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Forensic incontinence

 

At the present time, there are few smaller pockets of intense joy than visiting Bailii and seeing the name Benmusa appear in the new cases list.

If you’ve not been keeping up, Ms Benmusa believes (without the tiresome business of evidence or justification) that she is the secret illegitimate daughter of Princess Margaret and that opening up Princess Margaret’s will is the final (or indeed first) piece of the puzzle. The only way she can do that is to make an application to the increasingly exasperated and creatively irritated President of the Family Division. The last time, she produced a death certificate from someone she claimed to be her maternal aunt (who would thus be Princess Margaret’s older sister… do you see the inherent problem with that? And added to that, said maternal aunt was born at a time when Princess Margaret’s father would have been ten and more interested in whatever the turn of the twentieth century equivalent of Transformers were than procreation)

 

This time round, Ms Benmusa’s killer argument is that the sole piece of evidence that she herself produced was ‘a flake’  (which we assume to mean ‘fake’), which is an impressive trump card to pull out. It is the legal equivalent of tripping over your feet and falling flat on your face and trying to recover the situation by shouting loudly “I meant to do that”

This brilliant argument did not, needless to say, impress the President, who was somewhat mournful (yet comedically so) about the fact that the remainder of his, and indeed all succeeding Presidents, was going to be taken up with Benmusa applications and that there wasn’t even a Court fee to be paid. The Court staff HAD to issue the applications even if they had no merit and the President would have to consider them. There was no value in declaring Ms Benmusa a vexatious litigant as that would just lead to a string of leave applications.

How was the President to stop this ‘forensic incontinence’?    (and with that line, the President has set a high bar in my new Pithiest Judicial Remark of the Year contest.  You’ll all be stealing that.)

http://www.bailii.org/ew/cases/EWHC/Fam/2017/966.html

Ms Benmusa’s wasting of the court’s time – a phrase I use advisedly and deliberately – has been facilitated by the surprising fact that an application of the kind made by Ms Benmusa is, rara avis, one that can be made without payment of any court fee: see Tristram and Coote’s Probate Practice, ed 31, paras 25.234 and 25.265. I cannot help thinking that even someone like Ms Benmusa might be deterred from such forensic incontinence if she had to pay a fee.

What is to be done? As a matter of high constitutional principle (1) court staff cannot refuse to issue process – such a decision can be taken only by a judge – and (2) a judge cannot make an order absolutely barring access to the court; even a vexatious litigant so declared, or a litigant subject to a civil restraint order or a Grepe v Loam order (see Grepe v Loam (1887) 37 ChD 168) retains the right to apply to a judge for permission to bring proceedings. So, there is no kind of order I can properly make to prevent Ms Benmusa continuing to bombard the court with further nonsensical applications which will have to be put before a judge. What I can do, and this is what I propose to do, is to direct that if any further application is received from Ms Benmusa it is, before being issued, to be put before the President of the Family Division who can then either direct, if appropriate, that the application is, by order of the President of the Family Division, to be returned, unissued, to Ms Benmua, or direct, if appropriate, that the application is to be issued, whereupon it can then be considered by the President of the Family Division in the usual way.

 

Awesome – one individual has effectively just got their own Presidential Practice direction.

 

I shall be sad to see an end to the Benmusa litigation – the President clearly has greater control over his curiousity than I would have – I’d have opened up the will and had a peek and told the world that there was no secret confession about ANY secret illegitimate children in there. But I guess those who believe would have just written that off as part of the cover-up.

 

 

(*Also kudos to the President for using rara avis, one of the few Latin phrases that I know – it means ‘that rare bird’ or in this context ‘very unusually’ )

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

16 responses

  1. Bless. She probably writes in green ink as well and he reads it with his coffee

  2. ashamedtobebritish

    I’d imagine there are illigimate children all over. In any other case, a magistrate would have simply ordered a DNA, why is this one any different?

    • We haven’t yet reached the point where a judge can order a DNA sample to be taken of you at the behest of a random 3rd party.

      • ashamedtobebritish

        Um … yes we have, it’s a courts go to when claiming relationship that is uncertain

  3. COOPER, Anne

    Thanks Suess, you have just brightened my morning!

  4. Graeme Kenna

    No, rara avis was the hire car of Boney M

  5. Forensic Incontinence, but no dump, legally speaking of course, I would caution poo pooing the entertainment quotient from an obvious candidate for court jester.

  6. A foolish judge declares a fool a vexing litigant​
    But a wise judge gives a fool a practice direction

    Proverbs 242 Vs 7

  7. Here is an interesting question Andrew …….A mother during court proceedings in Scotland was given the guardian’s report by the sheriff and was told she could look at it but not keep it;As the report contained many accustions that she felt were untrue she wanted to answer point by point and could not do this from memory so she walked off home with the report.
    She was later visited at her home by court officials who arrested her and took her before the sheriff to face contempt charges.
    She said that if she had been a lawyer she would have been allowed to keep it (or a copy of it) and though she apologised she added that at the time she believed that it would have prejudiced proceedings for the sheriff and the LA to have had copies which were denied to her as a litigant in person (who should have been shown special courtesy not the reverse.)
    She has been told to engage with social workers for a week before coming up for sentencing for what the Sheriff described as the worst case of contempt in his experience !
    Does this sound right to you??

    • ashamedtobebritish

      Sorry to jump on as you asked Suess specifically….
      No. No decision maker can make a decision until the person knows the case against them, basic art 6 breach.
      Any decisions he does make , without knowing the laws that bind him, become illegal/void etc etc

      • Though she was able to see and read the document. So not strictly art 6. Maybe Scottish law has some much harsher provisions about document​s than England, but these don’t seem likely.

      • ashamedtobebritish

        You also have the right to defend yourself, unless she has a photographic memory, she’s been denied that right, then facing prison for insisting on her rights being upheld? The judge needs jailing, not her.
        They should have sent her a copy, simple as that.

    • I don’t know much about Scottish law, but in England you can’t insist on a person having a lawyer, so as reported here that would be totally wrong and unfair.

  8. To let someone (a mother) with less (than average education read a long report in legal language making various allegations against her but forbiding her from taking it home to study and answer those allegations seems grossly unfair given that both the judge and the opposing side (The LA) were allowed to retain a copy of this important witness statement to use as they pleased.
    This sort of (thing is now common practice and even worse I remember a case where I was a McKenzie friend and the barrister for the LA came up to the mother five minutes before the court started and gave her some papers saying “here is the local authority position statement,but show it to nobody” I interjected saying “she can show it to me” whereupon the barrister snatched it back from the mum and walked off !!
    I was of course not allowed to speak or protest and the mother did not dare to.In any event she wept in court as she lost her baby……….

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