongful arrest and Malicious Prosecution, and in due course, that claim was settled. I do not know for how much, and it matters not for present purposes.

In 1995 the Plaintiff commenced the present action alleging that Judge Simpson, the First Defendant, and the Second Defendant, who was one of the shorthand writers who had noted down the evidence during the criminal trial, had conspired together to alter the record of that which had taken place during the trial for the purpose of protecting the Police from the Plaintiff's civil claim and with the purpose of hindering his claim so that he had been obliged to settle for less than otherwise would have been the case.

The Defendants sought to strike out the Statement of Claim under the Rules of the Supreme Court Ord.18 r. 19. The District Judge struck out the Statement of Claim and this is a rehearing.

[Note - a  rehearing of the Defendants application to have the claim struck out.under RSC Order  18 rule 19 ]

The matter came before me in May 1996, and I adjourned the matter without determination as the Plaintiff had not produced the transcripts which it was necessary for me to see in order to understand his allegations.

[Comment - Not so: Justice Smith adjourned the hearing to allow the defendant to provide evidence in order that she could strike out the claim as being vexatious as these extracts from the certified transcript of that hearing clearly reveals (quotes)
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: But certainly in any event in relation to the application, I would seek an
adjournment so that that evidence could be obtained. (unquote)
The evidence that was provided by the 2nd defendant prior to Justice Smith's judgement was her shorthand notebooks that had clearly been tampered with with pages missing, a damaged coil and damage to to tops of some pages. Scanned at    http://corruption.faithweb.com/notebook.html also provided by the 2nd defendant was a false affidavit, known by Mrs. Justice Smith to be false, because she had the evidence of a court order before her that demonstrated the 2nd defendant's perjury. Both documents are scanned at:  http://corruption.faithweb.com/perjury.html
[end of comment]

Also he did indicate at that time that were Mrs. West , the Second Defendant,  to verify the truth and accuracy of her transcript, in other words were she to certify that it represented a true record of the proceedings so far as she had been capable of providing it, then the Plaintiff would be content
and would discontinue his action.

[comment]
Not quite true. No  probity was provided on the truth of the 2nd defendant's affidavit as was the undertaking given by Counsel also, as above, a court order proved the affidavit false.

Mr. HULBERT: That is not so, my Lady.

MRS. JUSTICE SMITH:  Please do not interrupt.

MR. HULBERT:  Its not true.  Its just not true.

MRS. JUSTICE SMITH:  However, today, although Mrs. West has filed an affidavit certifying the accuracy of her transcript , so far as she was able to provide it , the Plaintiff has not withdrawn. That is of no great importance, as this matter remains before me for determination as an appeal.
I mention it only for the sake of completeness.

[Comment] And of course for the record. [End of comment]

It is, of course, a shocking thing for a Plaintiff to allege that a Judge would stoop to such a disgraceful action as to tamper with a record of Court proceedings, however, I put that from my mind.

[Comment] But not from the Judgement. [End of comment]

I must approach this appeal on the assumption that the Plaintiff is able at least to, demonstrate through his own evidence, that the transcript is inaccurate.

The accuracy or inaccuracy of the transcript as shown to me is a question of pure fact, which, if it falls to be determined can only be determined by the trial Judge.

[Comment Or a Jury. [End of comment]

The question which I have to ask myself is, assuming that the Plaintiff is able to satisfy the Judge of the fact that the transcript is inaccurate in the ways in which he alleges, whether the trial Judge would then be able to conclude that the Plaintiff's case was made out.

Mr. Hulbert, the Plaintiff, has accepted that there is no direct evidence of a conspiracy. He also has no direct evidence that Judge Simpson has put his head together with the shorthand writer and required her to produce a false transcript. He advances his case on the basis that the  transcript does not make sense as it presently appears and that, he having explained the ways in which it is false, the Judge will draw the  inference that there must have been a conspiracy, and, what is more, a  conspiracy designed to achieve the objects of which the Plaintiff has  spoken, namely the hindrance of his civil claim and the protection of  the Police.

[my comment]
Trouble with that piece of nonsense is that i advanced my case against Mrs.West by providing most of the evidence which is scanned on my website at http://corruption.faithweb.com/notebook.html and this is what Justice Smith had to say about that aspect of conspiracy before coming to her judgement.
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.
and
MRS. JUSTICE \b0 SMITH: That is often the case in fraud. Fraud tends to be committed - and corruption indeed - in privacy, cloaked in secrecy.
and
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
[end of my comments and quotes]
 
 I have now had the opportunity of examining the transcript and considering in detail the allegations which the Plaintiff has made. They  fall into three categories. One relates to the evidence at the trial of  Sergeant Starns, and an issue as to whether he claimed to have written  certain words on the Plaintiff's custody record. The Plaintiff claim:  that this Officer had consistently claimed that he had not written the  words in question, which were "Police assault", on the custody record, and had then changed his evidence on learning that the Jury were going  to be invited to examine the custody record for themselves.
 
 The Plaintiff alleges that Judge Simpson has subsequently caused six alterations to be made in the transcript to make it appear that the  Officer was saying that he had written "Police assault" on the custody  record, but was also seeking to, as it were, mitigate the effect of his  evidence by explaining that those words could have been written at a  later date and by somebody else.
 
 Having considered that allegation, I cannot see how a Judge could at  the trial draw the inference which the Plaintiff seeks to have drawn.

[my comment] at the earlier hearing she said that if the claim falls to be determined it falls to be determined by a trial judge. She was not there to try the issues and if there was insufficient evidence then she could have struck out the claim as being vexatious etc which was her reason for adjourning the initial hearing. [end]

 It  seems to me that in respect of each of the allegations of alteration  that he makes, he would be asking the Judge to make a giant leap from  the mere finding that the transcript was not accurate to the conclusion  that there had been a conspiracy.

[my comment]
But this is what was said regarding conspiracy at the initial hearing.[Quote}
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. [unquote]
Not relevant, but when the attempt to have it struck out as being vexatious 6 months later had failed, it suddenly became relevant: curious. [end]

 I do not think that this action has any chance of success. I think the  action is unsustainable and under the powers which I have under Ord.18  r.19, I conclude that the action should be struck out, and the appeal  dismissed.

[my comment]
Struck out, but without offering any ground for striking it out: simply dismissed. Striking out a claim under order 18 r 19 did not make allowance for striking out a claim as being unsustainable, because as Justice Smith had earlier stated: that was a matter for a trial judge and in any event, had it been unsustainable she would have struck it out on a ground that was covered by Ord.18 r 19: scandalous vexatious frivolous. for which she had allowed 6 months for the defendant to provide evidence.

Furthermore Rule of the Supreme Court [quote]
Principles: 18/19/11 para (i)
So long as the statement of claim or the particulars (Davey v Bentink [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out. [unquote]
And it must be borne in mind that, under the order, striking out as disclosing no reasonable cause of action,  no evidence is permissible and is determined solely upon examination of the Statement of Claim.

[end of comments]
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Judgement of Lord Justice Saville
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