Douglas v The Ministry of Justice [2013] EWHC 3640 (QB)

[2013] EWHC 3640 (QB)IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONOn transfer fromTHE NOTTINGHAM COUNTY COURTCase numbers 2NG00503, 2NG00505, 2NG00506Date 21/11/2013
Before
THE HON. MR JUSTICE POPPLEWELL
Between
LEROY DOUGLASClaimant and RespondentTHE MINISTRY OF JUSTICEDefendant and Applicant
Miss Georgina Cursham (instructed by Treasury Solicitors) for ApplicantThe Respondent not attendingHearing Hearing date: 14 November 2013
JudgmentThe Hon. Mr Justice Popplewell :
[1]By an application notice dated 11 October 2013 the Ministry of Justice (“MOJ”) sought a General Civil Restraint Order against Leroy Douglas.[2]Leroy Douglas is a serving prisoner currently at HMP Chelmsford. A hearing was arranged at Nottingham County Court on 14 November 2013 for the MOJ’s application. Facilities were put in place to enable Leroy Douglas to participate in the hearing from HMP Chelmsford by video link. He refused to attend or participate in the hearing via those video link facilities.[3]The cases were transferred into the High Court for the purpose of my hearing and determining the application, and retransferred back to Nottingham County Court thereafter. Having heard counsel for the MOJ, and perused the relevant files I made a General Civil Restraint Order. These are my reasons.[4]The Court’s power to make civil restraint orders (“CROs”) arises pursuant to CPR Rule 3.11. Practice Direction 3C identifies the three forms of CRO which may be made. By paragraph 3.1 an Extended CRO may be made where a party has persistently issued claims or made applications which are totally without merit. By paragraph 4.1, a General CRO may be made where a party persists in issuing claims or making applications which are totally without merit in circumstances where an Extended CRO would not be sufficient or appropriate. An Extended CRO is confined to preventing the party from issuing claims or making applications concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made. A General Civil Restraint Order is not confined to the subject matter which has given rise to the particular proceedings, but may restrain a party from issuing any claim or making any application, without limitation as to its subject matter, without first obtaining the permission of a judge identified in the order.[5]What is meant by persistence in this context was explained by the Court of Appeal in Bhamjee v Forsdick [2004] 1WLR 88 at paragraph 42 as follows:
“We do not include the word “habitual” among the necessary criteria for an extended civil restraint order, but there has to be an element of persistence in the irrational refusal to take “no” for an answer before an order of this type can be made”
. See also R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536 at paragraphs 68-69.

Claims 2NG00503, 2NG00504, 2NG00505, 2NG00506, 2NG00507

[6]The immediate catalyst for the present application was the hearing of five claims brought by Leroy Douglas which were heard by HHJ Godsmark QC in the Nottingham County Court in the week commencing 9 September 2013.[7]In Claim 503, brought against the MOJ and the Governor of HMP Swaleside, Leroy Douglas claimed damages for being denied access to the prison library, to radio and television, and in relation to being allowed to smoke. In Claim 504, Leroy Douglas claimed against the MOJ alleging negligence in relation to the handling of a Rolex watch in the course of his imprisonment at HMP Winchester and HMP Bedford. Claim 505 alleged treatment less favourable than other prisoners at HMP Swaleside. Claim 506 also included a claim of less favourable treatment at HMP Swaleside, together with denial of access to radio, cigarettes, the library and clothes. Claim 507 was brought against the MOJ and the Governor of HMP Elmley based on an allegation that an adjudication was in breach of the Prison Rules and/or his human rights. His claims in these actions were variously framed in negligence, misfeasance in public office, breaches of Article 3 (torture), Article 8 (respect for private life), Article 9 (freedom of thought, conscience and religion), Article 14 (prohibition of discrimination), Protocol 1 Article 1, (right to property) and Protocol 1 Article 2 (right to education) and breaches of PSO 1700 and Prison Rules.[8]The hearing before HHJ Godsmark QC commenced on Monday 9 September with the hearing of Claims 503, 505 and 506. Leroy Douglas attended the hearing and on the first day gave evidence in support of his own case and was cross-examined. Also on that day, and on the following day, Governors Cox and Burke gave evidence and were cross-examined by Leroy Douglas. On the third day, Wednesday 11 September 2013, Leroy Douglas declined to board the prison bus to attend court. Enquiries were made which revealed that Leroy Douglas stated that he did not wish to attend court further and did not wish to pursue his county court claims. The Judge took the view that he should continue to hear the claims which were before him in which he had already heard evidence. Evidence was taken from Mr Neilson, the relevant defendant and prison officer in Claim 506. The Judge heard submissions from counsel for the defendants. He was aware of Leroy Douglas’ case from the evidence he had given and from his cross examination of witnesses on the first two days. Following the conclusion of the hearing he reserved judgment in relation to Claims 503, 505 and 506.[9]Later in the week he dealt with the two claims which had been due to be heard that week but which Leroy Douglas had not attended to pursue. On 11 September 2013, he struck out Claim 507 and marked it as totally without merit. On Thursday 12 September 2013, he struck out claim 504 on the grounds that it was not supported by Leroy Douglas’s evidence and he had indicated he did not wish to pursue it.[10]Judgment was delivered in Claims 503, 505 and 506 on 27 September 2013. The Judge found each claim to be totally without merit. In paragraph 36 of his judgment, he recorded the evidence of Governor Burke that Leroy Douglas was highly litigious, manipulative and prone to making false claims and raising spurious complaints. Governor Burke said that Leroy Douglas had routinely threatened or discussed litigation in conversations he had had with him. In paragraph 46 of his judgment, HHJ Godsmark QC recorded that the view which he had formed of Leroy Douglas during the hearing resonated with the description given by Governor Burke.[11]At paragraph 44 of his judgment, the Judge found Leroy Douglas to be “an untruthful witness and highly manipulative. He has evidently spent much time researching prison rules and the law books, but in my judgment he has done this so as to be able to identify potential causes of complaint. He will then either fabricate or exaggerate an incident in an attempt to turn it into a legal claim. I have no doubt that he regards himself as being entitled to anything any other prisoner has – and that if it is not forthcoming then he immediately reacts by alleging racism and/or discrimination.”[12]He went on at paragraph 45 of the judgment to find that Leroy Douglas had fabricated evidence for the trial. Each of the three claims was addressed in detail and was dismissed as totally without merit.

Other claims

[13]These claims do not stand in isolation. I was provided with a schedule of 26 claims brought by Leroy Douglas against the MOJ and/or prison officers/governors since 2011, and have had the opportunity to peruse the files in respect of a significant number of them. They all relate to his alleged treatment in prison together in some cases with the treatment of others. A number of such claims are pending, but a number have been finally disposed of. There is nothing in the files of those which are pending which suggests that any has merit, although they have not yet been finally disposed of. Those which have been finally disposed of include the following:(1) Claim 2NG01687 brought at Newport (Isle of Wight) County Court claiming damages for alleged breaches of human rights, Article 8 and negligence, by reference to alleged interference with mail at HMP Parkside. The claim was struck out on 1 May 2013 by DJ Ground as disclosing no reasonable cause of action, Leroy Douglas having failed to pursue fully the available complaint procedure in respect of the alleged breaches.(2) Claim 2NG01685 brought in Newport (Isle of Wight) County Court claiming damages for breach of human rights, and misfeasance in public office by reference to alleged discrimination and less favourable treatment than other prisoners at HMP Albany. This claim was struck out on 23 April 2013 as disclosing no reasonable grounds for bringing proceedings.(3) Claim 3NG00172 brought in Stockport County Court, transferred to Newport (Isle of Wight) County Court, against the Governor of HMP Bullingdon in respect of allegedly lost property. The claim was struck out on 17 May 2013 pursuant to an unless order of DJ Ground dated 29 April 2013 for failure to provide a valid address for service for the defendant.(4) Claim 3YJ73407 brought in Stockport County Court claiming for injury and consequential financial loss in respect of an alleged accident on 25 January 2010 at HMP Bullingdon. In this claim, judgment was entered in error, proceedings not having been served on the Treasury Solicitor. Judgment was set aside and the court ordered Leroy Douglas to re-serve the application by 16 August 2013, failing which the claim would be struck out. There was no such service and the claim has been struck out.(5) 3NG01092 brought in the Nottingham County Court alleging breach of the Data Protection Act and being deprived of the opportunity to participate in offending behaviour courses whilst at HMP Littlehey. The proceedings were not correctly served on the MOJ. The Parole Board was also named as a defendant. The claim against the Parole Board was struck out as being totally without merit by an order of 13 September 2013.(6) Claim 3NG01095 brought in the Nottingham County Court in relation to an adjudication at HMP Parkhurst. The proceedings were issued against a Governor Backinsdale, but there is no governor of that name at HMP Parkhurst.(7) Claim 9NG08732 brought in relation to an allegation of assault by another inmate at Long Lartin prison. The claim was discontinued on the basis of no order as to costs.[14]There are also six claims commenced by Leroy Douglas against the MOJ in 2011 numbered 1UC66356, 1UD11852, 1UD17051, 1UD17064, 1UD63677, and 1NG01758. These all alleged injury or damage in relation to Leroy Douglas’s treatment in prison at HMP Winchester, HMP Elmsley, and HMP Swalesdale. The MOJ settled these claims for small sums on economic grounds. The amounts of the settlements do not suggest that there was necessarily any merit in the claim, but rather that they were settled for their nuisance value. No doubt this has encouraged Leroy Douglas to commence the swathe of subsequent claims to which I have referred.

Conclusions

[15]In Nowak v The Nursing and Midwifery Council[2013] EWHC 1932 (QB), Leggatt J recently explained the rationale for civil restraint orders in the following terms:
“58. As explained by the Court of Appeal in the leading case of Bhamjee v Forsdick [2004] 1 WLR 88, the rationale for the regime of civil restraint orders is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the courts from dealing with cases which have real merit. Litigants who repeatedly make hopeless claims or applications impose costs on others for no good purpose and usually at little or not cost to themselves. Typically such litigants have time on their hands and no means of paying any costs of litigation – so they are entitled to remission of court fees and the prospect of an order for costs against them is no deterrent. In these circumstances, there is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the courts’ resources.”
[16]Leroy Douglas is just such a litigant. He has time on his hands and has no means of paying any of the costs of the litigation, so that an adverse costs order provides no deterrent against bringing meritless claims.[17]He has persisted in issuing claims which are totally without merit. Claims 503, 505 and 506 were found by HHJ Godsmark QC to be totally without merit following an oral hearing of the evidence in those cases, including evidence from Leroy Douglas. Claim 507 was held by HHJ Godsmark QC to be totally without merit. Claims 2NG01687 and 2NG01685 were struck out as disclosing no reasonable grounds for bringing proceedings. Claim 3NG01092 against the Parole Board was struck out as being totally without merit.[18]In addition to these baseless claims, Leroy Douglas has caused further unnecessary wasted time and expenditure by issuing claims which he has failed to serve, or to serve correctly, and which have been struck out pursuant to unless orders because he has failed to serve or re-serve them in accordance with court orders.[19]These facts, the findings by HHJ Godsmark QC, and the material in the files which I have perused, confirm that Leroy Douglas spends his time in prison researching prison rules and the rule books so as to be able to identify potential causes of complaint and fabricate or exaggerate incidents in a misguided attempt to turn them into legal claims. This has for him become a way of using his time in prison by way of a hobby, irrespective of whether there is any merit in his claims. The complaints which arise are in respect of his treatment on 26 occasions in the last two years in a considerable number of different prisons by different governors and staff. In essence he has made it his pastime whilst serving his sentence in various prisons to manufacture complaints about his treatment and to use them to commence numerous baseless claims against the MOJ, prison governors, and prison officials. The waste of public resources in dealing with such claims is very considerable.[20]For these reasons it is clear that Leroy Douglas has persistently made claims which are totally without merit; and that unless restrained by a CRO he will continue to pursue claims which are totally without merit. Insofar as he wishes to contend that there is merit in any of his pending claims, or in any new claim, it is right that he should have to demonstrate that there is potential merit on a paper application seeking permission to pursue it, in order to prevent further waste of court time and resources. HHJ Godsmark QC, who is the supervising Judge under the General CRO, will be well placed to decide any such application.[21]I had to consider whether an Extended CRO would have been sufficient. In concluding that it would not have been, I had in mind that the claims which he has brought concern many different aspects of his experiences in prison; they include the treatment not just of himself but of other prisoners; they encompass many different incidents and occasions; they arise in respect of his time in a significant number of different prisons; and they involve claims against a range of defendants which include the prison governors, staff, the MOJ and the Parole Board. The only unifying feature of the claims is that they arise whilst he has been in prison, but there is no reason to think that the taste he has acquired for litigation would be sated were he no longer in prison. It would not be possible, in my view, to frame an Extended CRO which would achieve the necessary protection of the public interest in preventing further abuse.