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Complaints, Correspondence and Litigation Team

1st Floor, Post Point 1.4 Grimsby


102 Petty France North East Lincolnshire
London DN32 0
SW1H 9AJ

19 March 2017

Re: Grimsby Magistrates' court Complaint - submitted 25 June 2016

I am escalating my complaint to Customer Service Team as I consider the review of Mrs Watt's
response leaves a number of concerns that require further investigation. I suspect also that the
representations I have submitted have been misinterpreted and some completely overlooked.

The response suggests that HMCTS has some awareness of the inconvenience caused, but there is
no evidence that it appreciates anywhere near the full extent of the injustice directly resulting
from these matters which has had to be endured over the four years this has been ongoing. Details
are briefly set out on the initial page of the 25 June 2016 complaint.

Copies of the undelivered correspondence are appended in chronological order as well as the
representations made on the reply from the Justices Clerk and the cluster managers response
*
(emails of 26 January 22 February 2017). The original complaint and various supporting
documents are provided separately which are itemised below:

LIST OF SUPPORTING DOCUMENTS

No DATE DESCRIPTION FILE NAME

1 25 June 16 Complaint Handling and Enquiries Team - 102 Complaint Handling and
Petty France Enquiries Team - 102 Petty
France.pdf
2 Various Appeal documents (Missing items positioned in Case stated application missing
date order) docs.pdf
3 2017 Royal Mail's registered envelope, contents and Chron p5 - Env - contents.pdf
relevant page of Chronology
4 2017 Consent Order (case bundle document high Consent order.pdf
court application)
5 2017 Grounds of appeal (case bundle document high Grounds of appeal.pdf
court application)
6 2017 Skeleton Argument and Exhibits (case bundle Skeleton and Exhibits.pdf
document high court application)
7 2017 Chronology of events (case bundle document Chronology draft.pdf
high court application)

*
Note: Letter item no 5 wrongly dated in the email; correct date is 29 May 2015.

Yours sincerely

.
Complaint escalated to HMCTS Complaint handling

19 March 2017

1. Re. Grimsby Magistrates' Court Complaint - submitted 25 June 2016

1. Regarding the 28 week delay for obtaining the response (3 January 2017), the investigating
manager has stated that 'Mrs Watts did indeed post her reply' on 22 July 2016. Unless Mr
Hopgood actually witnessed this or has some definitive proof that the response was posted
then it is not seen how this statement can be justified. Mr Hopgood doesn't support his
assertion that the Justices' Clerk did in fact post her reply; it has to be assumed that he was
either told this or has simply taken the 22 July date on the copy made 16 December 2016 to be
a posting date.

2. He has been unable to offer an explanation as to why the letter was not delivered and implies
that his inability to explain may somehow be attributable to the letter not being returned as
undelivered. The fact that a letter was not returned would more likely explain that on the
balance of probabilities it was never posted which would be reinforced by the discovery of
nine other letters that were neither delivered nor returned. This demonstrates perfectly why a
complainant can hope to achieve nothing from a process whereby employees of HMCTS have
essentially to investigate their colleagues because on the balance of probabilities, these letters
will have been produced in response to investigations and were therefore never posted. This is
presumably why the cluster manager for Humber & South Yorkshire prefers not to offer the
most feasible explanation.

2. Initial delay (N/A)

3. Unnecessary Claim for Mandatory Order

3. Representations I made in this matter have been misinterpreted. The 'judicial decision' of the
justices requiring recognizance was not actually the complaint, rather it was the failure to
address the queries I had formally submitted about the recognizance, initially in a letter dated
5 February 2013 and subsequently in the letter before action (29 April 2013). In-between the
initial correspondence and the letter advising of the intention to bring judicial review
proceedings for a mandatory order, the court was prompted by email to respond on three
occasions.
4. Correspondence appended to the 25 June complaint shows this was done twice in February
(19th & 26th) and on 27 March 2013. The court responded on 27 February 2013 confirming
that the correspondence was receiving attention from the Justices' Clerk who would respond
further in due course. However, there was never a response, and it was not known until the
judicial review claim was underway that had an arrangement been made, the appropriateness
of the recognizance could have been considered by the court.

5. The Acknowledgement of Service (AOS) was signed for on 16 July 2013 suggesting that the
Justices' Clerk does not routinely disregard the requirement to send important documents by
Royal Mail's recorded delivery service. A scan of the envelope (attached) provides evidence
that the letter had been delivered. Accompanying the attachment is the envelope's contents
along with the relevant page of the Chronology of events intended for the high court appeal
(case stated).

6. It will be noted in Section C of the AOS (the court's summary of grounds) that the reasons
given to the Administrative court for the hold up was as follows:

To date the claimant has not appeared before the defendant court to enter into a
recognizance. Had he done so the question of the appropriateness of the recognizance
and/or the amount could have been considered by the court.

...in the interests of saving the Administrative Court time and public money on a matter
that is likely to reach the Administrative Court via the route of an appeal by way of case
stated, the defendant court gives an undertaking that the draft case will be served upon the
defendant within fourteen days....

7. It was disingenuous to claim that the court was waiting for me to enter into a recognizance
when the court had expressly stated that the 5 February correspondence querying the
recognizance was receiving attention from the Justices' Clerk who would respond further in
due course. Where my queries with the Magistrates' court went unanswered, the judicial
review process succeeded in drawing from the Clerk that if I had appeared before the court to
enter into a recognizance, its appropriateness and/or the amount could have been considered.
Having this information initially would have rendered the judicial review claim unnecessary,
but for some reason it was withheld for almost six months.
8. It was irrational for the defendant court to express regard for the Administrative Court's time
and public money as reasons for waiving its rights to a recognizance. The most effective way
to have saved the court's time and public money would not have been by withholding crucial
information until a mandatory order was sought but rather provided it at the appropriate time.

9. It was clearly administrative failure to have delayed clarifying a concern that had been raised
22 weeks earlier, which in any event would never have been clarified were it not for the claim
being made for a mandatory order. The complaint was about the unacceptable failure to deal
with the query when the answer was obviously to hand and could have been provided without
delay.

10. The fact that the justices required a recognizance set at 500 and that it was a judicial decision
has no relevance to this complaint, as the sole cause of the judicial review claim being
instituted was down to the administrative failure in dealing with correspondence.

4. Unanswered correspondence to obtain final case

11. The first paragraph in Mr Hopgood's response in this matter does not really answer any of the
concerns. There is no obvious relevance to the remarks regarding the Justices Clerks email
of 6 March 2014 referring to my case as a whole rather than just the Case Stated nor
emphasising that the Draft Case had by then been served and on which Id made
representations on 19 August 2013. The court was telephoned specifically about why the Final
Case had not been served which according to the Magistrates court rules 1981 (MCR) should
have been by 10 September 2013 (written communications were not being responded to). The
calls were made over a period beginning 3 March 2014, before the Justices Clerks email, up
until 28 March, long after the undertaking to communicate the position regarding the case
(advising on the next steps) was not acted on.

12. The Justices Clerk was first made aware on 10 January 2014 and again on 13 February that
the 19 December 2013 letter, allegedly posted, had not been received. It was also obvious that
the recent claim of its sending was not known about then. The content of the 6 March 2014
email considered in the context of what is set out in the alleged 19 December 2013 and 20
February 2014 letters is as irrational as it gets. Both letters explicitly set out what steps are
required regarding lodging the Final Case should I wish to pursue the appeal, yet the 6 March
2014 email stated the following:
I am due to be in meetings all day today but I will have written communication with you
either later today or first thing tomorrow setting out the position with your case and
advising you on next steps.

13. There is no uncertainty about the email being sent on 6 March 2014 which is the only
correspondence sent by the Justices Clerk I received (after 16 July 2013 signed for AOS).
Predated letters are produced easily, albeit not always credibly nor with proof of posting,
whereas correspondence sent electronically does not provide that flexibility. Contrast the
emails content with what appeared both in the alleged 19 December 2013 and 20 February
2014 letters before it, and again in the alleged 1 May 2014 letter afterwards, all containing the
same typo (emphasis added):

If you wish to pursue your appeal, the case must be lodged with the Administrative Court
Office at the Royal Courts of Justice within 10 days of receiving it from this office, and
within four days of lodging the case, the you must serve on the Respondent a notice of
entry of the appeal together with a copy of the case.

14. The several emails/letters querying the service of the Final Case and the Justices Clerks one
email response are the only communications that can be of assistance to establish the events.
If the Final Case had been produced and served on 19 December 2013 and sent again on 20
February 2014 then it would have been imperative to have stated this in the email, more so on
account of the court being pressured for not complying with the MCR.

15. If there was a question of the document not being received, which obviously there was, it
would have been the Justices Clerks priority (on first being made aware) to ensure that a
record of posting was retained so in the likely event evidence was required it could have been
presented as proof. The object is defeated of sending an important document by recorded
delivery if a record is not kept of that delivery.

Letters not acknowledged

16. The Justices Clerk received confirmation from myself on two separate occasions upon the
request that letters were acknowledged. The first was the registered envelope dated 12 July
2013 inside which was the AOS regarding the judicial review claim. An email was sent to
acknowledge receipt on 16 July 2013 (the day the letter was signed for). The second dated 24
July 2013 was the Draft Case which was acknowledged in an email of 30 July 2013.
17. The correspondence next in date order (undelivered letter of 19 December 2013) asked
similarly if I would acknowledge receipt of the correspondence and enclosure. Of course, no
acknowledgement was sent as the letter was never delivered and a copy of it only received on
3 January 2017. If the letter had been sent, it would have been shortly after this that the first
alarm bells should have rung. Another correspondence (undelivered letter of 15 April 2016)
also asked for acknowledgement which was not sent for the same obvious reason.

18. Confirmation is presumably asked for to ensure safe receipt of important documents and if
there is no acknowledgement it must be considered a possibility that the delivery has failed,
especially when the same recipient has previously acknowledged such requests.

Other inconsistencies

19. The Justices' Clerk was aware from a letter copied to the interested parties dated 20 November
2013 of a suspicion I had that the court's undertaking might have been to deliver only the draft
case. The letter updating the Administrative Court expressed this on account of there being no
delivery of the final signed case which by that time had overrun by approximately two
months.

20. There was no communication indicating whether the undertaking had been to deliver only the
Draft Case or also the Final Case upon representations being made on the draft.
Representations made by myself had been served on 19 August 2013 together with a letter
advising the Court that (in effect) it had up until 10 September 2013 to state and sign the case
in accordance with rule 77 of the MCR.

21. The copy of the undelivered Final Case documents dated 19 December 2013 acknowledges
receipt of my representations made on the Draft Case served on 19 August 2013 which is an
extraordinary 4 month delay. The letter explained that the court, by request of the council,
granted an extension to the time in which it may submit representations on the Draft Case as
the Council stated that it had not received the Draft Case.

22. The council's representations were served on the court and myself on 9 September 2013 but
there is no evidence of when the council sought an extension or when it was granted. In
accordance with rule 78(2) of the MCR the Justices' Clerk was obliged to attach a statement of
the extension and the reasons for it on serving the final case. Though the copy of the letter
dated 19 December 2013 gave the reason, i.e., that 'the Council stated that they had not
received the draft case', an appropriate statement of the extension was not attached.

23. It should be noted that the council became aware that the Draft Case had been unsuccessfully
sent no later than 19 August 2013 when representations on the draft were served by myself on
the interested parties. Unless or until it can be determined the date of service in respect of the
council it may be assumed (in the court's favour) that the date on which the council served
representations and the extension start date were the same and the extended time was equal to
the number of days originally provided under rule 77(2) of the MCR. On this basis, the latest
date by which the court had to state and sign the case would have been 21 October 2013 (42
days from 9 September).

24. However, observing that 9 September 2013 coincides with 21 days after the council became
aware that it had not received the draft, it is more feasible that the extension would have been
granted on 19 August 2013, therefore the date on which the council served representations
was the latest day on which representations may have been made under rule 77(2) of the
MCR. On this basis, the latest date by which the court had to state and sign the case would
have been 30 September 2013 (21 days from 9 September).

25. The copy of the undelivered Final Case document is dated 19 December 2013, so after
factoring in the extension that had been granted, the case, if it had been sent as alleged, would
have been 80 days past the 30 September date required for service.

Freedom of Information

26. The second paragraph in Mr Hopgood's response in this matter addresses specifically the Case
Stated document and agrees that it should have been sent by registered post in accordance
with the MCR. The Freedom of Information request made to the MOJ was referred to which
determined that records for 2013 were no longer available and could not confirm whether or
not the Case Stated had been sent by registered post. The MOJ confirmed that the request to
send it by recorded delivery would have been made by the MOJ as it is their practice, in
accordance with the rules to send the "case stated" paper work out by recorded delivery.
27. It may also be relevant to consider another Freedom of Information request and why it had
been labelled vexatious and refused to be complied with on those grounds. The Judicial
Appointments and Conduct Ombudsman. 2015-16 Annual Report included a sample of
complaints, one of which concerned a case escalated to the Ombudsman that was initially
dealt with by an unnamed Magistrates' Advisory Committee (Case Study five, Page 30 of the
Report). The extract provided enough information to determine that it was not my complaint,
though in similar circumstances to mine, the complainant had not received the Advisory
Committee's letter dismissing the complaint.

28. The Justices' Clerk is also the Secretary to the Humber Advisory Committee so it seemed
worth exploring whether the Advisory Committee referred to in Case Study five was in fact
the Humber Advisory Committee. A Freedom of Information request was therefore submitted
asking which Advisory Committee was referred to in the case study plus any other instances
where the complainant stated similarly that they had not received correspondence from the
Advisory Committee. However, the Ombudsman refused to disclose the information
maintaining his decision that the request was vexatious after carrying out an Internal Review.
Obviously the request was not vexatious and it would be very worth while finding out the
answer. Although no Decision Notice has been issued the matter is with the Information
Commissioner and allocated a reference number which is FS50668580.

29. Likewise, another request has been considered to be vexatious which simply asked for the
identity of the Deputy Chairman of the Advisory Committee who in one of the undelivered
letters (dated 16 September 2014) is said to have dealt with the complaint. The copy, along
with two others relating to the matter had not been seen until 23 May 2016.

5. Judicial complaint to Humber Advisory Committee

30. The investigating manager revisits the Royal Mail issues which were first addressed in item 1
and states the following (emphasis added):

Your concern here is again about the number of letters sent by HMCTS in Humber &
South Yorkshire, via Royal Mail, that were not delivered to you, and neither were they
returned to HMCTS undelivered. You say that 'there has to be another explanation',
though you do not offer another explanation.
31. The explanation is that on the balance of probabilities the letters were never posted and will
have been produced in response to investigations (see above para 2). This explanation was
offered in correspondence contained in the document supporting the complaint (Case stated
application missing docs). See below for examples:

3 March 2016 email to the Judicial Appointments & Conduct Ombudsman (page 24)

As you will recall, the email I sent Mrs Watts on 25 February 2016, asked for the case
stated to be re-sent and to be informed of the original date it was served. The Justices'
Clerk has not responded to the email which raises the question, why, if the document
exists and has been sent once would it be an issue to do so again. The answer, in all
probability lies in the fact that the final case stated has never been sent nor produced
which can also be said of the 16 September 2014, 29 May and 6 July 2015 letters. On the
balance of probabilities, these letters will have been produced in response to the
investigation, which by your own admission took a significant amount of time to obtain
from the Advisory Committee

24 May 2016 email to the Judicial Appointments & Conduct Ombudsman (page 38)

To take over 12 weeks to disclose the documents does tend to suggest what I believe has
happened which is they have been produced purposely for the Ombudsman's investigation.
This would be supported by the fact that the final case stated, which is said in the 16
September 2014 letter by the Justices' Clerk who handled the complaint was sent to me
has apparently never been seen by anyone. Presumably the Ombudsman has not at any
time been furnished with the document and I definitely have not despite requesting or
enquiring about it on the following occasions:
............
The odds are virtually nil that four items of correspondence correctly addressed, all but a
minor error being sent that neither reached me nor were returned. I have stated that none
of the correspondence reached me and am prepared to declare so in a signed statement of
truth.

I would think the most sensible way forward before a final report is produced is for the
relevant person at the Advisory Committee to make a written statement of truth that the
documents said to have been sent to me on the respective dates were actually produced
and sent around that time.

27 May 2016 email to the Judicial Appointments & Conduct Ombudsman (page 41)

The Ombudsman has decided the outcome purely on the basis that he believes the
Advisory Committee's version of events when the overwhelming evidence is that the
letters have been produced afterwards and in response to preliminary enquiries.
...............
I doubt the Ombudsman disagreed with my assertion that the odds of four items of
correspondence failing to be delivered are virtually zero. If he doesn't the matter
effectively comes down to being my word against the relevant person at the Advisory
Committee's. I have stated that none of the correspondence reached me and prepared to
declare so in a signed statement of truth and suggest that the relevant person at the
Advisory Committee does similar. However, this proposal has been ignored and believe it
has been because discovering the truth might not fit in with the Ombudsman's agenda.

You of course have the final agreed Case Stated now

32. Due to the unacceptable amount of time taken to obtain the Final Case there is now a financial
barrier to progress the matter which did not exist when the appeal was embarked upon. When
my appeal should have been at the stage for lodging, I was entitled to 100% fee remission due
to my financial circumstances. It was only discovered, the last day I had for lodging case that
the criteria on which entitlement to fee remission applied had changed and fees were payable
in full.

33. In between receiving the final signed case on 16 January 2017 and discovering there was no
longer entitlement to fee remission, additional work had been done amending papers to
account for the alleged letters that were never delivered but which were relevant to the case.
Hundreds of pages of the case had been printed off and the Appellants Notice completed
ready for lodging in the high court. A number of amendments had already been necessary
because of the 3 or so years delay, for example the 6 May 2015 judgment in the case between
R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) meant almost the entire
case had to be reworked. This case was relevant to mine as it was adjudged by the high court
that awarding costs without having sufficient relevant information from the billing authority
of how they had been arrived at was unlawful. This is one of the questions of law asked of the
high court to determine in my appeal so I am being caused this protracted injustice in a matter
already settled by the high court.

34. The decision to appeal the Magistrates court order was made on the basis that my annual
income, effectively none, was below the threshold which one would be entitled to fee
remission. Prescribed court fees were disproportionate to the amount disputed and the
possibility of losing the case meant it would be madness to proceed without consent by the
parties (which was the plan) that there be no order as to costs. Therefore, the reasons are
obvious that the appeal was embarked upon because the issues were considered of public
importance and my financial circumstances allowed me to engage in the process at relatively
little outlay. That doesnt mean, however, that the difficulties in pursuing the appeal over such
a protracted period of time hasnt amounted to a cost which if quantified in monetary terms
would amount to hundreds of thousands of pounds.

35. As mentioned, I dont now qualify for fee remission, but would have up until 7 October 2013,
which is when a disposable capital test was introduced to the eligibility criteria for
determining fee remission. So, had there not been the departmental maladministration with
respect to handling the case due to staff leaving followed by the need to institute a judicial
review claim, then the final signed case would have been served several months before
eligibility changes were introduced. Even allowing for the error in serving the draft case on
the Council (a further delay), the extended date caused by the maladministration would still
have enabled the case to have been lodged before the changes. Though the final case was not
allegedly served until 19 December 2013, the estimated latest day for service of the final case
was 30 September 2013. However, this is largely academic because none of the
correspondence relating to the copies since obtained were actually delivered, and so even if
the final case was claimed to have been served by 30 September 2013 theres no logical
reason why that would have been delivered either.

36. Essentially it is departmental error which has led to the final case being delayed for so many
years and rendered the appeal too costly to proceed. The implications are not only that I am no
longer eligible for fee remission but it is apparent that the prescribed fee payable on filing a
respondents notice increased in 2016 from 235 to 528.

37. It was not intended to proceed further unless the terms of the drafted consent order were
agreed; however, the case would have needed to be lodged along with the fee (or application
for fee remission) at the Administrative Court Office before knowing that outcome. Paying
hundreds of pounds to then find out that the agreement was unobtainable was not a risk I
intended to take. The exposure to risk I had prepared for was limited to what would have, and
has been, the wasted time and effort expended in producing the case and engaging in the
process. In fact the council declined a request to provisionally agree terms of the proposed
consent order and failed to cooperate when asked for details about its legal representative
required in the Appellant's notice.