2009 MLR 112

IN THE MATTER OF THE PETITION OF HOLMES CHANCERY DIVISION [2009 MLR 112] 20 January 2009 DEEMSTER CORLETT Civil procedure—Judgments and orders—Wrongly granted—Remedies—Manx court having given effect to English court order wrongly and illegally registered on Island—Aggrieved party possibly has action in negligence against General Registry Tort—Negligence—Negligence of General Registry—Aggrieved party possibly having action for negligent acts of General Registry—Manx court giving effect to English court order wrongly and illegally registered on Island The petitioner, Mr Holmes, sought the review of all events relating to and all documents issued by the High Court office in a children's matter to which he was a party.

On 1 July 2004, 5 November 2004 and 16 November 2005 Deputy Deemster Williamson made certain orders in a children's matter to which Mr Holmes was a party. Deputy Deemster Williamson's orders were based on orders of the Lancaster County Court, made in 2004, which had been registered in the Isle of Man. The Staff of Government (Appeals) Division subsequently held that the purported registration of the Lancaster County court orders in the Isle of Man was not a valid registration and that Deputy Deemster Williamson's orders based thereon could not stand and had to be quashed. Mr Holmes proceeded to bring a petition of doleance against the General Registry for the review of 'the events of 2004' and documents issued by the High Court office, even up to the end of March 2008, in the matter to which he was a party, which came before Deputy Deemster Williamson. He sought a declaration that the parties to whom the petition was addressed acted unlawfully and that the instrument sent to the police and head teacher was 'a false instrument used with intent'. The alleged facts upon which Mr Holmes brought his petition were that, as a result of the erroneous registration of the Lancaster County court orders and the decisions made by Deputy Deemster Williamson: (a) he suffered a nervous breakdown in 2005 and suffered post-traumatic stress disorder, as well as a borderline personality disorder; (b) he did not have a relationship with his children between October 2004 and January 2008; and (c) a police constable abducted his daughter and, in September 2007, West Midlands Police arrested him on suspicion of child abduction, that stemming also from documents issued by the Isle of Man court.

The respondent and the other noticed parties, the Departments of Education and of Home Affairs, brought an interlocutory application to strike out the petition on the grounds that: (i) it disclosed no reasonable cause of action; (ii) it was frivolous and vexatious; (iii) it was unnecessary and scandalous; and/or (iv) it was an abuse of process.

At the hearing of the application it was submitted for the General Registry that the petition had to be struck out on various grounds: (a) It disclosed no reasonable cause of action. It was, in essence, a claim for a roving review of the events of 2004 and 2005 and, in so far as the petition made any proper claim for relief, it was a matter which had already been amply addressed by the Staff of Government (Appeals) Division in its judgment of 26 October 2007, in which it had made a declaration that the purported registration of the Lancaster County court orders was invalid. As such, the petition was also an abuse of process. (b) It was also an abuse of process because the

matters which were the subject of the current petition had been addressed fully in two judgments

by Acting Deemsters, one by Acting Deemster King dated 25 October 2006 and one by Acting Deemster Sullivan on 20 May 2008.

The matter which came before Acting Deemster King was an application to strike out proceedings in which Mr Holmes claimed the cost of investigating and researching what he regarded as a defect in the Manx orders that gave effect to the Lancaster County court orders. Acting Deemster King struck out Mr Holmes' action on the bases that no such action was known in law and that the pleadings failed to make averments sufficient to sustain an action for damages for the tort of misfeasance in public office. Acting Deemster Sullivan dismissed the application that came before her on the basis that the petitioner was seeking to re-litigate the issues already dismissed by Acting Deemster King.

During the hearing of the current petition, the court explored with counsel the nature of any cause of action Mr Holmes might have against the General Registry arising from the erroneous process of registration.

Held, adjourning the application to strike out: (1) Mr Holmes might well have a cause of action in negligence against the General Registry, so that, if he thought fit, he could amend his current petition of doleance to plead negligence on the part of the General Registry; and his petition of doleance could then continue on the basis that it was making a claim for a declaration of unlawfulness combined with a claim for damages, such claims being permissible under s 44 of the High Court Act 1991 (para 26).

(2) Neither before Acting Deemster King nor before Acting Deemster Sullivan was the issue of negligence addressed. Therefore, if Mr Holmes amended his petition in the manner referred to, the court might have before it a petition which did not duplicate the proceedings that came before either Acting Deemster King or Acting Deemster Sullivan (para 28).

(3) The court could not say that, if the petition were suitably amended to plead such matters, it could then be regarded as unarguable and with no chance of succeeding, such that it should presently be struck out (para 31).

(4) For the very same reasons, such a petition would not be frivolous and vexatious or an abuse of the process of the court (para 32).

(5) The result was that the application to strike out was adjourned to enable the petitioner to make an application within 14 days for leave to amend his petition in the manner outlined above (para 34).

Cases Cited Davis v Radcliffe 1987-89 MLR 341, applied Grepe v Loam (1887) 37 ChD 168 (CA), referred to Spengler, In re Estate MLR N[41], referred to Legislation Construed High Court Act 1991 (c 12), s 44:

'(1) A declaration may be made or an injunction granted in any case where a petition of doleance, seeking that relief, has been presented to the High Court and it considers that, having regard to all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

(2) On a petition of doleance the High Court may award damages to the petitioner if — (a) he has included in the petition a claim for damages arising from any matter to which the application relates; and (b) the court is satisfied that, if the claim had been made in an action begun by the petitioner at the time of making his application, he would have been awarded damages.

(3) If, on a petition of doleance, the High Court quashes the decision to which the application relates, the High Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.'

The petitioner appeared in person.

Oliver Helfrich for the General Registry.

The Departments of Education and of Home Affairs did not appear and were not represented.

DEEMSTER CORLETT Introduction [1] On 16 June 2008 Stephen Holmes (Mr Holmes) commenced proceedings in the Common Law Division of the High Court under case reference CLA 2008/46. This is the petition which is the subject of this judgment, the petition having been transferred to the Chancery Division and allocated reference CP 2008/84 in accordance with an order dated 18 September 2008.

[2] The respondent to the petition is the General Registry, the government department responsible for the operation of the courts in the Isle of Man. The other noticed parties are the Departments of Education and of Home Affairs. The General Registry is an entity capable of separate legal existence — see the General Registry Act 1965.

[3] This judgment concerns an application dated 29 September 2008, which has been brought by the General Registry and those two departments to strike out the petition on the grounds that it: (a) discloses no reasonable cause of action; (b) is frivolous and vexatious; (c) is unnecessary and scandalous; and/or (d) is an abuse of process.

[4] In addition, they bring an application against Mr Holmes for a civil restraint order which would have the effect of preventing Mr Holmes from commencing any legal action in the Isle of Man relating to the matters touched upon in the present proceedings for a period of some two years, without first obtaining the leave of the High Court in order to do so. Both applications were supported by the affidavit of Carol Denise Dowd, the Director of Courts and Tribunal Services, sworn on 26 September 2008.

[5] This judgment deals in detail with only the first application, namely that to strike out the petition.

Background [6] I will not engage in a lengthy recital of the background to the petition. The background is set out with considerable clarity in the judgment of the Staff of Government (Appeals) Division dated 26 October 2007 (2DS 2007/09) brought in the matter of the case between Mr Holmes and his wife Yvonne, in which the Staff of Government (Appeals) Division held that an order made by Deputy Deemster Williamson on 5 November 2004 should be quashed in its entirety and that para 4 of the order made by Deputy Deemster Williamson on 16 November 2005 should also be quashed. For the reasons explained in that judgment, the Staff of Government (Appeals) Division held that the purported registration by court officials of certain orders made by the Lancaster County Court in 2004 was not in fact a valid registration, such that any Manx court order based thereon could not stand and had to be quashed.

[7] In his current petition Mr Holmes essentially complains about the unlawful registration in the Isle of Man of the orders made by the Lancaster County Court and of the actions of Deputy Deemster Williamson in basing his orders of 1 July 2004, 5 November 2004 and 16 November 2005 on the erroneously registered orders.

[8] Mr Holmes says that as a result of the erroneous registration and the decisions made by Deputy Deemster Williamson, he suffered a nervous breakdown in 2005 and suffered post-traumatic stress disorder as well as a borderline personality disorder. He says that he did not have a relationship with his children between October 2004 and January 2008. He also complains that a police constable abducted his daughter and that in September 2007 West Midlands Police arrested him on suspicion of child abduction, this stemming also from documents issued by the Isle of Man Court.

Claim for relief [9] In para 5 of the petition, under the heading 'The remedies sought', Mr Holmes states that he seeks the following: 'Your petitioner seeks a declaration that the parties to whom this petition is addressed acted unlawfully and that the instrument sent to the police and head teacher was a false instrument used with intent.'

[10] In a footnote to the petition he states: 'This is a petition for doleance of grievance. The court MUST review the events of 2004 in matter number DIV 2004/144 — indeed ALL documents issued by the High Court office with regard to Children's matter DIV 2004/144 — even up to the end of March 2008. This is NOT a claim for damages — it is an application for a judicial review in the High Court in the Isle of Man — a matter that goes under the name of a petition of doleance.'

[11] It should be noted that Mr Holmes clarified during the course of the hearing that he did not wish to pursue any further claim, at least not currently in this court, against the Department of Education or the Department of Home Affairs. So far as his claim against the Department of Home Affairs is concerned, he told me that this was a matter which he was dealing with direct with the

police and their insurers. This judgment is therefore given on the basis that the only claim which Mr Holmes is actively pursuing at present is one against the General Registry.

Strike out application [12] Mr Helfrich, who appeared for the General Registry at the hearing on 13 January 2009, submitted that the petition should be struck out on various grounds. Firstly, he said that the petition disclosed no reasonable cause of action. It was in essence a claim for a roving review of the events of 2004 and 2005 and that in so far as the petition made any proper claim for relief (as set out in para 5), this was a matter which had already been amply addressed by the Staff of Government (Appeals) Division in its judgment of 26 October 2007, in which it had self-evidently made a declaration that the purported registration of the Lancaster County court orders was in fact invalid. As such, the petition was also an abuse of process.

[13] Furthermore, the petition was also an abuse of process because the matters which are the subject of the current petition were addressed fully in two judgments by Acting Deemsters, one by Acting Deemster King dated 25 October 2006 and one by Acting Deemster Sullivan on 20 May 2008.

The previous judgments [14] I therefore turn to consider the judgments of Acting Deemsters King and Sullivan.

[15] On 25 October 2006 Acting Deemster King gave an ex tempore judgment which made clear, firstly, that Mr Holmes was unable to be present at the hearing owing to the fact that he was in prison at the time in England.

[16] The application before Acting Deemster King was similar to that made in this case, namely one to strike out the proceedings. At p 806 of the bundle there is a useful summary by Acting Deemster King of the claim which was then being made by Mr Holmes. He says this: 'In essence, stripping out the detail, what this default action so called amounts to, is a claim by the plaintiff for the cost to him of investigating and researching what he regards as a defect in the orders made on this Island in the matrimonial proceedings. His case appears to be that in the matrimonial proceedings, the Manx court wrongly and illegally gave effect to an English court order. That may or may not be right and I make no comment on that; what I do say is that it appears to me that this so-called default action is not an action known to law. Because what this man is seeking to do, this plaintiff, instead of going down the obvious route if he challenges the orders in the matrimonial court by way of appeal, has embarked on a wholly collateral attack on those concerned in the administration of justice on this Island, and particularly those who are concerned in the administration of the process of the matrimonial proceedings. This is not a cause of action which from my reading of any authorities is known to law on the Island. It is quite straightforward, and was quite straightforward, for this plaintiff to pursue his grievances in relation to the matrimonial proceedings in the way in which the law of the Island allows, namely through the appellant process.'

[17] Acting Deemster King continued as follows at p 807: 'In so far as his purported amendments to his default, so-called default action, introduces a cause

of action which may be found in the law books, namely malfeasance of public duty, there is nothing on the face of his pleading which begins to get such cause of action off the ground. There has to be shown dishonesty, there has to be shown a recklessness as to the lawfulness of what is going on.'

[18] Acting Deemster King did strike out Mr Holmes' action, which, as is clear from the judgment, was founded, in so far as it disclosed any cause of action, on the tort of misfeasance in public office (referred to by the Acting Deemster as 'malfeasance of public duty'), and furthermore was somewhat oddly claiming the cost of Mr Holmes' time in researching the background to the matter.

[19] It is of course the case that the Staff of Government (Appeals) Division had at that time yet to deal with the issue of the erroneous registration of the Lancaster County court orders, and Mr Holmes told me during the course of the hearing that so far as he was concerned he did not become aware of the full background to the unlawful registration of the court orders until March 2007. This does not particularly surprise me. Anyone seeking to research the law and procedure relating to the registration in the Isle of Man of 'custody orders', as they are termed, made in the UK would immediately find themselves hampered by the fact that the relevant subordinate legislation setting out the detailed procedure for proper registration to take place (i e the Rules of the High Court of Justice (Child Custody) 1991 — GC 232/91) is, as with much subordinate legislation made in the Isle of Man, virtually impossible to obtain.

[20] The judgment of Acting Deemster Sullivan is dated 20 May 2008 and dealt with an application to strike out a petition of doleance brought by Mr Holmes against the Department of Home Affairs, the Department of Education, and the General Registry, the petition being dated 18 January 2008.

[21] Mr Helfrich helpfully took me through the petition brought by Mr Holmes which was before Acting Deemster Sullivan and it is indeed the case that the petition bears a remarkable similarity to the petition currently before me. However, a key difference is the fact that the cause of action alleged in the January 2008 petition is 'misfeasance in public office' (see paras 4 and 5 thereof).

There is no reference to misfeasance in public office in the current petition. The background to the petition, as recited by Acting Deemster Sullivan at p 765 of the bundle, is identical to that to which reference is now being made.

[22] Acting Deemster Sullivan states at p 772 that certain allegations made by Mr Holmes were entirely correct, namely that the registration processes were erroneous and unlawful and therefore that the orders made by Deputy Deemster Williamson on 5 November 2004 were revoked in October 2007, this being a result of the Staff of Government (Appeals) Division appeal proceedings of October 2007.

[23] At p 776 Acting Deemster Sullivan states that there were two claims brought before her by Mr Holmes, the first being misfeasance in public office. At p 781 she refers to a claim against Deputy Deemster Williamson being debarred on the grounds of his absolute immunity from personal civil liability arising out of the performance of his judicial acts. At p 782, Acting Deemster Sullivan refers to the other claim having been brought under the Human Rights Act 2001 and she ruled that this had no prospect of success on the grounds of it being time-barred and the acts giving rise to any claim having arisen before the Human Rights Act came into force in any event.

[24] Acting Deemster Sullivan stated at p 790 that she was satisfied that the current petition was seeking to re-litigate exactly those issues that were raised in the proceedings which were dismissed by Acting Deemster King as having no prospect of success.

Registration and negligence [25] As Mr Helfrich points out in his very helpful and comprehensive skeleton argument, the registration of the Lancaster County court orders was clearly an administrative act prima facie amenable to judicial review (see para 23 of the skeleton argument). However, Mr Helfrich goes on to say that this aspect of the matter has already been addressed by the Staff of Government (Appeals) Division, which quashed those orders which were based on the two improperly registered orders.

[26] During the hearing I explored with both Mr Helfrich and Mr Holmes the nature of any cause of action which he might have against the General Registry arising from the erroneous process of registration, which he rightly characterises as an administrative (as opposed to a judicial) act. It seemed to me as a result of those exchanges that Mr Holmes might very well have a cause of action in negligence against the General Registry and that accordingly he could, if he thought fit, amend his current petition of doleance to plead negligence on the part of the General Registry and that his petition of doleance could continue on the basis that it was making a claim for a declaration of unlawfulness combined with a claim for damages, such a claim being permissible under s 44 of the High Court Act 1991. This provides that a declaration may be made in any case where a petition of doleance, seeking that relief, has been presented to the High Court and the court considers that, having regard to all the circumstances of the case, it would be just and convenient for the declaration to be made. Section 44(2) of the Act provides the High Court with power to award damages to a petitioner on a petition of doleance if he has included in the petition a claim for damages arising from any matter to which the application relates and the court is satisfied that, if the claim had been made in an action begun by the petitioner at the time of making his application, he would have been awarded damages.

[27] Mr Holmes indicated that he would be prepared to seek the leave of the court to amend his petition of doleance to plead such negligence. [28] It is worthy of note that neither before Acting Deemster King nor Acting Deemster Sullivan was the issue of negligence addressed. As I have indicated, it is Mr Holmes' position that when he made his claim before Acting Deemster King (at which he was unable to appear in any event), he was not in a position to know all the facts behind the erroneous registration. It may therefore not have occurred to anyone at the hearing that negligence could be raised as a cause of action. Similarly, this matter does not appear to have been raised before Acting Deemster Sullivan. It seems to me, therefore, that if Mr Holmes is prepared to apply to amend his petition of doleance dated 16 June 2008, in the manner referred to above, the court may have before it a petition which does not duplicate proceedings which were before either Acting Deemster King or Acting Deemster Sullivan. I must, of course, bear in mind that Mr Holmes, although quite an experienced litigator by this time, is still a litigant in person and does not have the benefit of any legal advice whatsoever. I must therefore afford him a degree of latitude in formulating his pleadings to which an advocate or a party acting with the benefit of legal advice would not be entitled.

[29] Whilst I accept what Mr Helfrich says to the effect that Mr Holmes is, to a very large extent, going over old and familiar ground in his current petition, the fact is that in my judgment he has not formulated a claim before any court based on the negligence of the court officials concerned in the erroneous registration of the Lancaster County court orders in 2004. True, he has previously attacked the registration process based on misfeasance in public office and he has mounted a sustained attack against Deputy Deemster Williamson's various orders. There is no doubt in my mind that Mr Holmes has no prospect of success in endeavouring to claim damages for misfeasance in public office and neither does he have any prospect of success whatsoever in bringing a claim against a member of the judiciary. These matters have already been comprehensively addressed by Acting Deemsters King and Sullivan. Nevertheless, it seems to me that he might possibly have the prospect of some success in a claim pleaded in negligence and brought against the General Registry.

[30] Whether of course any such cause of action will avail him of any benefit whatsoever remains very much to be seen. It appears to me that Mr Holmes will have significant difficulties in proving causation and quantum and he will have to overcome significant hurdles in explaining, for example, why he did not appeal more promptly against Deputy Deemster Williamson's orders made in November 2004 and November 2005.

[31] In his submissions to me Mr Holmes said that he had suffered enormously arising from the erroneous registration of the orders for the period 2 April 2004 (the date when Mrs Holmes requested registration of the orders) and 29 October 2007, the date when he received the order of the Staff of Government (Appeals) Division revoking Deputy Deemster Williamson's orders. He told me that he had never previously been advised that he might have a negligence claim and that he was, in reality, seeking to bring a claim for compensatory damages based on negligence which he said had caused him to be imprisoned and had given rise to the ruin of both his own life and of his relationship with his son and daughter. In simple terms he sees himself as the victim of an act of negligence or carelessness by a public body and, like anyone else who might have suffered as a result, he wishes to seek financial restitution from the court for the distress, inconvenience and any financial loss arising therefrom (not, I presume, a claim of the same nature as that brought before Acting Deemster King). I bear in mind that of course this contention is at odds with the footnote to his current petition, quoted above at para 10. Again, I would emphasise that one can foresee very considerable difficulties in Mr Holmes' way in what would be a somewhat novel legal action.

Nevertheless, I cannot say that if the petition is suitably amended to plead such matters, it could then be regarded as unarguable and with no chance of succeeding such that it should now be struck out in accordance with the well-known test in Davis v Radcliffe 1987-89 MLR 341.

[32] For the very same reasons I find myself unable to agree with Mr Helfrich that such a petition of doleance would be frivolous and vexatious or an abuse of the process of the court. Obviously, one would have to see precisely how Mr Holmes pleads his case, but I believe at this stage of the proceedings and bearing in mind that he is acting as a litigant in person, he ought to be given the opportunity to amend his petition and I will accordingly give him 14 days from the handing down of this judgment in order that he can provide a proposed amended pleading to the court and to Mr Helfrich.

Mr Holmes' conduct [33] As I have indicated earlier, I do not intend to deal in this judgment with the application for a civil restraint order. It would seem to me to be inappropriate to do so in the light of my ruling that the petition should not be struck out today. I express no final opinion either at this stage as to whether the court has jurisdiction to make such a civil restraint order in the absence of any statutory basis in Manx law or any rules of court relating thereto. Mr Helfrich submitted that there was ample authority for the court to make such an order based on its common-law powers, and he referred in particular to the judgment in In re Estate Spengler MLR N[41] and the rather older case of Grepe v Loam (1887) 37 ChD 168 (CA). While I am not prepared to make such an order at this time, I would wish to comment briefly on the appalling nature of the correspondence which Mr Holmes has sent to numerous individuals (particularly court officials) and bodies, connected with his various grievances. It is wholly unacceptable for Mr Holmes to write in the way he does. His letters and e-mails are offensive and puerile in their content and I am sure he realises that such correspondence does not assist his case one iota.

Conclusion [34] The result therefore is that the application to strike out the petition of doleance dated 16 June 2008 is adjourned to enable the petitioner to make an application within 14 days for leave to amend his petition in the manner outlined above. I will hear that application as soon as possible.

Application adjourned.