Judgment: approved by the Court for handing down Ref:

(Subject to editorial corrections) Delivered

No. 15/115714

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEENS BENCH DIVISION

Between:
JOHN CHRISTOPHER WALSH
Plaintiff;
AND

MINISTER OF JUSTICE DAVID FORD MLA, DR TONY McGLEENAN

Q.C., Ms KAREN QUINLIVAN Q.C., Mr SEAN DEVINE B.L. AND
Mr KEVIN R WINTERS, SOLICITOR.
Defendants.

Master McCorry

[1] The first and second defendants (the first being the Minister of Justice and the second
being Crown Counsel at the hearing of the plaintiff s judicial review proceedings in 2012), by
summons issued 26 May 2016, seek orders: (1) striking out the indorsement on the plaintiffs
writ of summons as disclosing no reasonable cause of action, or is scandalous, frivolous or
vexatious and an abuse of the process of the court, contrary Order 18, rule 19 (1) of the Rules
of the Court of Judicature (N.I.) 1980 and the inherent jurisdiction of the court; (2) striking
out the plaintiffs statement of claim for failure to comply with Order 18, rules 6,7,12, and 15
or as disclosing no reasonable cause of action and/or as scandalous, frivolous and vexatious,
pursuant to Order 18 rule 19. An additional application for security of costs was not argued
before the court and the first and second defendants reserve their right to do so at a later stage.

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[2] The third defendant (the plaintiffs senior counsel in the judicial review proceedings)
by summons issued 23 May 2016 seeks orders striking out the plaintiffs writ of summons
and subsequent pleadings pursuant to the inherent jurisdiction of the court and Order 18, rule
19 (1), as disclosing no reasonable cause of action, or as an abuse of process and that the
pleadings are unintelligible. Once again, an application for security of costs was not argued
and the third defendant reserves her right to do so at a later stage. The fourth and fifth
defendants (junior counsel and solicitor) by summons issued 10 June 2016 seek identical
relief and adopt the same position to their application for security of cost.

[3] The plaintiff, who represents himself, for his part has issued a summons for summary
judgment pursuant to Order 14 of the Rules against all defendants. The various applications
were heard together on 20 November 2016 and adjourned part heard for a further full day
hearing which took place on 10 April 2017. Between the hearings, and following directions
given by me at the end of the first day, the plaintiff issued a summons for leave to amend the
writ of summons attached to which was a draft amendment writ. On 10 April 2017 the
defendants, adopting a uniform approach, did not formally consent to the amendment of the
writ but had anticipated the nature of the amendments and were able to deal with any issues
arising therefrom. The Statement of Claim had been previously amended on a number of
occasions the last being 4 February 2016. The applications are considered by reference to that
amended writ of summons and amended statement of claim, the affidavits by each of the
parties and the skeleton arguments submitted by the plaintiff and each of the three counsel. At
the close of hearing on 10 April 2017, rather than list the applications for a third day, I
directed counsel in the first instance to file written submissions in response to the plaintiff s
arguments that day, with a further hearing only if necessary. I have now received all three
counsels’ submissions and although noting the plaintiffs objections to their content notified
by email, I am satisfied that no further hearing is required.

Factual Background and History of Earlier Proceedings

[4] The factual background to the case goes back to the plaintiffs conviction on 7
December 1992, following a not guilty plea, for possession of explosives with intention to
endanger life. He was sentenced to 14 years imprisonment of which 7 was served and was
released in 1998. The offence was allegedly committed by the plaintiff on 5 June 1991 when
he was stopped by soldiers at an alleyway running between houses at Suffolk Road, Belfast,

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in close proximity to a fully primed coffee jar bomb which was sitting on a wall. The patrol
leader, a Corporal Blacklock said that the plaintiff had the coffee jar in his hand when ordered
to take his hands out of his pockets and the corporal had told him to set it on the wall. The
plaintiff denied this version of events and maintained that he first saw the coffee jar on the
wall when the corporal asked him what it was. The Crown evidence consisting of the corporal
and three other soldiers and some technical witnesses was challenged at trial when a defence
submission of no case to answer was made on the basis that only one other soldier (Private
Boyce) claimed to have seen the plaintiff with the jar in his hand and the corporal under cross
examination could not remember how the plaintiff had been holding the jar. Furthermore
there was little forensic evidence to connect the plaintiff with the coffee jar. The application
was dismissed by Judge Petrie QC, who considered that the lack of traces of explosives on the
plaintiffs clothing was “not of great significance”. After repeated testing traces of RDX (an
explosive compound) had been found on his left hand.

[5] On 21 December 1993 the plaintiffs appeal against conviction was dismissed by the
Court of Appeal. On 10 March 1997 the plaintiff applied to the Secretary of State to review
the conviction under section 1 4(1)(a) of the Criminal Appeal (NI) Act 1998, and upon
establishment of the Criminal Cases Review Commission at that time the case passed into its
domain. On 27 March 2000 the Commission referred the case back to the Court of Appeal
which on 1 1 January 2002 upheld the conviction for a second time. It considered the issue of
the limited forensic evidence but was not persuaded by the evidence of an expert retained by
the plaintiff Dr Lloyd preferring instead that of the crown expert Dr Murray (who apparently
did not give evidence at the appeal, a point now emphasised by the plaintiff). The Court did
however criticise an adverse inference drawn by the trial judge against the plaintiff on the
basis of evidence he gave about another man preceding him into the alleyway. On 24 January
2007 the Court of Appeal gave leave to re-open the appeal and on 16 March 2010 allowed the
appeal and quashed the conviction. The issues considered by the Court at that stage included:
a fresh statement made by Private Boyce casting into doubt what he could actually have seen
at the time the plaintiff was detained; the absence of fingerprints on the coffee jar; the alleged
failure by the Crown to disclose the presence in the immediate area of a well-known terrorist;
and the evidence of passers-by whose original evidence had been dismissed. At [37] of his
judgment the Lord Chief Justice said:

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 “As a result of the second hearing before the Court of Appeal the adverse inference
which formed the main criticism of the appellant ’s evidence has fallen away. The fresh
evidence in relation to fingerprints might reasonably have affected the learned trial
judge ’s view as to whether the forensic evidence was neutral. The second statement
from Private Boyce gives some material which might have affected the evaluation of
his reliability. For those reasons we are left with a significant sense of unease about
the safety of this verdict. We bear in mind that the appellant is a person of previously
good character. It is on this basis that we allow this appeal. ”

Thus the conviction was quashed because of the Court’s unease as to its safety rather than on
any stronger basis indicating a miscarriage of justice or a finding of demonstrable innocence.

[6] On 7 April 2010 the plaintiff applied to the Secretary of State for compensation for
miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988. Following
devolution of justice and policing powers the application fell to be considered by the
Department of Justice. It issued a ‘minded to refuse’ letter on 23 June 2010 which produced
an exchange of correspondence between the Department and the plaintiff personally and his
solicitor (the fifth Defendant).This included the plaintiffs detailed representations dated 19
August 2010. On 9 March 2011 an application for leave to apply for Judicial Review of a
decision of the Chief Constable (refusing to order a criminal prosecution against the
prosecuting counsel at the initial trial) was dismissed by Weatherup J. The plaintiff
represented himself and the Mr McGleenan (second defendant) represented the Department,
Chief Constable and Prosecution Service. Applications against the Department of Justice (the
second defendant) for refusal of compensation and the Northern Ireland Human Rights
Commission, in respect of its response to the plaintiffs requests for assistance, were
adjourned pending the decision of the Supreme Court in McCartney and MacDermott (May
2011). That case established the four categories of case for the purposes of assessing
entitlement to compensation, with only categories 1 and 2 being deemed compensable.
Category 1 is: fresh evidence clearly shows the defendant is innocent. Category 2 is: fresh
evidence is such that had it been available no reasonable jury could properly convict.
Category 3 is: fresh evidence renders conviction unsafe because had it been available a
reasonable jury might or might not have convicted. Category 4 is where something seriously
went wrong at trial resulting in conviction of someone who should not have been convicted.
Categories 1 and 2 are both included in the concept of miscarriage of justice. Category 3,

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which covers most cases where a conviction is quashed, is not and neither is Category 4
which is essentially abuse of process.

[7] On 1 6 June 2011 the Department considering the application in the light of McCartney
and MacDermott, in another ‘minded to refuse’ letter, sought the plaintiffs further comments
which he provided, and on 5 July 2011 the Minister (the first defendant) responded refusing
compensation. A request for reconsideration was refused on 10 May 2012.This brings us to
the application for Judicial Review heard by Weatherup J on 3 1 May 2012 which is central to
the present case against al defendants. In a judgment delivered 16 June 2012 he referred the
matter back for reconsideration by the Department in the light of his judgment which
technically was a successful outcome for the plaintiff. However, it was the events leading up
to this hearing and the case argued for the plaintiff at hearing which forms the basis for his
present claims against his legal team, including senior counsel Ms Quinlivan QC, junior
counsel Mr Devine and solicitor Mr Winters (the third fourth and fifth defendants). At the
heart of this case is the plaintiffs determined belief that his case was in Category 1, in other
words that he was demonstrably innocent, but at the Judicial Review hearing on 31 May 20 1 5
the only arguments put forward related to the issue whether he was Category 2 or category 3.

[8] Two further stages in the history of the proceedings include an application for a Writ
of Coram Nobis, in effect asking Weatherup J to review his judgment of 18 June 2012. This
remedy was abolished in Victorian Times after the creation of the Court of Appeal, and was
dismissed by Weatherup J on 26 September 2012 (judgment 20 October 2012), as was an
application to the Court of Appeal on 3 April 2014 to extend time for appeal. In his judgment
delivered 3 April 2014 the Lord Chief Justice reviewed the history of the proceedings to date,
including the plaintiffs dissatisfaction with his legal team in the substantive judicial review
hearing on 31 May 2012, and his complaints to the Bar Council’s professional Conduct
Committee which did not accept that any complaint was made out against any of the counsel.
Extension of time was refused, the Lord Chief Justice at [9] concluding:

“ .... But as I have said there is not material that we can see in terms of the
submissions which were made to the various courts or the material which has been
advanced by Mr Walsh which indicates that counsel on his behalf has done anything
other than present a perfectly, proper, professional approach to what was a difficult
case for counsel and a difficult personal case for Mr Walsh and we recognise that. ”

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An application for leave to appeal to the Supreme Court was likewise refused. Thereafter the
plaintiff again requested the Department to reconsider its decision with respect to
compensation and that was finally refused on 9 May 2013. That final decision was not
challenged by the plaintiff and in particular he did not seek to challenge it by way of a further
judicial review.

Order 18, rule 19(1) of the Rules of the Court of Judicature 1980

[9] Order 18, rule 19 (1) provides:

“The court may at any stage of the proceedings order to be struck out or amended any
pleading or the endorsement of any writ in the action, or anything in any pleading or in the
endorsement, on the ground that-
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court,
and may order that the action may be stayed or dismissed or judgment to be entered
accordingly, as the case may be.”

[10] These principles, which represent a well-trodden path, are summarised at paragraphs
18/19/16 to 18/19/36 of the 1999 edition of The Supreme Court Practice (The “White Book”),
but it is important to note that the court must adopt a particular approach to applications
pursuant to Order 18, rule 19 (1) (a) where the relevant test is helpfully set out by BJAC
Valentine at paragraph 11.179 of Civil proceedings The Supreme Court:

“Ground (a) must be determined on the face of the pleading without evidence (Ord.
18, rule 19(2)), and the cause pleaded must be unarguable or almost incontestably
bad: Lonrho v Fayed [1992] 1 AC 448. All the averments in the statement of claim
must be assumed to be true. A pleading should only be struck out in plain and obvious
cases, where the cause of action is obviously and almost incontestably bad. But if after
argument the court is persuaded that no matter what (within the bounds of pleading)
the actual facts, the claim is bound to fail in law, the court should not hesitate to strike
it out: O’Dwyer v Chief Constable [1997] NI 403 (CA).”

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[11] In Rush v Police Service of Northern Ireland [201 1] NIQB 28, Gillen J said:

“O’Dwyer’s case is authority also for the proposition that it is a “well settled
principle that the summary procedure for striking out pleadings is to be used in plain
and obvious case. ” The matter must be inarguable or almost incontestably bad (see
Lonhro plc v Fayed [1990] 2 QBD 479)

[12] This means that so far as the application pursuant to Order 18, rule 19(1) (a), to strike
out pleadings as disclosing no reasonable cause of action is concerned, the court must deal
with it on the face of the pleadings alone and without any reference to affidavit or other
evidence. Such evidence can however be considered in dealing with applications pursuant to
the remaining provisions of Order 18 rule (1) including Order 18 rule 19 (1) (b) scandalous,
frivolous and vexatious.

[13] The defendants’ summonses seeks strike out on the basis that the plaintiffs pleading
is scandalous, frivolous or vexatious, simply following the words in Order 18 rule 19 (1) (b)
which links the three. However, they are not identical and different considerations apply to
scandalous pleadings as opposed to those which are alleged to be frivolous or vexatious. The
court has a general jurisdiction to expunge scandalous material from any record or
proceeding. Allegations of dishonesty will not necessarily be considered scandalous if
relevant to the issues in the case and the real question is whether the matter alleged to be
scandalous would be admissible in evidence to show the truth of any allegation in the
pleading (Christie v Christie [1873] L.R. 8 Ch.App. 499). The defendants did not draw my
attention to such material and I can see nothing obviously scandalous in the pleading.

[14] “Frivolous and vexatious” on the other hand concerns cases which are obviously
frivolous or vexatious or obviously unsustainable and are essentially linked to the concept of
abuse of process, for example where the case is so clearly frivolous that to put it forward
would be an abuse of the process of the court (Young v Holloway [1895] P.87). In practical
terms, in an application to strike out a pleading as disclosing no reasonable cause of action the
court may only consider the pleading, but with allegedly vexatious or frivolous pleading it
may consider affidavit evidence, for example showing that it was really an attempt to re¬
litigate an issue. Another example is where the case pleaded, when considered in the light of

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the surrounding circumstances set out in affidavit evidence: and allowing for the limitations of
affidavit evidence and the caution which a court must exercise when arriving at decisions
whether or not a pleading should be struck out on the basis of it: is obviously unsustainable or
“hopeless” (Domer v Gulf Oil (Great Britain) [1975] 119 S.J.).

The First and Second Defendants’ Application

[15] The main thrust of the first defendant’s application is, in the first place, that he has
been improperly sued in his personal capacity when at all times he was acting as Minister of
Justice and the proper defendant is the Department of Justice. The second defendant’s starting
point is that as independent counsel briefed by the Department he owes no duty of care to the
plaintiff and no action in tort can arise against him. As regards both these defendants they
assert that the pleadings disclose no reasonable cause of action against either of them and
furthermore that they are frivolous and vexatious in that they are an attempt to re-litigate
points that have already been litigated in other proceedings and so far as the first defendant is
concerned ought to have been raised by judicial review or appeal. They are also frivolous and
vexatious because the pleadings are unintelligible. Furthermore the proceedings are an abuse
of process because, inter alia, they represent a collateral attack on previous decisions of the
court.

[16] Considering these submissions in more detail, and beginning with the argument that
the first defendant is wrongly sued in his personal capacity, this in no way hampered the first
defendant at hearing because other than this point, counsel simply dealt with the application
as if it was the Department of Justice which is sued. That said, I am satisfied that counsel is
correct when he argues that the Minister ought not to have been sued personally and that any
cause of action there may be more properly lies at the feet of his department, because at all
relevant times he was acting as minister. There is nothing to demonstrate that at any time he
stepped outside that role as in Misfeasance in Public Office or Deceit (although the latter is
alleged against the Department’s Counsel the second Defendant, or that the Department was
denying that it was vicariously liable for any tort committed by him (See Clerk & Lindsell on
Torts, 21st edition 14-122 and Adams v The law Society of England and Wales [2012]
EWHC 980 at paragraph 161 where Foskett J states: “. .. I would have thought it only when
absolutely necessary that the individuals would have to be made defendants in their own right.
In the normal course of events, the proceedings can be launched against the institution ..

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All reference in Section 133 of the 1988 Act enabling the payment of compensation in cases
of miscarriage of justice, are to the Secretary of State where section 6A specifically says: “any
reference to the Secretary of State is to be read as a reference to the Department of Justice in
Northern Ireland.”, and it was the decision of that Department refusing compensation which
was the subject of the Judicial Review before Weatherup J on 31 May 2012. Setting aside for
the moment the question whether suing the minister in his personal capacity is frivolous and
vexatious, in the event that the action against the first defendant otherwise survives this
application, it would be necessary for the plaintiff to apply to amend to add or substitute in
place of the Minister, the Department of Justice itself, the outcome of which application
would be far from a foregone conclusion.

[17] So far as the second defendant is concerned the primary argument is that as
independent counsel retained by the Department, he owed no duty of care to the plaintiff, an
opposing party in the action. As Clerk & Linsell 21st edition succinctly observes at 10-111,
quoting Lord Goff in White v Jones [1995]2 A.C. 207: “Prima facie a lawyer’s professional
duty is owed to his client alone”. At paragraphs 10-111 to 117 there is references to various
exceptions to the general rule which have arisen for example in probate cases, or claims by
third parties. These cases, none of which are germane to the present, cases all arise in
negligence and the plaintiff, albeit reluctantly, conceded at hearing that the second defendant
owed him no such duty of care, and certainly none is pleaded. Insofar as breach of section 6
or 7 of the Human Rights Act 1998 is concerned, the second defendant is not a public
authority, so no duty arises there either. That of course does not end the matter because the
plaintiff argues that the behaviour of the second defendant constituted the tort of Deceit
(sometimes referred to a civil fraud), which like misfeasance in public office does not require
a duty of care. I will return to this when I am considering the plaintiffs submissions in more
detail below.

[18] Both first and second defendants argue that the plaintiffs action is vexatious and
frivolous, for a number of reasons. The first is that it is in essence an attempt to re-litigate
issues which have already been litigated, or ought to have been litigated, in the judicial
review. I think that so far as the second defendant is concerned, which as I have said will
essentially come down to the question of deceit, this is less obviously pertinent, but the case
against the first defendant is more obviously linked to the previous proceedings and the
refusal by the department to pay compensation, in the sense that it raises the issues which

9
these defendants say have already been dealt with, or ought to have been dealt with, at the
judicial review, and constitute an attempt to challenge or re-open the decision of Weatherup J.
Indeed, as counsel points out, the plaintiffs writ includes a claim for “a judgment in error by
Mr Justice Weatherup on 1 8th June 2012 to be declared a nullity ...” This of course represents
an already trodden path in the history of these proceedings, in particular the plaintiffs
application for a Writ of Coran Nobis, which was also dismissed by Weatherup J on 26
September 2012, and the unsuccessful application to extend time for appeal which was
refused by the Court of Appeal in April 2014. 1 will return in due course to the plaintiffs
argument that you cannot re-litigate what has not previously been litigated because the points
were not argued at the judicial review, but it seem to me that this is an argument which relates
to the plaintiffs own legal team at the Judicial review in May 2012 rather than the
Department being judicially reviewed and even less so its counsel.

[19] Whilst most of the case law referred to by counsel (see in particular Bhamjee v
Forsick [2001] 1 WLR) relates to vexatious litigation and civil restraint orders, in the context
of the early days of the Civil Procedure Rules in England and Wales, the parallels with cases
such as the present one are clear. The comments of Lord Bingham CJ in Attorney-General v
Barker [2000] 1 FLR 759 are apt:

“The hallmark of a vexatious proceeding is in my judgment that it has little or no

basis in law (or at least no discernible basis); that whatever the intention of the
proceeding may be, its effect is to subject the defendant to inconvenience, harassment
and expense out of all proportion to any gain likely to accrue to the claimant; and that
it involves an abuse of the process of the court, meaning by that a use of the court
process for a purpose or in a way which is significantly different from the ordinary
and proper use of the court process. ”

The increase in the number of such cases places an increasing burden on the courts which is
why the overriding objective set out at Order 1 rule 1A of the Rules requires courts when
exercising powers conferred by the rules or interpreting them, must have regard, inter alia, to
ensure that an appropriate share of court resources are allocated to a particular case. This of
course is all relevant to these defendants’ submission that what lies at the heart of the
plaintiffs case is an intention to re-open previous decisions of the courts, or raise issues
which ought to have been dealt with at the time of those previous proceedings.

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[20] These defendants also argue that the proceedings are vexatious and frivolous because
the pleadings are unintelligible. They cite the judgment of Black L.J. in the 1953 case of
Mulgrew v O’Brien [1953] NI 10. While that decision remains good law it must be applied in
the light of the different times and environment in which the courts now operate, and
particularly in the massive increase in incidence of personal representation by parties in
proceedings even to the highest level. The purpose of the second day of hearing was to
enable, and require, the plaintiff to crystallise his case, which whilst I make no comment at
this stage on the strength of the arguments in law, he did admirably. I have no doubt that
should his action otherwise be permitted to proceed, by careful case management, his
pleadings could be amended to reflect the clarity of his arguments at that hearing.

[21] These defendants also submit that the proceedings should be struck out because they
are an abuse of the process of the court. There is of course significant overlap between the
concepts of vexatious and frivolous and abuse of process, and generally proceedings which
are deemed to be the one will also be the other. However, these defendants specifically focus
on what they say is abuse of process by “collateral attack” on previous decisions of the courts,
in particular that by Weatherup J. This issued is succinctly covered in Clerk & Lindsell, 21st
edition at 10-39

“Proceedings against any professional are liable to be struck out if they involve a
collateral attack on the decision of a court of competent jurisdiction. This is mainly
important in the criminal context, in which (for example) an action against a solicitor
may be struck out where it amounts in effect to a collateral attempt to impugn the
result of prior criminal proceedings. So too with prior civil proceedings: there may
be an impermissible collateral attack if the action aims to upset a previous
unimpeachable finding of fact, or if it trenches on court proceedings privilege, as with
a suit against a court appointed expert charged with the valuation of property the
subject of matrimonial proceedings. Nevertheless the doctrine is not as strictly
applied in this case, since the bypassing of appeal as a means of redress is not as
serious a problem. Only if the proceedings are “manifestly unfair ” to the defendant,
or there is some other compelling public policy, will a strike-out be appropriate; and
even here it may be more apposite to invoke the doctrine of abuse of process as a
means of preventing re-argument of matters which were, or should have been, raised
in previous proceedings.”

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And at 10-124

An action for negligence against a lawyer may, like any other action, be struck out if it
amounts to an impermissible collateral challenge to the previous decision of a court of
competent jurisdiction. Thus in Smith v Linskills a convicted burglar attempted to sue
his solicitor for negligence, alleging that had his defence been properly conducted he
would have been acquitted. The Court of Appeal struck out the action as an abuse of
process: unless compelling new evidence was produced which “entirely change[d] the
aspect of the case ”, it was contrary to public policy to allow the conviction to be
effectively re-litigated in the civil courts. A similar principle may apply to attempts to
impugn a final judgment in contested civil proceedings, though here the jurisdiction is
much more sparingly exercised. But the limits of this rule must be noted. It applies
only to proceedings where the claimant has had a reasonable opportunity to present
his case, and not (for example) to cases where the defendants’ negligence deprives the
claimant of the chance of a successful appeal, or of the services of a suitable expert to
support his story. Furthermore, the bar on collateral attack is much less stringently
applied in the case of consent orders, even where those orders embody a settlement
which has by law to be approved by the court. Although in such a case subsequent
proceedings in negligence are prima facie abusive, they will normally be allowed to
proceed if (a) good reason is shown why steps were not taken to challenge the original
decision by appeal or otherwise; and (b) the claimant has been deprived of either a
reasonable opportunity to appreciate that substantially better terms could have been
obtained, or has been placed in the position of having to accept a settlement
significantly less advantageous than he should have had.

[22] These defendants submit that the plaintiff’s real purpose in the present case is in
reality an attempt to further perpetuate the proceedings and challenge the earlier decisions of
the Judicial review Court and also the Court of Appeal, as such represents an abuse of
process. Whilst accepting that the principles in relation to collateral challenge are not as
stringently applied in civil cases, nevertheless in the present case, where the plaintiff’s issues
have been raised and considered and rejected, it is an abuse of process to allow him to
continue to do so by these present proceedings.

The Third Defendant’s Application

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[23] Sensibly avoiding duplication counsel for the third defendant adopted the arguments
of the other defendants. He noted that as with Mr McGleenan, Ms Quinlivan is independent
counsel and is not a public authority for the purposes of proceedings under the Human Rights
Act. He emphasised the decision of the Court of Appeal on 3 April 2014, which in
considering the entire history of the proceedings including the plaintiffs dissatisfaction with
this defendant, with the conclusion already quoted at [8] above. Referring to the writ of
summons (which has since been amended) he notes the plaintiffs reliance upon the Fraud Act
2006 which of course is a criminal law statute conferring no civil cause of action, and the
alleged breach of professional standards which again confers no civil cause of action.

[24] The main thrust of this defendant’s submission was to explain precisely what
happened at the hearing of the judicial review and why. Weatherup J had directed that the
grounds of application be amended to add: “The DoJ’s decision of 5 July 2011 is not in
accordance with the judgment of the Supreme Court in McCartney and MacDermott’s
Application [22011] UKSC 18 in that new facts undermined the evidence against the
applicant so that no conviction could have been based on the evidence and a miscarriage of
justice had occurred.” The purpose of this amendment was to focus on the question whether
the Minister had made his decision refusing compensation in accordance with the judgment of
the Supreme Court in McCartney and MacDermott. Whether the plaintiffs case was advanced
as a category 1 or category 2 did not matter as both attracted compensation. In the event the
judge concluded that the decision had not been made in accordance with McCartney and
MacDermott and referred the case back to the Minister to re-consider. Therefore the judicial
review was successful. The plaintiffs difficulty with this position is that the point which was
argued did not cover all that he wanted to be argued, so that his case was, to use his term,
“downsized”. However, counsel was obliged to deal with the issue which was raised by the
court, which she did, successfully. Of course when the Minister did reconsider his refusal in
accordance with McCartney and MacDermott he came to the same conclusion, because the
basis on which the Court of Appeal had quashed the conviction, upon which the section 133
application was based, compelled him to do so. The main thrust of his complaint against his
legal team is therefore not the further refusal of compensation but the downsizing of the case.

[25] After the Judicial review hearing on 3 1 May 2012, concerned at what had occurred but
reluctant to write to Weatherup J who had reserved judgment, wrote instead to the Lord Chief

13
Justice’s Office who referred to mater to the third defendant. She responded by way of a
detailed letter dated 11 June 2012 addressed to the fifth defendant Mr Winters but also made
available to the Bar Council’s Professional Conduct Committee and the plaintiff (See
Plaintiffs core bundle at page 65). In it the third defendant set out her position on the issues
raised by the plaintiff along the lines set out in the preceding paragraph, including in
particular the following points. Firstly, her consistent advice that the wider issues the plaintiff
wanted raised should not be pursed in a judicial review of a decision to refuse compensation.
Secondly, these wider complaints involved disputed issues of fact more appropriately dealt
with in a civil action. Thirdly, her belief that the plaintiffs case did not satisfy the threshold
for category 1 but rather was category 2 and the essential dispute in the judicial review was
whether the case was a category 2 or category 3. She denied ever representing his case to the
plaintiff as category 1. Fourthly, as to the wider issues set out in the amended statement, leave
was never obtained to pursue these issues and for the reasons already explained the third
defendant could not raise them at the hearing of the judicial review.

The Fourth and Fifth Defendant’s Application

[26] Again avoiding duplication counsel for the fourth and fifth defendants adopted the
arguments of the other defendants. He noted that as with the second and third defendants (Mr
McGleenan and Ms Quinlivan), the fourth defendant (Mr Devine) is independent counsel and
the fifth defendant (Mr Winters) a solicitor in private practice, neither being a public authority
for the purposes of proceedings under the Human Rights Act. He repeats the point that, even
having regard to the intelligibility of the amended statement of claim, the plaintiffs real
purpose is to have the judgment of Wetherup J set aside, and as such is an abuse of process.
So far as these defendant’s concerned, although the plaintiff does not specifically alleged
professional negligence (he does refer to “professional misconduct” which is not a cause of
action), it appears that this is what he is alleging. He does so in such a way that the issues he
seeks to raise are more like complaints as opposed to causes of action. His allegations of fraud
are not clearly pleaded and he makes references to the Fraud Act 2006 (a criminal statute)
rather than to the tort of deceit. As a result therefore the pleadings appear to disclose no
reasonable cause of action. Insofar as he complains about the failure of his legal team to raise
the wider issues, these defendants submit that: (a) he knew the case being made and
acquiesced in it; (b) even if he had complaints about points not being made he had subsequent
opportunities to do so himself at the Coram Nobis application and before the Court of Appeal,

14
when those points were discounted, and having regard to the points properly before the court
in the Judicial Review, the outcome for the plaintiff was successful in that the first defendant
was ordered to reconsider its decision with respect to compensation in light of McCartney and
MacDermott.

[27] I turn then to the plaintiffs submissions in response at the hearing on 10 April 2017.
As previously noted in advance of this hearing the plaintiff had served an amended writ of
summons with detailed particulars, and had issued a summons for leave to amend, to which
the defendants did not object although not formally consenting. The purpose of the hearing
was to enable the plaintiff, with the benefit of having heard the defendants’ submissions on
the first day, and by reference to the amended writ and pleadings, to focus his arguments by
way of rebuttal. Whilst there were themes and points applicable to all defendants, he dealt
with each in tum. I do not propose rehearsing each argument verbatim but to address the core
points and the defendants’ response by written submission.

The Plaintiffs Submissions: First and Second Defendants

[28] The plaintiffs starting point, applicable to all defendants, was the fact that only the
section 133 point was argued at the judicial review hearing on 31 May 2012, where he had not
consented to the other grounds being dropped. He said that he could not raise those arguments
in any subsequent judicial review because he would have been met with the argument that he
ought to have argued them on 31 May2012. As counsel for these defendant’s points out that
of course is not correct. If the plaintiff had, for example, sought to judicially review the final
decision of the first defendant on 9 May 13 refusing compensation, in fact the only operable
decision still remaining which might be the subject of a judicial review, then subject to leave
he could have raised the wider issues. It is not for this court to speculate on what the outcome
would have been had he taken that route, simply to say that the plaintiff is not correct when he
says that the failure to argue the points on 31 May 2012 prevented him absolutely from
attempting to do so in subsequent judicial review proceedings.

[29] The plaintiff then embarked upon an analysis of issues arising from the original trial,
the judgment of the trial judge, including: the lack of forensic evidence and how that was
dealt with at subsequent Courts of Appeal; evidence about proximity to the scene of a well-
known terrorist, and changes in the evidence of some of the soldiers involved. The purpose of

15
this analysis was two-fold. Firstly, with respect to the first defendant, the plaintiff argued that
the second defendant’s failure to draw these matters to the attention of Weatherup J at the
judicial review hearing was in effect to mislead him. This forms the basis for the claim that
the second defendant (Mr McGleenan) had been guilty of breach of the Bar Code of Conduct
(duty of honesty to the court) and ultimately to a claim of fraud. The plaintiff concedes that
the second defendant owed him no duty of care so it seems clear that the only case which can
be made against him is in fraud, or as it more properly should be described in the context of
civil proceedings, the tort of Deceit.

[30] The 21 st edition of Clerk and Lindsell on Torts at paragraph 18-0 defines the modern
tort of Deceit in these terms:

“The tort involves a perfectly general principle: where a defendant makes a false
representation, knowing it to be untrue, or being reckless as to whether it is true, and
intends that the claimant should act in reliance on it, then in so far as the latter does so
and suffers loss the defendant is liable.”

Whilst the normal standard of proof in civil cases applies, in practice more convincing
evidence is required than would be in other civil cases (18-04).

[3 1 ] Clerk and Lindsell goes on to consider the four general principles upon which the tort
is based The first requirement is that there be a misrepresentation of present fact (18-05)
which can include misleading conduct or can be express or implied. The second concerns the
state of mind of the person making the misrepresentation who must do so knowingly, without
belief in its truth, or recklessly or carelessly (1 8-19). The third requirement is that the
misrepresentation must be intended to be acted upon by the claimant, in other words with the
intention of deceiving him (18-30). This is where the plaintiffs argument falls down because
even if it was correct that Mr McGleenan knowingly or recklessly withheld information from
the court: where careful reading of Weatherup J’s judgment shows that he was aware of, and
took into account, the matters the plaintiff says were withheld, any wrongdoing by the second
defendant was done to the court and no misrepresentation was made to the plaintiff with the
intention that he act upon it. The fourth principle is that the claimant shows that he was
influenced by the misrepresentation in that he acted in reliance upon it (18-34). As there was
no misrepresentation made by the second defendant that could have influenced the plaintiff,

16
this simply does not arise. The plaintiff cites the cases of Derry v Peek (1889) 14 App. Cas.
337 and Myers v Elman [1940] AC 282, but counsel correctly distinguishes them and I do not
propose to consider them further. Therefore, the plaintiffs claim against the second defendant
in deceit is inarguable and no other causes of action being raised against him, so far as he is
concerned the plaintiffs claim must be dismissed.

[32] The second theme flowing from the plaintiffs analysis of the issues arising from the
original trial and how they were dealt with in subsequent hearings before the Court of Appeal,
concerns the first defendant. His first point is that the first defendant could never have reached
a decision that the plaintiff was demonstrably innocent because he did not consider the full
evidence, (he cites Anthony on Judicial review at paragraph 4.29). He widens this argument
to encompass the other defendants who ought to have brought the evidence to the first
defendant’s attention by arguing all the points which ought to have been argued at the hearing
on 31 may 2012. He develops the argument further with respect to the first defendant by
reliance upon section 46 of the Justice (Northern Ireland) Act 2002 and the minister’s power
of referral to the Criminal Justice Inspectorate. By failing to do so, the plaintiff said, the first
defendant failed to act when he ought to have (which of course can be judicially reviewed -
see Anthony paragraph 1 .04), thereby effectively denying himself the opportunity to have the
full evidence before him when he considered the plaintiffs request for compensation.
However, this argument is entirely misconceived because it is clear from section 47 (6) (a)
that the Chief Inspector cannot investigate individual cases, and any apparent reference to it
doing so on its website concerns the power of the minister to ask the Chief Inspector to
conduct certain work, which does not relate to investigation of an individual case.

[33] But there is a further weakness in the plaintiffs argument based on the evidence at
trial. Careful reading of the various judgments: not only of Weatherup J in finding for the
plaintiff in the judicial review (18.06.12) and on dismissing the Coram Nobis application
(30.10.12), but also that of the Lord Chief Justice (03.04.14): shows that they were aware of
the evidence which the plaintiff says they were unaware of, and took it into account in
reaching their decisions. It is therefore impossible to conclude other than that what the
plaintiff was doing in his analysis of the original trial, and the subsequent hearings, was yet
another attempt to re-litigate matters which had already been heard and decided upon.

17
[34] In his closing written submission counsel for the first and second defendants deals
with other issues raised by the plaintiff including implied admission by the defendants in their
pleading, that they had mislead the court. On reading the impugned pleading in full I am
satisfied that there is no substance to this argument. It is also noteworthy when considering
the plaintiffs submissions against the first and second defendants overall, the plaintiff did not
seek to rebut the first defendant’s submission that the minister is wrongly sued in in personal
capacity, despite seeing the defendants’ skeleton argument and hearing their submissions on
the point at the first hearing. He simply did not address the point. Therefore, I have to
conclude that his submissions have failed to persuade this court that these proceedings: are
not an abuse of the process of the court because they seek to re-litigate issues which have
already been dealt with; represent a collateral challenge to the decision of Weatherup J on 12
June 2012 and are scandalous, frivolous and vexatious; and in the case of deceit are simply
inarguable and incontestably bad and therefore disclose no reasonable cause of action. Having
already struck out the claim against the second defendant, I must also strike out the claim
against the first defendant as well.

The Plaintiffs Submissions: Third, Fourth and Fifth Defendants

[35] Whilst there were some differences in the submissions made by the plaintiff against
these three defendants, broadly speaking the themes were the same and he dealt with them
together. He began with a detailed analysis of the email correspondence between himself and
his legal team, in particular the fourth and fifth defendants, between 15 November 201 1 and
the end of February 2012, to demonstrate that at that stage they were all agreed on the issues
to be raised, which went beyond the section 133 compensation issue, the sole issue dealt with
at the hearing before Weatherup J on 31 May 2012. There is then a gap in the email chain
until just immediately before the hearing when the plaintiff raised concerns that the other
grounds were not to be argued, something he said he had not consented to. There was a
telephone conversation at this point between him and the fourth defendant which apparently
abruptly stopped, the plaintiff explaining that at the time he was waiting at the school gates
and had to go. His core points were that: (a) he was not properly consulted about the
“narrowing of the issues” as he describes it, without his consent, and (b) the third fourth and
fifth defendants downgraded his section 133 compensation claim from McCartney and
MacDermott category 1 to category 2, where he saw a category 1 determination as crucial if
he was to establish his “demonstrable innocence”.

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[36] By reference to emails the plaintiff then goes on to describe what occurred after the
hearing on 31 May 2012, including his letter to the Lord Chief Justice and the third
defendant’s detailed letter to the fifth defendant which was shared with him and also the Bar
Misconduct Committee. Thereafter he sent an email to the fifth defendant (19.07.12) with
regard to his instructions to the third defendant and the fifth defendant’s reply (20.07.12)
confirming that he had instructed the third defendant to take the plaintiff’s instructions. He
then moved to the longer term post hearing position, and an email from the fifth defendant on
29 June 2013, the first contact from July 2012, by which time there had been the further
hearing before Weatherup J in the misconceived Coram Nobis application and appearances in
the Court of Appeal when extension of time to appeal Weatherup J both in the judicial review
and the Coram Nobis applications was refused by the Lord Chief Justice. In that email the
fifth defendant confirmed that he had checked with counsel who were adamant that the
plaintiff had been kept informed, was aware of what was happening, and that nothing had
been done behind his back. At hearing the plaintiff queried why it had taken the fifth
defendant a year to clarify this. I will return to the defendants’ response to in due course but
this, I believe, highlights the difficulty with the approach adopted by the plaintiff and the
reference to selected emails rather than a consideration of the correspondence as a whole. For
example, he refers to nothing which happened between February 2012 and the period
immediately before the judicial review hearing on 31 May 2012, which is key to the question
whether or not he was aware that only the section 1 33 compensation issues in light of
McCartney and MacDermott, added at the direction of the judge, would be argued.

[37] Aside from the argument that his legal team had acted without his informed consent
by downgrading his case from a category 1 to a category 2 and in putting forward only the
section 1 33 point, and not the wider issues he wished to have ventilated, the plaintiff sought to
argue that this demonstrated a deliberate intention by his legal team to deceive him. In his
amended writ of summons he pleaded that they had: “1. Used deceit and misrepresentation
preventing or denying the claimant access to justice contrary to Bristol and West Building
Society v Matthew (1998) Chancery 1 at 18, wherein a fiduciary must not act “without the
informed consent of his principle”; and “2. If the 3rd and 4th defendants do not owe the
Claimant the same fiduciary duty then they are liable for breach of trust in dishonest
assistance of the 5th defendant.” Against the 3rd defendant separately he alleges that she
falsely claimed that Weatherup J without hearing any evidence had already ruled out the

19
inclusion of category 1 evidence; and misrepresented Weatherup J’s directions on 15th
November 2011 that section 133 of the Criminal Justice Act 1988 be added to the other
grounds for judicial review.” I will consider the defendants’ response to this below, but in so
far at this constitutes a claim in the tort of deceit, and returning to the four principles set out at
[31] above, they are simply not satisfied and what is alleged, even if proven, does not
constitute the tort of Deceit. He was not influenced by what the defendants were saying or
doing in May 2012 so as to act in a way which was detrimental, because this was not a case of
him being induced to do something but rather, at its height, a difference in view as between
him and his legal team, as to the parameters of the judicial review. As with the first and
second defendants, no amendment of the pleadings could cure what is a fatal defect in this
aspect of the plaintiffs case, namely that what happened was simply not deceit.

[38] As to the allegation that the third defendant dishonestly assisted the fifth
defendant,that appears to refer to alleged breach of fiduciary duty in the form of accessory
liability, an equitable law concept applicable where a person dishonestly assists another
person who does owe a fiduciary duty to breach that duty, thus rendering themselves
personally liable to the person suffering because of the breach. It is with respect a bald
allegation without any attempt to provide particulars of the assistance rendered, the breach
assisted or the loss resulting.

[39] I turn then to the defendants submissions in response to the plaintiffs arguments at
hearing on 10 April 2017. The third defendant deals with the fact that the solicitor’s statutory
framework does not apply to her as senior counsel; furthermore she is not a public authority
for the purposes of the Human Rights Act and of course Deceit. These are all issues which I
have already determined in her favour. She rebuts the plaintiffs allegation that none of his
grounds for judicial review were argued pointing out that the amendment to the Order 53
statement directed by Weatherup J focused the hearing on the one issue which could
appropriately be addressed by judicial review, namely: “The Department of Justice’s decision
of 5 July 2011 is not in accordance with the judgment of the Supreme Court in McCartney
and McDermott’s Application [2011] UKSC 18 in that new facts undermined the evidence
against the applicant so that no conviction could have been based on that evidence and a
miscarriage of justice had occurred”. That point was argued successfully in that the
application for compensation was referred back to the minister for re-consideration in the light

20
of McCartney and Mac Dermott. Leave had not been granted to argue any other point,
something which the plaintiff was aware of and acquiesced in.

[40] As regards the fourth and fifth defendants, and in particular the allegation made
against all three, that they acted without the plaintiffs informed consent, They note the point
to which I have already alluded, namely the plaintiffs reliance on emails from late November
201 1 up to the end of February 2012, the date of the amended document setting out all the
arguments which the plaintiff wanted argued. He then jumps forward 29 May, two days
before the judicial review hearing. He ignored what happened in between, most crucially at
review hearings in late February and March 2012. Leave to argue the wider issues raised by
the plaintiff could not be granted (and was therefore not sought) for a number of reasons.
Firstly, the parties he sought to criticise were not parties to the judicial review. Secondly, the
judicial review court to which the case had been remitted by the Divisional Court, lacked
jurisdiction to deal with criminal matters. Thirdly, as the allegations were denied it would
have been necessary for the court to hear contested oral evidence, something inappropriate in
judicial review proceedings. Fourthly, he had an alternative remedy in the civil action for
which he had a legal aid certificate to sue the parties concerned.

[41] In opening the email correspondence the plaintiff did not refer to the email dated 24
May 2012, a week before the judicial review hearing, from the fourth defendant. It is worth
quoting:

“We 've always indicated that we would keep you abreast of all developments and
ensure maximum transparency - 1 genuinely think we have done that.
The court 's decision to remit the case to the judicial review/admin court from the
divisional court severely restricts the type of arguments we can advance because we
cannot now deal with ‘criminal cause or matters ’ which is effectively what you want to
level against david ford and pps etc.
This is why, I thought, we had agreed on the last occasion that it was perhaps a
positive development that the court allowed us to keep our powder dry on those issues
to aim for the 'big ’ money in a conventional civil action. I went through at great
length with you how judicial review is a remedy of last resort and that there was a
danger that, if you persisted with insisting that they adjudicated on this, then they

21
 would deal with it in a broad brush approach and this would effectively determine
your action and hamper your later efforts. ”

This paints a very different picture of the defendants’ management of the case from that
portrayed by the plaintiff, as does a further email from the fourth defendant on 28 May 2012
inviting the plaintiff to a consultation. The plaintiff at no point denies receiving these emails,
the content of which is entirely consistent with the third defendant when she asserts in her
letter of 11 June 2012. Consequently, it is difficult to see how the plaintiff can sustain an
argument based on a failure to keep him informed or acting without his informed consent,
against any defendant. The allegations that he had not been kept properly informed by his
legal team formed part of his application to the court of appeal to extend time to appeal.
However as the Lord Chief Justice observed in his ruling dated 03.04.2014 refusing extension
of time:
“[9] But as I have said there is not material that we can see in terms of the
submissions which were made to the various courts or the material which has been
advanced by Mr Walsh which indicates that counsel on his behalf has done anything
other than present a perfectly, proper, professional approach to what was a difficult
case for counsel and undoubtedly a difficult personal case for Mr Walsh and we
recognise that. ”

Aside from any other issue, this of course means that the plaintiff has already litigated the
point.

[42] As is recognised by the Lord Chief Justice in the foregoing, the circumstances of this
case are most unfortunate in that the plaintiff has dedicated his life since his release from
prison in failed attempts to correct what he understandably sees as a miscarriage of justice,
with the aim overriding all other motivation of establishing his innocence. He initially did this
through the criminal process eventually succeeding in having his conviction quashed by the
court of appeal on 16 March 2010. However, paradoxically it was that victory which
guaranteed that his campaign would fail because of the grounds upon which the conviction
was quashed, the final conclusion to which I have quoted at [5] above. This in turn led
ultimately to a refusal of section 133 compensation because those grounds for quashing the
conviction compelled the minister to determine that this was a McCartney and MacDermott

22
category 3 case as opposed to categories 1 or 2, either of which would have resulted in
compensation.

[43] It seems to me that the plaintiffs campaign, despite is undoubted legal learning, has
been misconceived from the outset, in that he has sought to use judicial review proceedings to
demonstrate innocence. This could never happen because the question of guilt or innocence is
decided in the criminal courts against the background of our most fundamental principle of
law that a man is deemed innocent until he is proven guilty. There is no verdict of innocence
available in a common law court. As Lord Judge observed at [250] in McCartney and
MacDermott, counsel:

“ highlighted the absence of the word 'innocent' from section 133. The omission
reflects not only the autonomous concept of ‘miscarriage of justice but more
significantly, the absence of an ‘innocent ’ verdict in the criminal justice process. The
defendant is either proved to be guilty of the crime alleged, or he is entitled to a ‘not
guilty ’ verdict and acquittal. A verdict of ‘innocent’ is unknown

[44] Thus, a determination by the first defendant that the plaintiffs case was a category 1
case would not render the plaintiff any more innocent in the eyes of law than has already been
done when the Court of Appeal quashed his conviction. As noted by the Supreme Court in
McCartney v McDermott at [58]:

“The right to compensation depends upon a new or newly discovered fact showing
beyond reasonable doubt that a miscarriage of justice had occurred. Whatever the
precise meaning of ‘miscarriage of justice ’ the issue in the individual case will be
whether it was conclusively demonstrated by the new fact. The issue will not be
whether or not the claimant was in fact innocent.” (My emphasis.)

[45] It follows therefore that all the steps taken by the plaintiff with the clear ultimate aim
of establishing his innocence, could never succeed, no matter how many times, or before
whatever courts, he seeks to re-litigate these issues. He cannot succeed by judicial review to
demonstrate his innocence because that is not the function of a judicial review court. He had
legal aid to pursue a civil action against the police, prosecution service and ministry of justice
which had he pursued it as his legal team advised, would have had the possibility of

23
establishing liability against them, and would certainly have enabled the wider issues which
could not be argued at the judicial review, to be aired in court in the context of a claim for
damages based on civil liability, although it would not have produced a finding of innocence.
It is simply inescapable that his legal team, in the context of a judicial review application,
could never give him what he wants, namely a finding of innocence.

[46] Regretfully therefore, having considered the plaintiffs submissions, delivered at all
times in a courteous and thoughtful manner, in terms of both the court and defence counsel,
and the materials adduced by him, in the light of the defendants’ submissions, I must grant the
defendants the relief they seek, on the grounds upon which they are sought, striking out the
plaintiffs writ of summons and pleadings, and granting judgment to the defendants against
the plaintiff. I will reserve the question of costs and will hear the parties, on the issue of costs
only, at their convenience. I extend time for appeal until 30 June 2017.

24