“Mr Fitzgerald has been unrelentingly pertinacious in pursuit of what he believes to be his aunt’s best interests. Unhappily, his pursuit of that laudable endeavour has become obsessive and his desire to litigate (most of the time as a litigant in person) and to correspond with all and sundry has become compulsive. This obsessive compulsion is marked by the very large number of applications which Mr Fitzgerald has sought to make to the Court of Protection (at least 23 …) and by the enormous number of e-mails with which he has bombarded all and sundry since 2013.”
“In my judgment Mr Fitzgerald’s application is, in all its aspects, misconceived, devoid of factual merit, in major part legally groundless and totally without merit. His allegations against Ms Hughes are scurrilous, fatuous and should never have been made. His application for her committal is a farrago of nonsense.”
“… despite the vast amount of material Mr Fitzgerald has put before me, it is perfectly obvious that there is, as in other allegations he has made against her, no factual merit in these allegations against Ms Hughes, allegations which, like the others, are, in my judgment, scurrilous and fatuous and which should never have been made.
“Much of this position statement is irrelevant to anything I have to determine. It contains wild and scurrilous allegations against various people, including C, of “income tax fraud” and “criminal tax evasion”, of which, Mr Fitzgerald asserts, Ms Hughes had “almost certain knowledge”
“18 … Mr Fitzgerald is making allegations of the utmost seriousness – contempt, dishonesty and attempted fraud – against three different solicitors. These allegations, largely un-particularised and, so far as the material Mr Fitzgerald has chosen to put before me allows me to judge, entirely devoid of merit, are scurrilous. Their pursuit in the manner in which Mr Fitzgerald has chosen to proceed is the plainest possible abuse of process. 19 Mr Fitzgerald’s applications are devoid of merit. It is for others to judge whether my decision, as Mr Fitzgerald would have it, shows my unfitness for office or impacts adversely upon the reputation of either the Central Family Court or the Family Division. I shall continue to do my duty whatever insults Mr Fitzgerald may continue to throw at me.”
“May I remind you that it is alleged against you that you have deliberately mismanaged this case in order to inhibit proceedings in your court against Denzil Lush of the Court of Protection under the Human Rights Act.”
“I trust I do not have to request JCIO to investigate your email correspondence. Please now answer the substantive question.”
“As I have repeatedly made clear to you, I cannot give you advice.”
“Munby’s judgement was vitiated by improper consideration of untrue and unsubstantiated assertions raised against me by my ex-wife Catherine Akester in her divorce proceedings … In what is alleged to be an attempt to defend his position, Munby misrepresented proceedings in his court of16 March 2016 in reported Judgement of10 August 2016 … It is most unfortunate that Master [X] has chosen to jeopardise her judicial career by her improper and dishonest intervention in this process of reconsideration. I trust she will take the appropriate steps to rectify this.”
“… case-management of this particular assessment has been so seriously mishandled that the reputation of SCCO for the fair and honest dispensation of justice is now in question. … SCCO’s reputation now comes into question through the review of the file conducted … by … Master [X]. … Notwithstanding Master [X]’s own personal knowledge that original paper assessment and orders were unsustainable … she has now directed that they stand as binding on the parties. I regret to say there are some very serious questions as to Master [X]’s judicial integrity arising from her conduct in another ongoing detailed assessment in her court … I anticipate with sadness and regret that SCCO’s reputation may suffer in consequence. Please note this letter is copied to others concerned in Master [X]’s conduct.”
“You are guilty of the criminal offence of abuse or position as defined by Sec 4 ofFraud Act 2006 by:- 1) Ordering the destruction of my personal property on3 October 2016 2) Ordering me to vacate my own freehold property without power to do so with the intention of causing me serious financial loss 3) Upholding decisions of District Judge [Z] which you knew to be based on fabrication, thereby intending me to experience financial loss. You have no defence to these allegations which are all a matter of record in your court. The only outstanding issue in advance or your referral to CPS for criminal prosecution is your motivation for your wrongdoing. It is suggested that you were incited to your criminality by a desire to impede appeal and related allegations against a very senior judge, James Munby retiring President of Family Division and Court of Protection. I will be requesting these allegations be investigated.”
“My copies of my Appellant’s Notices were destroyed in October 2016 along with the entirety of my personal possessions, including my computers, my clothing, all my personal chattels, and confidential legal and financial documentation relating to my late aunt [A]. This criminal destruction resulted from the abuse of position by a circuit judge in Central London Family Court, [Judge Y], who makes herself prosecutable in the criminal courts in consequence. … Please note that it is alleged [Y’s] criminality may have been motivated by a desire to protect you in the very appeal process which you now question. If you choose to impede reconsideration any further, I will take this as confirmation of that allegation.”
“The continuation of detailed assessment of your wrong and unjust costs orders of 22 &24 March 2016 is listed in SCCO for 11 July … It is open to you to stay assessment in SCCO listed for next Wednesday, and also to stay execution of Master [X’s] presumptive and prejudicial interim costs order. As the revocation of your recited costs orders is now inevitable, you should do both. If assessment continues next Wednesday, I will construe this unjust and unfair development as supportive of the suggestion that you are the instigator of criminal wrongdoing by [Judge Y] and others. I should add that a review of your approach to Respondent's evidence since this case first came before you in 2013 shows you to have consistently ignored, disregarded or unfairly excluded any evidence in any way damaging to Applicant [C] and her multitudinous legal representatives. I believe the tragic case of my late aunt [A] will stand permanently to your indelible disgrace.”
“… please be so good as to notify SCCO immediately that hearing listed for this Wednesday 11 July should NOT take place, as the underlying Costs Orders are now certain to be set aside.”
“… I make clear that I do NOT, even if I have power to do so, notify SCCO that the hearing listed for this Wednesday 11 July should not take place. That must be a matter for SCCO.”
“A consequence of your pusillanimous decision not to intervene to stay tomorrow’s hearing in Family Court 46 is that this hearing will now be principally dedicated to [C]’s utterly preposterous claim for£57,000 worth of costs in detailed assessment. Not only is [C]’s and her legal representatives’ honesty and integrity totally discredited, but the issue of proportionality in Court of Protection costs remains to be determined by your successor. This is due to your own equally pusillanimous refusal to align Court of Protection Rules on costs with CPR Amendment. There are further important issues I should raise with you in advance of this hearing.”
“Now that it is established that you have known since 2016 that your wrong and unjust Costs Orders of 22 &24 March 2016 were under appeal, it is appropriate to remind you of the initial Grounds of Appeal against you. These are:- 1) You granted my appeal against SJ Lush's 2013 Costs Order but then proceeded to “exercise your discretion afresh” and re-imposed the identical Costs Order having both refused to consider and unfairly excluded all evidence relating to its original imposition 2) Court of Protection Rules permit you to make a Costs Order WITHIN Appeal Proceedings. They do NOT permit you to make a Costs Order against a successful Appellant AFTER his appeal has been allowed. 3) The “discretion” you “exercised” is granted by theLunacy Act 1890 .The Lunacy Act 1890 was repealed IN ENTIRETY by Sec 1 of theMental Health Act 1959 . The “discretion” you have claimed to have the power to “exercise” has not existed in English Law for over half a century. In any other judge this “reasoning” would be symptomatic of merely stupidity and unfitness for office. In your case, while it remains indicative of unfitness for office, there is no suggestion of stupidity, and other motives must be sought. The only “authority”
“Further to previous correspondence. It is now your duty to refer [C] and her former solicitor (previously of record to your court) [XX – see below] to the Attorney General for committal for contempt in the Court of Protection by falsifying Statement of Truth. I trust you will perform your judicial duty.”
“Munby originally confirmed he would reconsider his Costs Orders on being presented with new evidence in April 2017 … He reconfirmed it in March 2018, following the expiry of his unfairly imposed Extended Civil restraint Order on me … His reasons for making this confirmation will be fully set out to the Court of Appeal, if that should prove necessary. I do not believe they reflect the slightest credit on him.”
“Please find attached COP9 Application Notice that you set aside all orders made by you in the matter of my aunt [A] (COP No:95908524) due to your misrepresentation of proceedings in your court in Reported Judgement of10 August 2016 . In Reported Judgement you state that [C] did NOT accept that I was given no opportunity to address SJ Lush on costs on15 May 2013 (mistakenly stated to be28 May 2013 ). It is clear from the record of proceedings in your court that she DID, and you have misrepresented proceedings in your court in Judgement.”
“Thank you. I will consider the application (i) once it has been properly issued in the court office and (ii) when you supply a copy of the “evidence attached” referred to in your draft application notice.”
“You are again bombarding me with unsolicited emails, many, like this one, containing groundless and significantly inaccurate assertions. I shall, of course, respond appropriately to any request for information or observations from [SCCO], the Court of Appeal (Criminal Division) or the Court of Appeal (Civil Division), but I do not propose to respond to any of your emails. You must understand that silence on my part is not to be taken as agreement with anything you say. I make clear that: 1 All the orders I have made stand; none, so far as I am aware, has been set aside by the Court of Appeal. 2 There is no application currently before me. 3 I have not said (as you assert in your email of22 March 2018 (1228)) that I will reconsider my costs order. What I have said, as is clear from my email to you of20 April 2017 , is that “I will consider [your] application (i) once it has been properly issued in the court office and (ii) when you supply a copy of the “evidence attached” referred to in your draft application notice.”
“Munby’s orders of 22nd and24th March 2016 are already subject to application for permission to appeal … No determination on these applications for permission to appeal has yet been made …”
“I am astounded to discover that you have issued reported Judgement of21 November 2016 in Akester v. Fitzgerald EWHC 2961 (2016) (Fam). You have never had the courtesy to inform me of your Judgment pursuant to my application. I note you accept in your reported Judgement that your Costs Orders of 22 &24 March 2016 are under appeal. I note also that you rely entirely on the terms of your22 March 2016 ECRO to refuse any reconsideration of your costs orders. I note further that you were aware as of November 2016 of the allegation that your judgement relating to these costs orders had been vitiated by inappropriate consideration of allegations against me made to DJ [Z] in Central London Family Court. I trust that sufficient judicial integrity still remains to you to revoke your costs orders in the face of clear evidence that they were wrong and unjust.”
“Thank you for your Judgement attached received in the last few minutes. Full response will be made in due course.” ii) Secondly, the reference in that judgment (Akester v Fitzgerald[2016] EWHC 2961 (Fam) , para 2) to the outstanding appeals was factually accurate as at that date. As mentioned above, the applications for permission to appeal were refused on24 August 2017 . iii) Thirdly, I was of course aware (Akester v Fitzgerald[2016] EWHC 2961 (Fam) , para 8) of the allegation that my judgment in relation to the costs had been vitiated in the manner suggested by Mr Fitzgerald. I dealt with this in my judgment (Akester v Fitzgerald[2016] EWHC 2961 (Fam) , para 16), where I said that it “wholly fails to explain how or why this impacted either on the hearings before me or on my judgment, just as it wholly fails to explain how this can justify the relief being claimed by Mr Fitzgerald in his present application.”
“SJ Lush gave a written judgment. In it he recorded that between7 March 2013 and9 May 2013 Mr Fitzgerald had filed no fewer than nine applications with the Court of Protection. He recorded a number of allegations of very serious misconduct, including fraud and intentionally misleading the court, which Mr Fitzgerald had levelled against both C and the solicitors, MacFarlanes, then acting for her and against C’s predecessor as A’s deputy, A’s sister B. In relation to that, SJ Lush said this: “There has been no effective challenge to C’s competence or integrity. Mr Fitzgerald’s allegations in this respect are simply bluff and bluster.””
“This is a case in which the court is justified in departing from the general rule in rule 156 because of Mr Fitzgerald’s conduct and the fact that he has not succeeded on any part of his case. Most of the issues he raised, pursued or contested had no bearing at all on the court’s decision to appoint a new deputy for A and were simply a prolongation of his dispute with Macfarlanes. I find myself in agreement with the observations of the Deputy Chief Legal Ombudsman, when he said: ‘I can see nothing in what you have said by way of reply having any bearing on the decision that has to be made.’ The manner in which he made or responded to the application was, as [counsel] said, ‘repetitive and vociferous’, ‘tantamount to harassment’, and ‘actionably defamatory’. The persistence with which he kept filing application notices, if not intentionally designed to disrupt and derail the litigation process, almost succeeded in having that effect. … Mr Fitzgerald’s conduct undoubtedly resulted in the costs of the proceedings being greater than they would otherwise have been and it would be unjust to expect them to be paid by A, as would be the position under rule 156. Accordingly, I order that the applicant’s costs be assessed on the standard basis and that Mr Fitzgerald pay the applicant’s assessed costs to the extent that they exceed£7,500 (including VAT). I have selected the sum of£7,500 as this is broadly the amount that I would have expected Macfarlanes to have charged if this application had been uncontested.”
“I allowed the appeal and, exercising my discretion afresh, ordered Mr Fitzgerald to pay C’s costs, in excess of£7,500 , on the standard basis. I ordered Mr Fitzgerald to make an interim payment of£60,000 (inclusive of VAT) on account.”
“In relation to the costs reserved by the order dated13 November 2014 , I ordered Mr Fitzgerald to pay C’s costs of the application dated24 October 2014 on the standard basis. In relation to the costs reserved by the order dated20 January 2015 I ordered Mr Fitzgerald to pay 50% of certain specified parts of those costs, again on the standard basis. I ordered Mr Fitzgerald by way of interim payment to pay£7,000 (inclusive of VAT) on account of the former and£16,000 (inclusive of VAT) on account of the latter.”
“President of Family Division James Munby to rescind his Costs Orders of 22 &24 March 2016 on reconsideration of further evidence; or in the alternative grant permission for appeal of same orders to be heard by full Court of Appeal.”
“Thank you for your email. As requested please find scanned copies of the following: [three Settlement Deeds each dated22 February 1978 , one relating to A]. We do not hold any antecedent deeds for these trusts. We understand from Macfarlanes that land was sold or purchased by tenants, and the proceeds invested in the shares or represented by the cash sums settled under the three 1978 Settlements. We have spoken to Macfarlanes who are also checking their archives for copies of the deeds and will revert to us.”
“Both judges have totally disregarded these important evidential documents, strongly indicative of where [A’s] best interests lay, through procedural manipulation contrary to [A’s] best interests.”
“Both Munby and Lush have gone to the extremity of not only finding [C’s] dishonest evidence to be entirely believable, but have awarded her her costs against for being in position to exhibit that dishonesty to them. The costs she claims are so exorbitant as to be fairly characterised as “outrageous”, and are awarded in total disregard of the principles for costs awards in civil proceedings as set out in the “Jackson Reform” amendments to the Civil Procedure Rules of1st April 2013 . (It is to Munby’s discredit that, as President of the court, it is his responsibility to ensure that Court of Protection rules on costs replicate the CPR, and that he has not done so.)” v) In relation to me, Mr Fitzgerald adds this: “Munby has been at considerable pains to denigrate everything I have said in Statement of Truth as “wild”, “scurrilous” and “obsessive”
“[CC’s] “evidence” on behalf of Macfarlanes LLP can now easily be shown by reference to the genuine evidence of Exhibits DF/3 & 4 [the Instructions to Chancery Counsel dated15 January 1980 and the ‘Schedule to Corrective Account’ submitted to HMRC] to be such falsehood and dishonesty as to be fairly described as a “farrago of lies”. (Munby accuses me in Judgement of a “farrago of nonsense”
“It is now Munby’s duty, having set aside his Costs Orders in this case, to refer [CC] to the Bar Standards Board for disciplinary proceedings and request the Lord Chancellor and Ministry of Justice to investigate Lush’s competence to hold a judicial appointment.”
“The new evidence … consists of two separate but equally significant strands:- i) The admission made by Macfarlanes LLP to solicitor Suzanne Marriott that the so-called “1978 Trusts” … were settled from the proceeds of ‘land sold or purchased by tenants’ … Ms Marriott makes clear her information comes from Macfarlanes LLP … The effect of this admission is to show that both [C] and [XX] deliberately misled the Court of Protection as to the settlement of the “1978 Trusts”, the assets subject to them, and the tax position of [A]’s trustees. ii) … the documentary evidence of Macfarlanes LLP’s close involvement in the sale or redistribution of the [family] Ballymena Estate throughout the period 1962 to 1997 and [C]’s actual ownership of [family] Ballymena Estate land. The effect of this evidence is to show that [C] and [XX] deliberately misled the Court of Protection by dishonest instructions to Counsel.”
“Save for what has been said by [Mr Fitzgerald] in [his] Statement and in his correspondence …, I have no knowledge whatsoever of the 1963 Settlement … I do not know if I am a beneficiary of the 1963 Settlement … I cannot see how it is relevant to the Applications …”
“In any judicial process of investigation in any jurisdiction the simple fact of my being in a position to exhibit the [Settlement dated2 December 1963 ] to Lush and Munby should have been sufficient to show on the balance of probabilities that [C’s] evidence is entirely false and dishonest. She is a beneficiary of the trust, as is [A]; her father was trustee, as was a partner of Macfarlanes LLP …; and the nature of the trust itself (being a “storm-drain” trust whose purpose is to “siphon” assets from the 1919 … Entail [exhibit DF/7] into off-shore property companies outside of UK jurisdiction) would lead today to the criminal prosecution of those involved in setting it up under theFraud Act 2006 . … It can now be shown that not only did [C] have full knowledge of the “1963 … Family Settlement”, she actually owns in her own name landed property in Ballymena, Co. Antrim, Northern Ireland, transferred to her through it.”
“So far as the [D] share is concerned … one half of the investments and cash, and one half of the properties remaining unsold in Ballymena will be appointed to the three [D] children in equal shares absolutely, except that on the advice of Counsel that appointment will now be revocable.”
“Here it is made clear that “one third” of the “[D] half” of the remaining … Ballymena Estate is to be given to [A] by appointment from trust, the trust being the 1963 … Family Settlement. I submit that the evidence of Exhibit DF/3 is so “damning”
“Reference to Exhibits DF/2, DF/5, DF/6 and DF/4 in that order shows that [XX’s] and Macfarlanes’ “version” of the settlement of the “1978 Trusts” is wholly untrue.”
“XX continues in his Witness Statement to assert that no former partner of Macfarlanes was ever a trustee (to his knowledge) of the “1963 … Family Settlement”
“[CC] claims that no-one at Macfarlanes has been involved in or has or had any knowledge of sales of property belonging to the … Ballymena Estate in Northern Ireland. The most cursory reference to Exhibits DF/3 and DF/4 shows this “evidence” to be exactly [a] “farrago of lies” …”
“Administration of [A’s] assets in Northern Ireland appears never to have been the responsibility of [a named relative of A], nor do [C’s] advisers believe that any current partners or employees of Macfarlanes have been responsible for these properties.”
“I should inform you that I will be applying for Judicial Review of Master [X] of SCCO and a Quashing Order on her detailed assessment pursuant to your Orders. The grounds are apparently intentional misconstruction of “Exhibit MGJ/1” and other displays of manifest prejudice in favour of Receiving Party. “Exhibit MGJ/1” is an exhibit of record in Master [X’s] court. It is also now Exhibit DF/9 in your court on application for reconsideration of the Costs Orders assessed my Master [X]. An important issue has arisen attaching to Exhibit DF/9 relating to Application underCPR 44.11 to Master [X]. As DF/9 is now also an exhibit to your court I believe it is appropriate that you consider this issue immediately, in advance of application to the Administrative Court. I believe this to be especially true in view of your forthcoming retirement. Pages 203-5 of “Exhibit MGJ/1” purport to be the ten pages of documentation stolen from my home 23 Medburn Street on or before9 March 2016 , a theft reported to police on your instruction. If these ten pages of documentation had been available to you at hearings on 15, 16 &22 March 2016 , there is little doubt that you would have found against [C] and her solicitor Frances Hughes on all issues. There are, of course, questions as to why you did not direct Matthew Jenkins to disclose them at the time pursuant to his undertaking to you to do so. Only Pages 203 and 204 are likely to be a part of the 10 Page documentation originally exhibited to SJ Lush in December 2015 and stolen in March of the following year. Page 205 is clearly from different documentation, and can be shown to be so. Mr Jenkins affects to believe he has supplied the complete documentation. He has not. I will now be applying to you to issue an “Unless Order” for the production of these documents which are central to your fair and just reconsideration of your Costs Orders of 22 &24 March 2016 in favour of [C]. I would hope to have Application Notice and Draft Order submitted to you by Monday coming. Also, it is noteworthy that the present situation bears many similarities to the circumstances of your issuance of Reported Judgement EWHC 2961 [2016] (Fam). If, as you state, you are now going to hand down Judgement on my application for reconsideration, I would request: 1) You inform me that you are doing so 2) You do not do so until you have had reasonable time to consider this further application.”