UNBREAKABLE

A Court of Protection case about whether one of the litigants was able to make their own tape-recordings, and what happens when the Court have finally had enough of volume and timbre of email correspondence.

Re TA Recording of hearings 2021

TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3 (22 January 2021) (bailii.org)

Cobb J dealt with this case, which involved more broadly a woman with Alzheimers and decisions about her future, but specifically with her son, TA, whom it would be fair to say had a difference of opinion with the local authority about these matters.

TA wished to tape record the Court hearings and sought permission to do so. (also raising within his application that he did not consider it reasonable for the Court to record him in the hearings if he were not able to do the same, thus raising the issue in law as to whether an individual has any powers under data protection legislation to prevent that without his consent)

1. By a COP9 application dated 17 November 2020, TA seeks permission to record the court hearings concerning GA. He justifies this on the basis that he has a need, following each hearing, to be able to revisit the issues discussed in court, and that he cannot be expected to take handwritten notes alongside making full representation before the court as a litigant in person. In a further COP9 application purportedly issued on the morning of the hearing (15 January 2021), TA requested further and specific permission to audio and visually record the hearing before me. In the accompanying e-mail (15 January 2021), he said this:

“… under NO circumstances shall I be entering the jurisdiction of the Court and presenting myself before Mr Justice Cobb without making a private recording of the event.
Therefore, either permission is granted or I be prevented from entering the Court’s jurisdiction. I am under no legal obligation to enter the jurisdiction of the Court, unrepresented as a litigant in person, and to then have my voice recorded without my express permission and at the same time prevented from procuring a copy of said recording in clear contravention of the Data Protection Act 2018, and then forced to pay for a transcription of said recording, without access to the actual audio recording itself.
I will no longer be compromised on this matter.”

TA further developed an argument at the hearing based on the hearing being remote – in effect, he was not in the physical Court building, he was in his own home, and thus (a) he should be allowed to do what he wanted in his own home and (b) that the Court were in effect recording him in his own home, thus interfering with his article 8 rights.

At the hearing, and pending my decision on his application, TA advised me that he was not recording the hearing. He expanded his arguments on this application at some length during the hearing. He made the following points:
i) It is in breach of his human rights to be denied the right (“as a free person”) to record conversations; that he has a right to make recordings of anyone entering his “jurisdiction”, by which I understood he meant his home;

ii) He challenges the contention (see 10 below) that he has published recorded information relating to these proceedings in the past, and that by posting material from, or related to, these proceedings on to a private ‘YouTube’ channel he is not “publishing” information and the video clips are not therefore in the public domain;

iii) The Local Authority employees are “pathological liars”, and he has suffered “discrimination” from many judges (“bullied, intimidated and victimised”), and he needs the recordings in order to evidence this;

iv) He has experienced unnecessary delay in obtaining transcripts in the past; the transcripts have been costly, and in any event transcripts “do not capture the whole intonation and the silences in the court”;

v) There is an incongruity between the practices of different courts;

vi) Opposition to his application for the right to record has been driven by a wish to “censor” TA;

vii) He would wish the recording “for my own protection and benefit”.

In developing these points orally, at times TA appeared to suggest that as he was not ‘in court’ and was “outside the jurisdiction of the court”, he could record conversations as he wished. I reminded him that although he was not physically in a court building, he was every bit as much ‘in a court’ on the video platform.

At this point, whilst I can predict what the eventual answer might be, I’m not quite sure how the Judge is going to get there, but as it is a Cobb J judgment you know that we will get an explanation which is clear, succinct and right. Here we go:-

I would like to make three points about this application. First, as to the recording itself, the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies. The 2020 Act introduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which:
i) empower the court to direct that a recording of the proceedings be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings;

ii) create a criminal offence for a person to make, or attempt to make an unauthorised recording, or an unauthorised transmission, of an image or sound which is being broadcast in accordance with the law.

Nonetheless, as Hayden J, as Vice President of the Court of Protection, made clear in his guidance to which I have earlier referred (‘Remote Access to the Court of Protection’: 31.3.2020), the terms of the statutory criminal prohibitions (as adapted) were to be included in every standard order thereafter, accompanied by a penal notice and punishable by contempt proceedings. I have reviewed the orders made in this case since that time, and am satisfied that such orders have indeed from time to time been made and repeated. Furthermore, consistent with this approach, the Court Associate who called the case on before me, on 15 January 2021, made clear in her introduction to the hearing, that “under no circumstances” could the hearing be privately recorded.

Secondly, and in any event, (and as TA himself acknowledged at the hearing), it would be a contempt of court, punishable by imprisonment, for any party to record a hearing without the permission of the judge: see section 9 of the Contempt of Court Act 1981 (‘Use of Tape Recorders’). While I have a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526), I would need to be satisfied that the applicant had a reasonable need to make such a recording. I am far from persuaded that TA can demonstrate such a need; indeed, by contrast, I am wholly satisfied that TA has a very good (I would suggest an extraordinary), grasp of the procedures, the documents and the issues engaged in these proceedings.
I therefore advise, or more accurately remind, TA that while it may not be a statutory criminal offence to record the proceedings or any part of them unless he is authorised to do so, this would nonetheless be a civil contempt, punishable by imprisonment.

The application for TA to conduct his own tape recording was refused.

The secondary matter which arose was the nature and volume of TA’s email correspondence with the Court of Protection court office.

In the latter part of last year, it had come to the attention of HHJ Anderson (one of the two Regional Lead Court of Protection Judges in the North East, and previously the allocated judge for this case) that TA’s conduct towards, and correspondence with, the Court of Protection court office in Leeds had become excessive and may warrant some proscription. On 10 December 2020 HHJ Anderson directed of the court’s own motion that the issue of TA’s communication with the court office be considered specifically by the Court; she invited me to deal with this. HHJ Anderson made an order directing the preparation of a witness statement from the Operations Manager at the Court of Protection court office, and gave TA the opportunity to reply.
The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.
The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation.
I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).
As mentioned above, since the hearing on 15 January 2021, TA has sent two further e-mails copied to the court (and again copying in significant number of others). The e-mail is addressed (as many of his e-mails are) to “Dear Coalition Of My Mother’s Persecutors (COMMP)”. In one, he states, and repeats a number of times, the following narrative:
“You can beat me to my knees, it only makes me stronger. I am unbreakable!! Did you hear me? DID YOU HEAR ME [Local Authority]! I am unbreakable. I am UNBREAKABLE, I AM UNBREAKABLE!!! The strength that lies in my heart is like no other. The determination that lives inside me is equal to no other. Every day, I wake up, I promise myself, I will make it, and I never break a promise I make to myself! I am unbreakable. I am Unbreakable.. I AM UNBREAKABLE!!!”
TA denies that his correspondence with the court has been excessive, inappropriate, or intemperate. He describes the Operations Manager’s written evidence as a “badly drafted pathetic attempt at a fraudulent witness statement”. He does not dispute the volume of his correspondence; he seeks to justify his correspondence, referring inter alia to the fact that there are five separate pieces of litigation in which he is involved, and specifically, further, that:
“HMCTS staff have deliberately destroyed my Court submitted evidence, of a year’s worth of unused medication is marginalised and ignored and refused to be addressed to date. This was a deliberate attempt by HMCTS staff to pervert the course of justice in collaboration with [the local authority] and the Official Solicitor and [the judge], and is a serious criminal offence in law of looking to pervert the course of justice, which no doubt [the Operations Manager] is looking to find ways to get out of by discredit my name in a scapegoating exercise”

It happens from time to time that a Local Authority reach a point with a lay person where the correspondence becomes of a volume or nature where the LA make a decision to stop engaging in it. I’ve never seen this happen with the Court, although of course there is the list of Vexatious Litigants, who are not allowed to commence Court proceedings where there’s some degree of overlap. Occasionally one sees a judgment where a High Court Judge makes polite but clearly wearied reference to the degree of correspondence that they are beseiged with from a particular party to the proceedings.

In my finding, there is no justification for the volume or indeed the tone of much of the e-mail correspondence from TA to the Court which has been presented to me. It is easy to see how those working in the Court of Proceedings court office could have felt easily overwhelmed by the communications from TA. His contact with the court office is and has been wholly disproportionate to the issues in the linked cases; the time taken for the hard-pressed staff to manage this correspondence (and his phone calls) will doubtless have materially distracted them from dealing with the many other Court of Protection cases which require their attention.
I have reminded myself of what King LJ said, albeit obiter, in Agarwala v Agarwala [2016] EWCA Civ 1252; in that case, she was concerned with a business dispute which had been running for almost seven years. In a postscript to her judgment ([71]/[72]), she said this:
“It has taken up countless court and judge hours as both parties, incapable of compromise, have bombarded the court with endless applications, such that [counsel for the appellant] now tells the court the judge has had to make orders that neither party may make an application without the leave of the court. The refusal of either party to accept any ruling or decision of the court has meant that the court staff and judge have been inundated with emails, which they have had to deal with as best they could, with limited time and even more limited resources. The inevitable consequence has been that matters have been dealt with “on the hoof” on occasion without formal applications or subsequent decisions being converted into formal rulings or orders.”
She added:

“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.” (emphasis added).
It seems to me that I can and should adopt here the approach suggested by King LJ, by making orders specifically designed to protect the administrative processes of the Court of Protection generally and to prevent its procedure from being abused. Support for this course is further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ made the following observations as to the scope of this jurisdiction at [35]:
“…the court’s supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt (Attorney-General v Times Newspapers Ltd [1974] AC 273, 293G-294A, 306B). The advent of the Civil Procedure Rules only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants.”
Taking my cue from these judgments, and for the reasons set out above, I propose to make an injunction, in the terms set out at the foot of this judgment, to restrain TA hereafter from communicating with the court office by e-mail and telephone. While this is undoubtedly an exceptional order, it is in my judgment entirely justified by the facts of the case; there is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by TA unless I intervene now with appropriate injunctive relief. In my judgment the order represents a proportionate restriction on TA’s ability to communicate with the court office; he may continue (should he have the need to do so) by sending letters to the court office through the agency of Royal Mail. TA should note, however, my direction that he cannot expect a response from anyone in the court office (which may in fact be by e-mail from the court office if they choose) to his correspondence, if his correspondence with the court office is abusive. While Brooke LJ contemplated that this jurisdiction could or would be exercised by the High Court deploying its inherent jurisdiction, I propose to use the power invested in me by section 47(1) Mental Capacity Act 2005, given that the order is made “in connection with” the exercise of my wider jurisdiction within the Court of Protection. I propose to attach a penal notice to that injunction, so that it may be enforced, if a breach is proved to the required standard, by committal to prison if necessary.