So far as relevant for present purposes, I need to refer to three judgments I gave in 2016. Two are judgments in the Court of Protection, the first on 10 August 2016 and the second on 18 August 2016, which explain why I made the orders dated 22 and 24 March 2016 and which are essential reading if the application now before me is to be properly understood: In the matter of A (A Patient); In the matter of applications by and against Desmond Maurice Fitzgerald [2016] EWCOP 38 (sub nom In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141 ) and In the matter of A (A Patient); In the matter of applications by and against Desmond Maurice Fitzgerald (No 2) [2016] EWCOP 39 . The other is a judgment, also essential reading, I gave on 21 November 2016: Akester v Fitzgerald [2016] EWHC 2961 (Fam) .
As anyone who reads those judgments will readily appreciate, Mr Fitzgerald is a far from typical litigant. As I said in my first judgment, In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141 , para 2:
Amongst the matters I had to deal with in that judgment, were applications by Mr Fitzgerald for the committal to prison of a solicitor, Ms Frances Hughes, for alleged contempt of court and for a wasted costs order against that solicitor's firm, Hughes Fowler Carruthers. I dismissed both applications. In relation to the first, I said this (para 40):
In relation to the second, I said this (para 47):
In relation to another matter (C's application for costs against Mr Fitzgerald – see further below) Mr Fitzgerald filed a position statement of which I said this (para 18):
I went on to explain (paras 64-65) why on 22 March 2016 I had made an extended civil restraint order against Mr Fitzgerald to remain in effect until 21 March 2018.
In my third judgment, I said this ( Akester v Fitzgerald [2016] EWHC 2961 (Fam) , paras 18-19):
As anyone who has read Mr Fitzgerald's voluminous emails will appreciate (the email traffic with me which he has generated since 2014 fills the equivalent of five lever arch files; the emails since my last formal involvement when I handed down my third judgment on 21 November 2016 fill the best part of 1½ lever arch files), they are characterised by hectoring, intimidating bluster and absurd and defamatory allegations against anyone, legal practitioner or judge, about whom he has conceived some cause for complaint. I take a few recent examples.
In an email to me on 7 June 2018, Mr Fitzgerald said:
Later the same day in a further email, Mr Fitzgerald said:
My response by email the next day included this:
The assessment of the costs which I ordered Mr Fitzgerald to pay is currently proceeding in the Senior Courts Costs Office (SCCO). This generated an email from Mr Fitzgerald to SCCO on 21 June 2018, copied by him to me, which included the following:
In a letter dated 22 June 2018 addressed to Chief Master Gordon-Saker, attached to an email from Mr Fitzgerald on 27 June 2018, which was copied by him to me, Mr Fitzgerald wrote:
I make clear that the only reason why I have redacted the Master's name is to prevent Mr Fitzgerald repeating these grossly defamatory remarks under the cloak of the privilege which attaches to this judgment.
I have referred above to the proceedings in the Central Family Court between Mr Fitzgerald and his wife. For present purposes what is relevant is an order made in those proceedings in October 2016 by Judge Y by way of enforcement of an order made for the sale of the former matrimonial home. On 27 June 2018, Mr Fitzgerald sent an email to Judge Y:
Mr Fitzgerald forwarded that email to me later the same day by an email which included this:
I record that in an email to me of 4 July 2018 Mr Fitzgerald said this:
Even while I have been preparing this judgment, Mr Fitzgerald has continued to bombard me with hectoring and abusive emails. On 9 July 2018 he emailed me:
I replied later the same day:
This produced further emails from Mr Fitzgerald the following day, 10 July 2018 (1314):
Then, a little later (1340), this:
And then this (1348):
These remarkable effusions speak eloquently of Mr Fitzgerald. They speak for themselves. They neither need nor merit further comment.
It is a fact that, unfortunately, one cannot take anything Mr Fitzgerald says at face value. I need to draw attention to three examples.
The first relates to Mr Fitzgerald's characterisation of his current application, which he describes as "Application in reconsideration pursuant to undertaking of the President." In his witness statement he says:
I have never given Mr Fitzgerald any such undertaking or confirmation. On 19 April 2017 he sent me the following email:
I responded on 20 April 2017 in the following terms:
On 29 March 2018, in answer to an email which Mr Fitzgerald had sent me on 19 March 2018, I sent him an email in the following terms:
The second matter arises from Mr Fitzgerald's assertion in his witness statement that:
This is simply wrong. Mr Fitzgerald issued three appellant's notices: B4/2016/1347, B4/2016/1436 and B4/2016/1470. By an order made on 24 August 2017 and sealed on 25 August 2017, McFarlane LJ refused permission to appeal in each case "on the basis that each application is 'totally without merit'." The Court of Appeal Office has confirmed to me that there are no live applications from Mr Fitzgerald in the Court of Appeal.
The third matter arises from an email sent to me by Mr Fitzgerald on 5 July 2018 in the following terms:
In relation to this, I make three observations:
i) First, I sent the judgment to which he refers to Mr Fitzgerald by email on 21 November 2016 (1331). He responded by email almost immediately (1351): "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 on 24 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."
As I have said, in the course of the proceedings in the Court of Protection SJ Lush, by an order dated 28 May 2013, had appointed C to be A's deputy for property and affairs. In relation to this, I quote what I said in my first judgment, In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141 , para 3:
I went on (para 6) to quote a further passage in the judgment of SJ Lush:
Mr Fitzgerald's appeal from that costs order came on for hearing before me in March 2016. The very detailed Bill of Costs put forward by C showed the total amount claimed as being £127,465·59 net, after deduction of the sum of £7,500 allowed by SJ Lush: see In re A (A Patient) (Court of Protection: Costs Order) [2016] 4 WLR 141 , para 51. As I explained (para 27):
My reasons for coming to that decision were set out in detail in that judgment (paras 52-55) and need no repetition here. My order, dated 22 March 2016, is the first of the orders which Mr Fitzgerald now invites me to set aside.
The other order which I am invited to set aside, dated 24 March 2016, was made on the application of C in relation to various costs of the proceedings before me: see In the matter of A , paras 14-16, 18. It related (para 28) to the costs which I had reserved by orders dated 19 December 2013, 10 June 2014, 13 November 2014 and 20 January 2015. My decision, embodied in the order dated 24 March 2016, was (para 28) that:
I directed the remainder of C's costs to be paid out of A's estate. My reasons for coming to those decisions were set out in detail in my judgment (paras 57-62) and need no repetition here.
In his Application notice, Mr Fitzgerald, in response to the question "Are there any reasons why this application should not be dealt with on paper by a judge?", answered "No." I have accordingly dealt with his application on paper and without a hearing.
In his Application notice, Mr Fitzgerald identifies the order he is asking me to make as follows:
There can be no question of my giving Mr Fitzgerald the permission to appeal he seeks. As I have explained, his applications to the Court of Appeal for permission to appeal have already been dismissed. In relation to that, I am functus officio . The application which is properly before me, and to which I therefore turn, is for "reconsideration" of my orders on the basis of what Mr Fitzgerald says is "further evidence."
That evidence is set out in the witness statement of Mr Fitzgerald dated 4 June 2018 to which I have already referred. To that statement, Mr Fitzgerald has exhibited a number of documents. These include various deeds in connection with family settlements relating in significant part to land in Ireland ("the Irish Land"), including land at Ballymena, the family being that of both A, C and Mr Fitzgerald: a Settlement dated 24 April 1919 (exhibit DF/7); a Deed of Partition and Exchange dated 20 October 1961 (exhibit DF/8); a Settlement dated 2 December 1963 (exhibit DF/5); and a Deed of Appointment dated 29 March 1976 (exhibit DF/6). Also included as exhibits are: Instructions to Chancery Counsel dated 15 January 1980 (exhibit DF/3); a 'Schedule to Corrective Account' submitted to HMRC in, it would seem, 1998 (exhibit DF/4); and a copy of exhibit MGJ1 to the witness statement of Matthew George Jenkins dated 1 June 2017 in the proceedings in the SCCO between C and Mr Fitzgerald (exhibit DF/9).
A further exhibit (exhibit DF/2) is an email sent on 12 April 2018 to Mr Fitzgerald by Suzanne Marriott of Charles Russell Speechlys LLP which reads as follows:
Adopting Mr Fitzgerald's terminology, I shall refer to the various trusts created by these three Settlement Deeds as "the 1978 Trusts."
In his witness statement, Mr Fitzgerald makes the following allegations:
i) In relation to C, he says "it is increasingly likely that [C] will be found to have acted in bad faith while … [A's] … trustee."
ii) In relation to C and XX (a former partner in the firm of Macfarlanes LLP), he says that they "deliberately misled the Court of Protection by dishonest instructions to Counsel, a misrepresentation of such seriousness criminal prosecutions may result." The version of facts they put forward was, he says, "false and fabricated." He describes C's evidence as "entirely false and dishonest." He characterises part of XX's evidence as "a bare-faced lie" and his evidence to SJ Lush as "intentionally falsified." He says that XX's version of events in relation to the 1978 Trusts is "wholly untrue" and "fraudulent."
iii) He says that A's two elder sisters had "jointly attempted to defraud" A.
iv) He says that SJ Lush in 2013 "manipulated procedure in his court so as to either disregard or exclude" the material upon which he relies in support of his allegations against C and XX, and that I "supported him [SJ Lush] in this manipulation of procedure throughout the appeal process." He continues: "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." Warming to his theme, he continues:
v) In relation to me, Mr Fitzgerald adds this:
vi) In relation to the skeleton argument prepared by counsel, CC, instructed by Macfarlanes LLP to appear in 2013 before SJ Lush, Mr Fitzgerald says that:
The focus of all these allegations against C, XX, CC and A's two sisters is Mr Fitzgerald's belief that there has been systematic skulduggery (my word) in relation to the Irish Land and the 1978 Trusts.
Thus far I have focused on Mr Fitzgerald's allegations . What is the evidence upon which he relies? That is to be found, he indicates, in his witness statement, where he says this:
In relation to his allegations against C, Mr Fitzgerald begins with the Settlement dated 2 December 1963 (exhibit DF/5). It creates discretionary trusts in what were then fairly common form in favour of various members of the settlor's family (the settlor being A's father); both A and C were members of the class of beneficiaries in relation to whom the trustees were given typically wide discretionary powers. The Settlement was in evidence before both SJ Lush and, subsequently, me. In a witness statement dated 18 April 2013, prepared for the hearing before SJ Lush, C said this:
Mr Fitzgerald, in his witness statement, says this:
In relation to the latter point, Mr Fitzgerald refers to the following passage in the instructions to Chancery Counsel dated 15 January 1980 (exhibit DF/3):
C, I should explain, is one of the D children. Mr Fitzgerald continues:
As is quite evident from what I have set out, the evidence adduced by Mr Fitzgerald does not begin to support, let alone to establish, his case against C. His allegations against C of bad faith, dishonesty, falsity, fabrication and misleading the court are utterly groundless. They have no foundation in reality and should never have been made.
Turning to the position of Macfarlanes and XX, Mr Fitzgerald invites me to compare what XX said in paragraphs 2.1 – 2.12 of his witness statement dated 18 March 2013 (what he calls "the Macfarlanes' version of the settlement of the 1978 trusts") and exhibits DF/2, DF/4, DF/5 and DF/6. He says:
I can only say that neither an examination of that material, nor indeed what Mr Fitzgerald says in the next few paragraphs (paragraphs 24-28) of his witness statement, begins to make good that factual assertion, let alone Mr Fitzgerald's further assertion (paragraph 30) that XX's evidence to SJ Lush was "intentionally falsified."
An illuminating example of Mr Fitzgerald's way with evidence and submissions is to be found in his witness statement (paragraph 29:
How XX's knowledge of the trusteeship of the 1978 Trusts is said to establish that his denial of knowledge of the trusteeship of the 1963 Settlement is a "bare-faced lie" is not explained by Mr Fitzgerald.
Again, in relation to XX, as in relation to C, it is quite evident from what I have set out that the evidence adduced by Mr Fitzgerald does not begin to support, let alone to establish, his case against XX. His allegations against XX of dishonesty, falsity, fabrication, lying, misleading the court and fraud are utterly groundless. They have no foundation in reality and should never have been made.
In relation to CC, Mr Fitzgerald, having referred to paragraphs 21-22 of CC's skeleton argument dated 10 May 2013, says in his witness statement:
This is not in fact what was said in the skeleton argument, the relevant passage (in paragraph 21) reading as follows:
Again, in relation to CC, as in relation to C and XX, it is quite evident from what I have set out that the evidence adduced by Mr Fitzgerald does not begin to support, let alone to establish, his case against CC. His allegations against CC of falsehood, dishonesty and putting forward a farrago of lies and nonsense are utterly groundless. They have no foundation in reality and should never have been made.
I accordingly dismiss Mr Fitzgerald's application. It is, in all respects, totally without merit. I decline to refer CC to the Bar Standards Board. I decline to request either the Lord Chancellor or the Ministry of Justice to investigate SJ Lush. There is no conceivable basis for doing any of these things.
On 12 July 2018, at the point when this judgment was almost complete, I received from Mr Fitzgerald a further email:
Nothing in this begins to explain why it is said that, if these ten pages of documentation had been available to me in March 2016, I would have found against C and her solicitor Frances Hughes on all issues, or, indeed, on any of the issues then before me.
In my judgment, there is no reason at all why I should not now deliver this judgment.
If Mr Fitzgerald wishes to make the further application he refers to, it can be considered on its merits in due course. His indication of his intention to issue the application is no reason to defer this judgment.
Note 1 For internal record-keeping purposes within the office of the Clerk of the Rules, and as indicated by the inclusion in the number of the figure 9, the case was allocated a Family Division reference number: FD13P90056. But the case has never been transferred to the Family Division and remains in the Court of Protection. [Back]
Note 2 I do not take up time considering whether Mr Fitzgerald’s “further evidence” is such as to entitle him to pursue his application, and it should not be assumed that I think it is. It is nonetheless convenient in the circumstances to proceed on the assumption that it is and, accordingly, to address his application on the merits and having regard to all the evidence he wishes me to consider. [Back]