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.)
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’ )