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Appendix 3 case
iv LAM v. UK II. STATEMENT OF FACTS Abridged background 1. This case is referred to ECHR under Article 34 as all the domestic remedies in the UK have been exhausted and a fair hearing has been denied. 2. On the 4 October 2002, the Applicant’s
application for permission to present a Petition of Appeal to
the House of Lords was refused. 4. In order to apply for permission to present a Petition of Appeal to the House of Lords will cost a minimum of £30,000.00. There is no prospect of Leave for Leave to appeal being granted as the history of the judicial system has consistently and systematically breached the Human Rights Convention. Furthermore in the even Leave is granted, it will cost a further £30,000.00 to obtain Leave to have the case heard and then a further £100,000.00 to have the case heard. The Applicant has no means to support these costs as he does not have a job. 5. The cost of legal action in this case is outside the means of the Applicant. Due process in the United Kingdom is disproportionate to the claim and it would not be fair or equitable as well as economic to continue to pursue the matter to petition the House of Lords because of the way the legislation and other rights afforded have been disregarded by the courts and court of appeal. It is the opinion of the Applicant that any further appeal in the UK will be ineffective. 6. There is no existing UK law applicable that shows that the Courts have the discretionary powers to assist the wrongdoer to breach the relevant legislation; in this case Misrepresentation Act 1967, Supply of Goods and Services Act 1982, Unfair Contract Terms Act 1977. 7. As the judgment stands to date a new precedent in the principle of contractual law has been set in the UK. For the first time the courts have accepted: - (i) An Organisation can now advertise their promise of services they identify as promising to provide, but do not have any liability and responsibility when the service is not delivered. (ii) Any liability and responsibility of the organisation to their members can now be transferred to the organisation’s contracted service provider, to whom the organisation paid annual premiums for such a service for their members as promised in their advertisement. The contracted service provider does not have a contract with the organisation’s members nor do the organisation's members pay any premium directly to the contracted service provider for this service. (iii) As a result of this “new” precedent, traders can promise anything in their advertisement without the fear of any liability as long as this promise is supplied by the third party, with whom they have the contract. The UK court has in this instance set a “new” precedent; that the responsibility and duty of the organisation or advertiser is only to obtain money from the public and to introduce a promise such as a service and nothing more. Should the promise not be upheld or in the present case the service not be delivered by their contracted service provider, the trader can escape all liability from the promises made. 8. Giving consideration to the history of the extended
abuse of power by the domestic courts in this case, it is unlikely
the court will follow the rule of law to reach an independent
and impartial judgment. The intricacies of this case (Lam v FSB)
have proven that access to justice in the UK is impossible. Coupled
with the extent to which the costs have already escalated (over
£45,000 for an £20,000 claim) and which if application
were to be made to the House of Lords to appeal would escalate
to over £100,000.00 this becomes an economic burden that
a few have the privilege to afford and as such justice to the
majority is denied. Particularly as the issue of who is the correct
defendant had already been determined by the appeal court, later
overturned by lower court and which a subsequent court of appeal
considered to be all in accordance with court procedures. The
case needs to be referred to an independent and impartial tribunal
and the only avenue available is ECHR. 10. On the 6 October 2000 the Federation, claiming that they were not the correct defendant, and that their Underwriter is the correct defendant succeeded in striking out the action. 11. Upon appeal by the Applicant, on the 12 January 2001 HHJ Overend overturned the decision “The mechanics which are envisaged in resolving disputes all proceed upon the basis that claims will be made on behalf of members by the Federation and they will make the claim against the Underwriters.”(See Bundle B HHJ Overend Judgment Page 15 para D) “in my judgement, for the District Judge to say that the extent of the obligation is merely to introduce Mr Lam to an insurance policy is wrong both in law and in fact” and Order “The Appeal be allowed and the claim be reinstated.” (See Bundle B HHJ Overend Judgment Page 15 para G) 13. On the 25 September 2001 at the trial hearing, in a lower court, the Recorder overturned HHJ Overend’s decision and decided the Federation was the wrong defendant. The lower court delivered this judgment off its own bat without any application or appeal having been made by the Federation against HHJ Overend’s decision in the appeal court. 14. The lower court judge declared in his judgment that “An effort was made to strike out your claim on the grounds that you’d sued the wrong party. One judge said that was absolutely right. Another judge said, “Well, I’m not going to strike the claim out, let the matter be heard.” Now the matter has been heard and I’ve decided that the first judge was right. And if you don’t like my judgment then you must approach the Court of Appeal and ask them for leave to appeal.” (See Bundle B Recorder Moxon-Browne Judgment Page 9 Paragraph G) 15 On appeal by the Applicant, at the court of appeal
hearing on the 4 October 2002, LJ Laws and LJ Stuart Smith upheld
the lower court decision that the Federation was the wrong defendant. 30. The Federation’s insurer had agreed to
reimburse the Applicant for the costs arising through the IR investigation
after the investigation was completed and the applicant had been
acquitted of any fraud. The FSB refused to aid the applicant (their
member) in holding the insurance provider to their promise III STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND OR PROTOCOL AND OF RELEVANT ARGUMENTS 1. It is alleged that in reaching the decision in the domestic court of appeal dated 4 October 2002 the judges were not acting independently or impartially as they ignored issues that by their very nature would have a decisive influence when the decision was delivered. 2. It is also alleged that the validity of the statement in the judgement of 4 October 2002 is subject to challenge by this application as it does not follow the rule of law and principles of law and existing precedents and is inconsistent with established laws. 3. It is also alleged that the judges in this hearing were biased the factual grounds given by the judge were not raised by the Federation in its defence! A judge has no locus standi to raise the defence of fact for a party! Yet, the court of appeal and the Recorder did just that! They thus became the defendant (Federation)! And, they ceased to be judges! In other words, they were, in law, biased judges. 4. Furthermore, apart from the obvious bias shown by the court in the conduct of the hearing, one would question whether the court could in this instance really deduce the judgement that was delivered, particularly when the court did not look at the skeleton argument presented. 5. The Applicant requests the Court to challenge the validity of this judgment and to decide who is the correct defendant in this situation. 6. In this case, the domestic court has abused its court’s power, by acting with lack of independence and impartiality by intuiting terms and conditions that were not there: - (i) HHJ Rucker on the 29 June 2001 stating “Nobody would commit themselves to that. So somewhere I think you must be able to find, I would have thought, or the Judge who tries it, the precise meaning of the terms for that benefit. It cannot just be as simple as that.” (ii) Mr Recorder Moxon Browne (Page 6 para C of his judgment) said “I think that it would, perhaps, have been advisable and may remain advisable for the Federation to make it clear by their promotional literature that what is on offer is the benefit of insurance cover subject to terms and conditions and not an independent and unfettered promise by the Federation to give the support described free of any terms and conditions.” By these words acting in a manner to protect the Federation from any liability arising from the promise the Federation made and still makes even today. (iii) By their actions the UK courts effectively
have assisted the Federation to create a situation where the court
is acting to remove any liability from the Federation arising
from the misleading advertisement and unfair and/or distortion
of the terms in the consumer contract between the Federation and
its members. BREACH OF ARTICLE 6 - Right to a Fair trial (i) The requirement of the provisions of Article 6(1) is the right to be heard, which includes the right to have the opportunity to present the Applicant’s case and know the basis of the case presented by the other side, as well as the right to a fair hearing. The European Court has held that a fair hearing includes giving reasons for the decision. (Hadjianastassion v Greece (1992) 16 E.H.R.R. 219. It also includes the concepts of equality of arms and the right against self- incrimination. (ii) The core of the matter is to decide the liability, if any, of the Federation under the terms of contract between the Federation and its members. The UK court of Appeal (4 October 2002) and the lower court (25 September 2001) diverted the issue into a claim that the Federation is the wrong defendant and dismissed the case. The fact that a previous appeal court on the 12 January 2001 had already determined that the Federation was the correct defendant by stating “because there isn’t a contract between Mr Lam and the insurance company” (Page 15 para G of HHJ Overend’d Judgment) was ignored by both the county court and court of appeal. Without any application being submitted by the Federation to challenge the decision of the appeal court dated 12 January 2001, neither the lower court or the court of appeal have the jurisdiction to overturn HHJ Overend’s Judgment, but they did. 8. By analysis of the judgment, it can be seen that the facts of the case have been completely distorted by court of appeal. The judges have deliberately diverted the basis of the Applicant’s claim, thus obstructing the course of justice, abusing court’s power and not acting independently or impartially. 9. Analysis of the judgment of Court of Appeal dated 4 October 2002 The manner in which the judgment has distorted the facts of the case is no longer a surprise as this pattern of deliberately given misleading judgments is a widely spread practise in UK for the reason that judges are not held accountable. Para 2 of the Judgment 3. By stating “Abbey first declined to meet the applicant’s claim at all, relying on a provision in the insurance policy, but then paid out some small sum.” The truth is Abbey Legal (the Federation’s insurance provider) did not pay any money, not even a small sum. However the Federation did put the costs incurred towards two of the consultants into court as settlement, but the costs incurred towards the third consultant they continued to reject. The court also failed to give consideration to the fact that Abbey (the Federation’s insurance provider) at first declined to meet the Applicant's claim but later, after the satisfactory conclusion of the IR investigation and the absolving of the Applicant of any fraud, agreed to meet the costs and then reneged. 4. As for the court to state “rather than go to arbitration (which I think was provided for) the applicant sued the respondent Federation.” This denies the right of the Applicant for legal remedy and is in violation of the Applicant’s human rights and EU Directive 93/13/EEC as arbitration is not legally binding and that in the event if the Applicant does not agree with the arbitration decision, the Applicant cannot take legal action against the insurer. EU Directive 93/13/EEC Annex Terms referred to in Articles 3(3)1 (q) states: - terms which have the object or effect of (q) “excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.” 4. The basis of the claim was clearly stated in this paragraph: - “Did the applicant have a contract with the Federation such that the Federation were to support him in relation to any Inland Revenue in-depth investigation to the tune of £35,000 or £50,000 or was the respondent Federation’s obligation limited to arranging insurance cover of the sort that was put in place?” However the court of appeal did not address this issue but diverted from it as detailed below. Para 3 of the Judgment Para 4 of the Judgment In addition to the above explanation of the misapplication of the Swain case, the court of appeal was fully aware of another important factor regarding the Master policy. I quote LJ Stuart-Smith (page 15 of transcript) “there must be policy somewhere.” And on page 16 LJ Laws said “we haven’t got the policy, so we don’t know what the terms in relation to assessment of premium are.” Confirming the court has not seen a copy of the policy which is pertinent to the claim. LJ Laws further stated “The unfortunate thing is, we haven’t got the policy. But as my lord says, there must be a policy.” It was explained to the court that the certificate of insurance policy that was given to members was a product that the Federation purchase from their insurer. LJ Laws said, “That’s not how insurance works, I’m afraid.” Further confirmation is on page 17 LJ Stuart-Smith said, “as my lord said we haven’t got the policy, we don’t know what the relations for the premium were.” In fact the court were fully aware that the Certificate of Insurance was the master policy. The major difference between the Certificate of Insurance between the solicitors and their insurer as compared with the Certificate of Insurance supplied by the Federation is simply the solicitors pay for the Certificate of Insurance which binds them as a contract as in the Swain case. But the Certificate of Insurance given by the Federation to all members is a contract that was bought by the Federation to fulfil their promise, thus does not create a contract between members and the Federation’s insurer. Therefore Mr Recorder Moxon Browne was wrong in law and in principle by applying Swain case in this situation and the court of appeal wrong in law and in principle to uphold the judgement. Para 5 of the Judgment Para 6 of Judgment Para 8 of Judgment (i) The court of appeal deliberately concealed the full details and thus the real meaning behind the Order of DJ Meredith by simply stating “an order to strike out the claim” rather than stating the order in full “an Order to strike out the claim because the Federation is the wrong Defendant”. (ii) The appeal court statement “He [HHJ Overend] was only concerned to hear the appeal from the District Judge’s strike out order. He was not dealing with an application for summary judgment or anything of that kind. So far as he expressed a concluded view he went beyond his remit. The effect of his orders setting aside the strike out was only that the action would have to be heard on its merits by another judge on another day, as indeed it was before the Recorder.” is a deliberate attempt at obstruction of justice by the court because this summary of the judgment does not reflect the truth or the facts. HHJ Overend did not set aside the strike out. HHJ Overend overturn DJ Meredith’s first Order to substitute the Federation’s insurer as the Defendant. (iii) It is important that the Court recognized the Order of DJ Meredith was to strike out the claim because the Federation was the wrong defendant and that she also requested the Applicant to reapply substituting the Federation by the Federation’s insurer. (iv) After seeing the documents to support that the only contract existing in this claim is the contract between the members and the Federation HHJ Overend reached his conclusion and stated “The mechanics which are envisaged in resolving disputes all proceed upon the basis that claims will be made on behalf of members by the Federation and they will make the claim against the Underwriters.”(See Bundle B Page 15 para D of the judgment) “in my judgement, for the District Judge to say that the extent of the obligation is merely to introduce Mr Lam to an insurance policy is wrong both in law and in fact” and Order “The Appeal be allowed and the claim be reinstated.” (See Bundle B Page 15 para G of the judgement) (v) The case was then heard before DJ Meredith for a second time, and she made an Order on the 19 April 2001 that “The question whether the defendant [Federation] had a liability to provide the service alleged to the claimant [applicant] and if so whether and how that liability was qualified or restricted be tried as a preliminary issue in the Trial window.” DJ Meredith accepted the Federation as the correct defendant and that it was now for the court to determine the extent of liability. The question of whether the Federation is the correct Defendant had been settled, no longer in dispute. For the court of appeal to accuse HHJ Overend as having gone beyond his remit by concluding that the Federation is the correct defendant, is totally biased and insane. In this instance, HHJ Overend could not overturn DJ Meredith’s Order without giving a judgment confirming that the Federation is the correct defendant. (vi) It is interest to note that because DJ Meredith on the 19 April 2001 directed the case to go forward to be heard on liability, the Federation’s solicitor made the accusation that DJ Meredith did not give a reasoned judgment, (See Bundle A appendix 5 Appellant’s notice para 27) when in fact DJ Meredith did give a reason judgment. (See Bundle A appendix 6 letter dated 24 June 2001 from DJ Meredith) Para 9 of Judgment Para10 of Judgment Para11 of Judgment The court statement “For my part I am entirely content to accept and indeed would accept that the appellant would have been entitled to make a claim against the insurers” is very elusive statement. Of course the applicant is entitled to make a claim against the insurer. The Applicant did make a claim against the insurer. But what happens when the insurer promises to reimburse the costs and then reneges, where does the Applicant (member) go for redress? The court of appeal ignored this part of the equation. Once again an issue, a very pertinent issue to the situation, skilfully diverted by the courts into seeming something irrelevant. As for the court to state “I am entirely clear that the words of the flyer or leaflet which the appellant saw before joining the respondent did not give rise to a contractual obligation the respondent to indemnity the appellant without qualification against any expenses incurred by him the course of the Inland Revenue investigation” is another elusive statement by the court. This has never been a case making a claim against the Federation to indemnify the claim without qualification. The purpose of the claim was to ask that the court decide, after seeing the supporting evidence, if the claim is just and reasonable. It has never been a claim based on the fact that, because of the leaflet, the Federation must pay whatever the costs of the investigation amounted to. The application was to ask the court to justify the extent of work necessitated by the extended convolutions of the IR investigation brought about by the intransigence of the IR inspector and to adjudge to what extent the Federation should reimburse such costs vis a vis their promise. As stated on page 6 of the transcript “the Federation have every right to look at what is involved what work has been carried out and to investigate whether it is a proper claim for that work.” Para12 of the Judgment For the court to state “the provision to the appellant of what was plainly insurance documentation at the time of his joining the respondent demonstrated that his membership was on terms that that was the benefit involved.” is another biased statement made by the court of appeal. Even in the event all members were told that the benefit was covered by the certificate of insurance which is given by the Federation, this does not give any member the right to sue the insurer when the insurer promises to reimburse the costs and then reneges. The only legal action then available to the Applicant (the Member) to recover his costs is to pursue action against the Federation, with which members have a contract, and not the insurer. For the appeal court to state “We are only concerned with the claim to recover without qualification all of the expenses that had been incurred in the course of the Inland Revenue investigation.” is gross abuse of court’s power. The court in this instance has of its own volition changed the basis of the claim from whether the Federation is the correct defendant into a claim to recover costs without qualification. The occurrence of diversionary tactics and practices such as these are wide spread among the UK judiciary. For example in another case the domestic courts diverted a claim based upon abuse of power by officers into a claim based on grant of planning permission matters purporting that officers were carrying out statutory function and duty, and so their actions attract immunity. The fact that there was never any application for planning permission, nor any official planning decision made concerning the building in question, was repeatedly ignored by the courts. Para13 of the Judgment 10. Before they made an order, on the basis of the ground that they themselves had raised, LJs Laws & Stuart-Smith did not give the Applicant notice of their intention to base the order on the un-pleaded ground. Their failure to give notice is contrary to Article 6. By failure to give notice, they failed to give the Applicant an opportunity to be heard on the un-pleaded point! See: De Geouffre de la Pradelle v. France (A/253-B(1992) unreported. Had the judge given the Applicant an opportunity to be heard on the matter, the Applicant would have disabused them on that point. 11. Furthermore, the court of appeal was requested to decide if The Recorder Mr Moxon Browne was right to conclude the Federation to be the wrong defendant. The Recorder’s judgment was upheld, but the key issue as to whether the Federation was the correct defendant was not properly addressed, as can be seen from the judgment. Evasiveness by the court in dealing with the issue at hand and deliberate attempts by the court to avoid answering questions raised are surely practices the Court cannot allow to continue, when the commitment of the Council of Europe is to the principles of liberty, democracy, respect for human rights, fundamental freedoms and the rule of law. 12. The decision made by LJs Laws & Stuart-Smith refusing to investigate the ground that the Lower Court had no jurisdiction to over turn a higher court decision was contrary to Article 6 of the Human Rights Act. It shows that the judge was not impartial! The factual ground given by the judge was not raised by the Defendant in its defence! A judge has no locus standi to raise the defence of fact for a party! Yet, LJs Laws & Stuart-Smith did just that! They thus became the Defendant! And, they ceased to be judges! In other words, they were, in law, biased judges. See: Langborger v. Sweden (1990) 12 EHRR 416 at para 32 13. The decision thus falls within the Wednesbury unreasonableness i.e. "The decision is such that no person or body properly directing itself on the relevant law and acting reasonably could have reached that decision": Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] K.B. 223; [1947] 2 All E.R. 680 per Lord Green M.R. Statements made by the domestic courts which show that they are no longer impartial 14. In this case it can be shown that the domestic court has abused its power, by acting with lack of independence and impartiality in the following manner: - (i) HHJ Rucker on the 29 June 2001 stating “Nobody would commit themselves to that. So somewhere I think you must be able to find, I would have thought, or the Judge who tries it, the precise meaning of the terms for that benefit. It cannot just be as simple as that.” (ii) Mr Recorder Moxon Browne (page 6 Para c of the judgment) when he said “I think that it would, perhaps, have been advisable and may remain advisable for the Federation to make it clear by their promotional literature that what is on offer is the benefit of insurance cover subject to terms and conditions and not an independent and unfettered promise by the Federation to give the support described free of any terms and conditions.” By these words acting in a manner to protect the Federation from any liability arising from the promise the Federation made and still makes even today. (iii) LJ Stuart-Smith (Page 15 of transcript) said “there must be policy somewhere.” When there is no such a policy. And on page 16 LJ Laws said “we haven’t got the policy, so we don’t know what the terms in relation to assessment of premium are.” Confirming the court have not seen a copy of the policy which they consider pertinent to the claim and LJ Laws further said “The unfortunate thing is, we haven’t got the policy. But as my lord says, there must be a policy.” when in fact there is no such policy document. When it was explained to the court that the Certificate of Insurance that was given to members was a product that the Federation purchase from their insurer. LJ Laws said “That’s not how insurance works, I’m afraid.” Further confirmation is on page 17 LJ Stuart-Smith said “as my lord said we haven’t got the policy, we don’t know what the relations for the premium were.” (iv) On page 13 of the transcript LJ Stuart-Smith did say “I suppose another possibility would be that plainly there’s a contract between the member and the Federation. A term of that contract is that the Federation procure insurance cover. If then far from the claim being made the insurers unjustifiably renege, the Claimant, the member’s claim’s not against the insurer but against the Federation whom, however, would of course be able to say, “Well, the insurers were entitled to rely on exclusion clause so and so.” That ….the, the defect with that analysis is that it doesn’t give the member a right to, of legal redress, against the insurance company. He has to go against the Federation.” (v) The statement (iv) above is basically the basis and the merit of the Applicant’s claim in the UK courts. However due to bias of the court, the possibility of this assumption which can be supported by various documents and which is consistent with established case law and rules of law, was ignored by the court of appeal. (vi) Page 5 para A of the Recorder Moxon Browne’s judgment states “In my judgment these arrangements can be analysed as a matter of law by reference to a contract between insurers and the Federation, whereby insurers bind themselves to provide members with the insurance described on payment of the requisite premiums, and secondly, a contract between the insurers and each member, whereby the insurers bind themselves to indemnify the member in terms of the policy.” The Recorder was aware that the premium was paid by the Federation to their insurer thus forming a contract with their insurer and that the insurer agrees to indemnify the members only at the request of the policyholder, the Federation. There is no binding contract between the insurer and members. (vii) Page 6 para G of the Recorder’s judgment states “For the purposes of the case I am entirely happy to assume that repudiation was ill-founded. If it was, and I stress if it was, Mr Lam’s remedy was to refer the matter for arbitration, pursuant to General Condition 1 of the policy, which is precisely what he was advised to do in a letter from Abbey to him, written as long ago as the 15 May of 1995, which is at page 394 of the agreed bundle.” (viii) The statement (vii) above is biased in two aspects: - (a) Under EU Directive 9313/EEC the Applicant cannot be forced to take arbitration when there is other legal remedy. (b) Abbey (the Federation’s insurer) is not the correct defendant because there is no contract between the Applicant (a member) and Abbey. This claim is based on the Federation’s insurer’s promise to reimburse the cost incurred by the Applicant. The claim for indemnity was accepted ‘after the event’ in full knowledge of all that had gone before and the conditions of policy neither relevant nor under dispute therefore are not applicable to this issue. (ix) LJ Stuart-Smith (page 15 of transcript) states “there must be a policy somewhere.” When in fact there is no such policy. And on page 16 LJ Laws said “we haven’t got the policy, so we don’t know what the terms in relation to assessment of premium are.” Confirming the court has not seen a copy of the policy. A fact which is vital to the issue. LJ Laws further states “The unfortunate thing is, we haven’t got the policy. But as my lord says, there must be a policy.” The truth of the matter, as was repeatedly explained to the courts, is that there is no other master policy. The copy of Certificate of Insurance is all the ‘policy’ that was ever given to all members and is a product that the Federation purchase from their insurer. LJ Laws said, “That’s not how insurance works, I’m afraid.” Further confirmation is on page 17 LJ Stuart-Smith said, “as my lord said we haven’t got the policy, we don’t know what the relations for the premium were.” In this instance, the court reached its decision wrongly assuming that a further master policy exists. (x) On Page 22 of transcript Recorder Moxon Browne said “I’m inclined to assume in this case that the underwriter’s refusal to meet your claim in full was wrong. I don’t know whether it was or not, but it would take a long time to find out, and I’m prepared to assume that in your favour. The question, the question in this case is, is who owes you the money? Is it the insurers, or is it, is it the Federation, that’s the issue.” This statement was not considered by any judges in their judgements. 15. It is obvious that the court of appeal of 4 October 2002 did not act independently or impartially. Despite it being repeatedly and clearly explained to the court by the Applicant, with full supporting evidence, that there is no master policy between the Federation and their insurer, and despite confirmation by the Federations’ own counsel that there is no other master policy the court refused to believe this and delivered its judgment according to its own suppositions. 16. Despite the court having been presented with a lengthy brief explaining that the Federation purchases a contract service provided by Abbey Legal and gives this service to members as one of the attractions of membership in order to recruit members, as explained in page 16 of transcript “it is a product they’ve bought.” The court refused to accept this. 17. In doing so, the domestic court forced the basis of the claim from a simple contractual dispute into a third party liability, creating a jus quaesitum tertio . Such a relationship is not recognised in UK law. 18. In this situation there has been a clear breach of Article 6. The Applicant was not given a fair trial. The decision reached by the domestic court of appeal is biased. The Applicant alleges that the court of appeal was not acting impartially. The court of appeal has no power to assume as it did, especially in face of the denial of its existence by both the Applicant and the Federation’s own legal representative, that there be a master policy between the Federation and their insurer. 19. The Applicant submits that he has been repeatedly denied the opportunity to make known the evidence needed for his claim to succeed i.e. Despite the inability of the Federation to produce the master policy and or contract between the Applicant and the Federation’s insurer the courts have refused to acknowledge that there is no contract between the Federation's insurer and the members but continued to insist they must exist. The Applicant also submit that he was not given the opportunity to comment on the evidence adduced by the court of appeal in reaching its judgement (See Krcmar and Others v. The Czech Republic Application No. 35376/97 Judgement 3 March 2000) that the Applicant should be given the opportunity to comment on the documentary evidence adopted by the domestic courts that the Court based its decision on, which was not submitted by the Applicant. 20. In this case, the applicant not only has not been allowed to comment on the evidence adopted by the court of appeal but also the ‘evidence’ adopted by the court of appeal in their judgement does not actually exist. 21. By acting in this manner the court of appeal could not possibly be acting independently or impartially, so obviously it was not a fair hearing. The Applicant also submits that he wishes to challenge the judgement of the domestic court of 4 October 2002. The European Court has held that a fair hearing requires “equality of arms” Dombo Beheer v Netherlands (1993) 18 E.H.R.R. 213 para 33. “Each party must be afforded a reasonable opportunity to present his case-including his evidence-under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent”. The applicant has repeatedly requested and would still like to see a copy of the master policy that that court of appeal claims must exist and also the contract between the Applicant and the insurer. 22. The Applicant also submits that the domestic court failed to give consideration to the fact that Mr. Recorder Moxon Browne was fully aware of the schedule set for trial on that date, which was to decide the liability issue, which he ignored and refused to discuss; and which was not to decide who is the correct defendant as this had already been decided by a previous court, but which he took it upon himself to do. BREACH OF ARTICLE 13 - Right to an effective remedy 23. The Applicant submits that an appropriate means of obtaining proper court procedure in the determination of the question who is the correct defendant was not made available; because the decision of the court of appeal dated 4 October 2002 was reached by adducing a document which does not exist, abusing the court’s power and acting without authority by assuming there was such a document. BREACH OF ARTICLE 14 - prohibits discrimination 24. Article 14 prohibits discrimination in the enjoyment of Convention Rights, such as treating property owners differently from others in the same category. Pine Valley Developments Ltd v Ireland (1992) 14 E.H.R.R. 319. The Applicant alleges that because he was litigant in person, he therefore was discriminated from access to justice. See Page 9 Para D of Recorder’s Judgement states “You chose to sue the Federation, and you’ve acted throughout without legal advice. It’s been said by the Federation they’re not the right party, that’s been their position all along, and we’ve now got a decision from me that they were right and you were wrong.” 25. In Conjunction with Article 6, the Applicant submits that the denial of his rights was not proportionate to the legitimate aim of preservation of the rule of law; that the Court of Appeal failed to treat the Applicant equally with the legal representatives. 26. The Applicant also submits that the Court of Appeal has discriminated against him forcing the basis of his claim from that of contractual dispute between members and their Federation into a third party claim, between embers and the Federation’s insurers, with whom members have no contract. BREACH OF ARTICLE 17 - abuse of court power 27. The Applicant submits that a denial of a fair hearing to him by the diversion of the basis of his claim and the distortion of the facts of the case, amounts to interference in the course of justice by the domestic court; and is an abuse of the court’s power. Equally the domestic courts also have abused their power by purporting there to be a contract between the members and the Federation’ insurer when there is no contract between members and the Federation's insurer. 28. The Applicant also submits that the domestic court perpetrated a denial of fair hearing to the Applicant and that the court of appeal abused its powers by introducing a defence in that purporting there to be a master policy between the Federation and their insurer detailing their liability, when there is no such a document in existence, which even the Federation had not stated as part of their defence. 29. The Applicant submits that the domestic court perpetrated a denial of a fair hearing to the Applicant and that the court of appeal abused its powers, and aided and abetted the wrong, by allowing and supporting the lower court’s buse of its power in allowing the case for trial to have be changed from liability issue into an issue of who is the correct defendant, despite no application to do so having been made and the issue having already been determined by the previous appeal court. Relevant domestic Laws and authorities 30. The Applicant is led to believe that no similar case has yet been brought to the Court’s attention therefore there are no relevant laws and authorities. This is a “new precedent” introduced by the domestic court of appeal. The Applicant relies on the Rule of Law, Law of Natural Justice and the Essence of Human Rights. 31. However the Applicant would like to bring to the attention of the Court the general principles of law as follows: (i) The Court should give consideration to the fact that for the court to exercise such discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the courts exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. (ii) Existing Points of law and principles of law regarding contractual laws Any judgement not based on the principles of law cannot be upheld, and in his instance there clearly is a contract between the Applicant and Federation. The domestic courts took it upon themselves to rewrite the principles unpinning contract law, by giving judgment that the Applicant’s action against the Federation is against the wrong party, despite the fact that a contract between the Federation and the Applicant does exist; namely (i) offer and acceptance, (ii) agreement supplied by consideration and (iii) contractual intention to create legal relationship. In this case the Applicant had fulfilled the basic contract requirements namely: (i) offer and acceptance, (ii) agreement supplied by consideration and (iii) contractual intention to create legal relationships with the Federation. The Applicant has not paid any money directly to the Federation’s insurer nor has entered any contract with the Federation’s insurer. In Cosgrove V Horsfall (1945 C.A.), the court ruled that the driver was not a party to the licence or contract, and so could not rely on its exemption clause. The courts are hesitant to expand liability to third parties for economic loss where the primary duty undertaken is a contractual duty to another (Clerk & Lindsell 1-09). The Judgements of the House of Lords in Smith v Bush [1990]1 A.C. 829 and in White v. Jones [1995]1 AllE.R.691 make it clear that liability in tort to a third party for economic loss occasioned by a breach of contract with another can arise, but any such claim must be treated with caution. (Clerk & Lindsell 1-09) (iii) HRA 1998 Contrary to Article 6 and Article 17 of Human Rights Act 1998, Mr Recorder Moxon Browne denied the Applicant a fair hearing, making a decision by misapplication of the test (Swain v Law Society). Despite being asked to request the Federation to produce the "terms and conditions" that the Federation repeatedly claim exist between the Applicant and the Federation, Mr Recorder Moxon Browne failed to do this even though the evidence requested does not in fact exist, and its existence or non existence is highly pertinent to the claim. Mr Recorder Moxon Browne acted in a biased manner by forcing a contract to exist between the Applicant and the Federation’s insurer when there is no contract between the Applicant and the Federations’ insurer and thus acted in breach of Article 17 and thereby violating Article 6.1 of the HRA 1998. The court (Mr Recorder Moxon Browne) denied the
judgement of the previous courts (HHJ Overend and confirmed by
D J Meredith) that the Federation was in fact the correct defendant
and ignored the procedural stage at which the case was referred
to him with the remit to decide on extent of liability and quantum.
Instead Mr Recorder Moxon Browne took it upon himself to return
to the issue of correct defendant, and insisted that the Federation
was not the correct defendant and forced into the equation the
terms and conditions of an insurance agreement between the Federation
and its insurer as being terms and conditions controlling the
relationship between the Federation and its member. At the same
time forcing these terms and conditions to be in some way applicable
to qualifying the promise made to the members in the Federation’s
promotional literature and further forcing upon the Applicant
that his only remedy, when the Federations’ insurer renagued
on their agreement to reimburse the costs the Applicant incurred
in clearing his name in the extended IR investigation of his business
affairs, was to go to arbitration with the Federation’s
insurer; even though there is no contract between the Applicant
and the Federation’s insurer (for reasons explained in detail
elsewhere) and the Applicant has no locus standi in any arbitration
only the Federation and the Federation vis a vis David Dexter
et al had already made it clear they would not support him. Further
more the Federations’ insurance provider had refused to
agree to go before the insurance Ombudsman for arbitration. Thus
for the court to force the applicant to arbitration with the Federations’
insurance provider as being his only remedy, especially under
these circumstances, the court has denied the applicant effective
remedy, as expressed in the Article13 of the ECHR to which UK
is a signatory. 32. Regarding the Certificate of Insurance, it states “Whereas the Policyholder has supplied certain information to Underwriters which is hereby agreed to be the basis of this contract and is deemed to be incorporated herein for the consideration of the premium specified in the Schedule.” in which the policyholder is the Federation and “this contract” is the contract between the Underwriter and the Federation. (See Bundle A appendix 14, certificate of insurance page 1) 33. It is important to note the Certificate of Insurance also states “Now we the Underwriters hereby agree to the extent and in the manner herein provided to indemnify on behalf of the Assured at the request of the Policyholder legal Expenses as specified in this Certificate and its Schedule in connection with the business activity of the Assured.” and this protection cover is administered by Abbey Legal protection. (See Bundle A appendix 14 certificate of insurance page 1) 34. Nowhere does there exist a contract between Members and the Federation to stipulate that the service provided and the indemnity to any claim is "subject to the terms and conditions of the certificate of insurance" and forms terms and conditions between Members and the Federation. 35. It is important that the Court recognised a contract is formed between members and the Federation upon joining the Federation. Membership fees are paid directly to the Federation by direct debit. (See Bundle A appendix 15, direct debit- member’s application form) 36. In order to fulfil their promise regarding IR investigations the Federation provide a contracted service provider (the Federation’s insurer) for the members. The promise made by the Federation is enclosed. (See Bundle A appendix 13, advertising literature) 37. There is no contract between members and the Federation’s insurer. Only the Federation have the power to alter any conditions that attached to each member and this can be demonstrated in the letter dated 7 February 2002 from the Federation to the Applicant. (See Bundle A appendix 9, letter dated 7 February 2002) 38. Within the advertisements promoting membership of the Federation, there are no conditions or qualification attached to the promises made. (See Bundle A appendix 13, advertising literature) Join the FSB and get these benefits free! is the actual promise that is made. 39. The Federation ensure their claims, particularly those that feature prominently in advertisements, are both worded to reflect in full the point that they wish to make about the service and promotion that they do not require qualification. The Federation obviously worries that any qualification in this advertisement may have a negative and adverse effect on recruiting new members. 40. It is well established law that unless the advertisement is not intentionally to give unconditional cover, there will always a claim that requires qualification as in O’Brien v MGN Ltd Law Report The Times August 8th 2001 Lady Justice Hale said that the contract was made on July 3 and was accepted by the claimant when he telephoned to claim his prize. The contract thus clearly incorporated the term “normal Mirror Group rules apply”. It made no difference whether the claimant actually read or paid attention to them. In the particular context of the game, the newspaper had done just enough to bring the rules to the claimant’s attention. There was a clear reference to the rules on the face of his card and they could be discovered from the newspaper office or from back issues of the paper. There was nothing outlandish about the rules and indeed it would be surprising if there had been no protection of the lines of rule 5. But the Federation have never qualified their promise anywhere, neither on the promotional leaflet nor in their membership memorandum. It is actually unconditional and unfettered. Other relevant legislation 41. The Applicant also contends that for the domestic court to deny their request for a fair hearing is in direct violation of Articles 20, 21, 41, 42, 47, 53 and 54 of Charter of Fundamental Rights of the European Union. 42. The Applicant also refers to Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 43. The Applicant also refers to the UN Report of the Special Rapporteur on the independence of judges and lawyers, Dato'Param Cumaraswamy, submitted pursuant to Commission on Human Rights resolution 1995/36 In particular the principles I, V and VI as laid out in Report of the Secretary General of UN prepared in accordance with Commission resolution 1996/13 with the comments received. 44. Universal Declaration of Human Rights, particularly Articles 7, 8 &10 45. The Applicant also relies upon EC Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising. 46. The Applicant also relies upon EC Directive
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
16. The Final Decision was given on the 4 October
2002 by the court of appeal. The nature of the application was
to challenge the lower court decision – requesting the domestic
court to overturn the lower court judgment dated 25 September
2001 which states that the Federation is not the correct Defendant
when in fact the Federation is the correct Defendant. Judgment
was upheld and leave to appeal refused. On the 6 October 2000 the Federation, claiming that they were not the correct Defendant and their Underwriter as the correct Defendant, succeeded in striking out the action. On 12 January 2001 upon appeal by the Applicant, HHJ Overend overturned the decision after asking the Respondent’s Counsel “Well, Mr Lam had a contract with the Federation and in doing so he made reference to attracting new members. The advertising which he referred to has got absolutely no reference at all, as is clear to an introduction to an insurance policy in relation to tax. What it says is, and I read, ‘The Federation of Small Businesses, a protection group. Join the Federation and you get the following benefits free.’ I miss the first box and I go to the second box, ‘Tax. Payment of Legal and accountancy costs of up to £50,000 in dealing with an in depth Inland Revenue investigation.’ Can you [asking Mr Bailey, the Respondent's Counsel] find any other reference in that advertising documents to the qualification of the benefit being, ‘you will be provided with the benefit of an insurance policy which will provide the, which will be the extent of your, your benefit, provided you comply with the terms of that policy.’ Is there anything, is there a shred?” Mr Bailey answers “No.” (See Bundle B Page 8 para C of the transcript) In HHJ Overend’s judgement dated 12 January 2001 page 15 para D “The mechanics which are envisaged in resolving disputes all proceed upon the basis that claims will be made on behalf of members by the Federation and they will make the claim against the Underwriters.”(See Bundle B) On the 18 April 2001 before DJ Meredith, it was concluded that the documents relating to the Applicant’s complaint against the IR have nothing to do with the claim and the Applicant need not make any further disclosure, and also that whether and how the Federation’s liability was qualified or restricted be tried as a preliminary issue. The Federation refused to accept this and on the 29 June 2001, successfully applied for an order to overturn DJ Meredith’s Order by stating in their arguments in support of grounds paragraph 27 that “the district judge did not give a reasoned judgement about her decision appealed against.” (See Bundle A appendix 5) Whilst in fact the District Judge did give a very reasoned judgement in her decision, as confirmed by the Court’s letter dated 24 June 2001. (See Bundle A appendix 6) After obtaining the Order in the Federation’s favour, the Federation then agreed to have a split trial and also said that they did not want any further disclosure of documents. In their re-amended statement of defence, the Federation continued to rely on the terms and conditions of the insurance policy as if they were the terms and conditions between Members and the Federation. This despite DJ Meredith in court had directed that the Federation should answer the points raised in the statement of claim and remove those paragraphs relating to terms and conditions of the policy, (which they have never done) and that there be a preliminary trial to determine if there is in fact any qualification to the contract between the Applicant (Member) and the Federation. This Order has been ignored. At the hearing on the 29 June 2001 HHJ Rucker (page 15 para E of full hearing) reintroduced the insurance policy stating “what is being argued about is whether or not you were excluded from this policy because you brought the investigation on yourself. That is what this case is all about.” Yet at the hearing HHJ Rucker did not dispute the Federation being the correct defendant. Unfortunately HHJ Rucker chose to believe the inevitability that there must be terms and conditions between Members and the Federation, as he considered it would be impossible for any organisation to give a “blanket” cover. In His Honour’s own words “Nobody would commit themselves to that. So somewhere I think you must be able to find, I would have thought, or the Judge who tries it, the precise meaning of the terms for that benefit. It cannot just be as simple as that.” The dispute regarding the Federation not being the correct defendant had already been settled three times previously and it was not an issue to be raised at this time. This Trial hearing was supposedly only to concern itself with whether or not the insurance policy terms and conditions, that the Federation repeatedly attempts to rely upon, are appropriate given the nature of the claim against them. On the 25 September 2001 before Mr Recorder Moxon
Browne, the court applied the Swain v Law Society test. The court
did not give any consideration to the fact that in November 1975
a contract was made between the Law Society and insurers for the
provision of insurance in accordance with the scheme. A further
contract entered into by the Law Society in May 1976 provided,
inter alia, for a firm of insurance brokers to be appointed brokers
to the Society for various purposes including the indemnity schemed,
and that a portion of the commission earned by them from insurers
would be paid to the Society. The court failed to give consideration
to the fact the Federation does not have a contract with a broker
for the purpose of commission nor is the contract between the
members and the insurer. In this situation, the Federation is
not acting as an agent for receiving commission. Further in Swain v The Law Society, Lord Brighman said “the master policy is a contract between the insurers and the Law Society under which the insurers bind themselves to provide solicitors with insurance on the terms of the certificate of insurance on payment of the appropriate premium, and to provide insurance for all solicitors without payment of premium. The certificate of insurance evidences a contract between the insurers and the named solicitors under which the insurers bind themselves to indemnify the solicitors and all others who come within the definition of the assured.” Mr. Recorder Moxon Browne concluded that, “In my judgment, if the position of the Law Society is changed to the position of the Federation and the position of the solicitor is changed to the position of the member that analysis applies aptly to the situation that we have in the present case.” Mr. Recorder Moxon Browne misapplied the test on three occasions. Firstly, Mr. Recorder Moxon Browne failed to give consideration to Lord Brighman’s judgment “the insurers bind themselves to provide solicitors with insurance on the terms of the certificate of insurance on payment of the appropriate premium.” was specifically relating to conditions that the premium paid by solicitors. In the present case, members do not pay any premium directly to the insurer nor is there any mention by the Federation that a certain percentage of the subscription is paid to the third party ie insurers. “Join the Federation and get the following benefits free” is what they write. Secondly, Mr. Recorder Moxon Browne failed to give consideration to Lord Brighman’s judgment stating “and to provide insurance for all solicitors without payment of premium.” Which specifically refers to the fact that the Law Society does not pay any premium towards the policy. Whereas in the situation between the Federation and the Members, the Federation alone pays the premium to the insurer. Thirdly, Mr. Recorder Moxon Browne failed to give consideration to Lord Brighman’s judgment that “The certificate of insurance evidences a contract between the insurer and the named solicitor under which the insurers bind themselves to indemnify the solicitors and all others who come within the definition of the assured.” Which specifically refers to the fact that the certificate of insurance evidences a contract between the insurer and the named solicitors only. For all others who come within the definition of the assured it was only for the insurer to bind themselves to indemnity only and not a contract between them. Furthermore Mr. Recorder Moxon Browne also misapplied
Swain v Law Society in the following manner: (ii) The Law Society in this instance was acting as an agent; collecting commission by introducing the insurance policy to the solicitors of which the Law Society is the policyholder. The Law Society informed its member and requested specific amounts paid directly to the insurers. (iii) The Law Society does not advertise that by joining they (the new members) will be eligible for various benefits. (iv) There is also a distinct difference between the Law Society as the policyholder compared with the Federation as the policyholder;- The Law Society as the policyholder ensured the conditions met the statutory requirements but did not purchase or pay for the policy as a product. Solicitors paid a specific amount in premium for insurance cover, thus creating a contract between the member and the Insurers (v) On the other hand, the Federation as a policyholder paid for a product, namely the policy cover, for the purpose of offering benefits to its members to make a profit (increased membership). At no time were the members asked to pay any premium to the insurance company for insurance cover. (vi) Because of the differences in set up and financial arrangements between the Law Society and the Federation and their respective insurance companies, the basic principles of contractual law that apply are vastly different. But the UK courts tried to force them as being the same. (vii) In the Law Society case, there was no offer or acceptance made between the Law Society and solicitors. It was simply a situation of either pay the fee or do not practice as a solicitor. The offer and acceptance which arises between insurance company and named solicitor is arranged by Law Society through out which The Law Society acts as an agent. (viii) In the present case, there was offer and acceptance made between the Federation and members. The Federation purchases block insurance cover from an insurance company as a product and then uses it as a means to attract members for profit. The more members the more money the Federation will make. The insurance product is a contract between the Federation and their insurance company and the Federation pays for this. The receipt from the Federation states “Any advice provided to members is intended as initial guidance only and should not be relied upon or ……… This does not apply to advice given by the contracted service providers of the Federation.” thus allowing the Federation to change insurance company at will. No member has the power to do this. (ix) Also in the present case, the insurance policy is in name of the Federation ie the Federation of Small Businesses. The Certificate of Insurance states “Now we the Underwriters hereby agree to the extent and in the manner herein provided to indemnify on behalf of the Assured at the request of the Policyholder Legal Expenses as specified in this Certificate and its Schedule in connection with the business activity of the Assured.” and this protection cover is administered by Abbey Legal protection (See Bundle A appendix 14). The member is the assured but not the policyholder. In the Law Society case, the assured solicitor cover is not at the request of the policyholder. (x) In the Law Society situation, the Law Society did not pay any money for the insurance policy out of the commission nor did the Law Society try to sell this insurance cover as a contract made between the Law Society and the insurance company to the solicitors. The solicitors were aware that of the subscription paid, x amount was for the insurance cover. (xi) In the Swain case, the insurance policy is in the names of named solicitors because the solicitors pay premium for this cover directly to the insurance company via the law society, thus a contract is created between the named solicitors and the insurance company. (xii) The policy provided to the Member by the Federation’s insurer can only be cancelled by the Federation and not by the members. In the Swain case, the policy can be cancelled by the named solicitor. (xiii) Mr. Recorder Moxon Browne acted in a biased manner. The decision made by Mr. Recorder Moxon Browne on the grounds that there exists a contract between the Applicant and the Federation’s insurer was contrary to Article 6 of the Human Rights Act. It shows that the judge was not impartial! The factual grounds given by the judge were not raised by the Federation in its defence! A judge has no locus standi to raise the defence of fact for a party! Yet, Mr. Recorder Moxon Browne did just that! He thus became the defendant (Federation)! And, he ceased to be a judge! In other words, he was, in law, a biased judge. See: Langborger v. Sweden (1990) 12 EHRR 416 at para 32. Before he made an order, on the basis of the ground that he himself had raised, Mr. Recorder Moxon Browne did not give the Applicant notice of his intention to base the order on the un-pleaded ground. His failure to give notice is contrary to Article 6. By failure to give notice, he failed to give the Applicant an opportunity to be heard on the un-pleaded point! See: De Geouffre de la Pradelle v. France (A/253-B(1992) unreported). Had the judge given the Applicant an opportunity to be heard on the matter, the Applicant would have disabused him on that point. As a matter of fact the Swain Case was never discussed or tested during the hearing. Just before the court retired, the Federation’s Counsel Mr. Vaiterham said “Does your Honour wish any more assistance with the authorities?” And Mr. Recorder said “I don’t think so, no. What is this Swain? It says a lot of things, does it say anything about this case?” and immediately concluded “Yes, judgment at two o’clock or so soon thereafter.” One would ask how it is possible for the judge to apply the Swain case in this instance when the judge did not even know if the Swain case said anything about this case. Forcing a contract to exist between the Applicant and the Federation’s insurer when there is no contract between the Applicant and the Federation’s insurer is a breach of Article 17 of the HRA 1998. It is important to note that nowhere does there exist a contract between Members and the Federation to stipulate that the service provided and the indemnity to any claim “subject to the terms and conditions of the certificate of insurance” in any way forms terms and conditions between Members and the Federation. Despite being asked to request the Federation to produce the “terms and conditions” that the Federation repeatedly claims exist between the Applicant and the Federation, Mr. Recorder Moxon Browne failed to do this even though the evidence requested is highly pertinent to the issue. Contrary to Article 17 and Article 6 of Human Rights Act 1998, Mr. Recorder Moxon Browne denied the Applicant a fair hearing, making a decision by misapplication of the test (Swain v Law Society). Further Mr. Recorder Moxon Browne overturned a decision by a higher court, and the domestic court of appeal allowed this, thereby creating a dangerous precedent. By doing so the Recorder and the following court of appeal acted to deny the Applicant effective remedy, as expressed in the Article13 of the ECHR to which UK is a signatory. Further there were breaches of Article 14 of HRA 1998, which is Prohibition of discrimination, as the Applicant feels the action of the court to have been discriminatory, and also Article 17 of the HRA 1998 which Prohibits abuse of rights resulting in violation of Article 6 of the same, which is right to a fair hearing. The Applicant believes the judgment at Page 10 para B stating “You chose to sue the Federation, and you’ve acted throughout without legal advice. It’s been said by the Federation they’re not the right party, that’s been their position all along, and we’ve now got a decision from me that they were right and you were wrong. …. The other thing you could do is to put all this behind you and put your energies into trading.” is against all existing principles of law and set precedents, that the judge has abused the powers of the court, siding with the Defendant (the Federation)thus discriminating against the Applicant as a litigant in person. As for the court to advise the Federation from now on to include with their promise on their promotion leaflet “subject to terms and conditions of the insurance policy” and at the same time ignore the relevance of the absence of these same words to the case before it, is surely a gross abuse of court power. 18. No 1. From the incidents detailed above it is obvious that in reaching its Decision dated 4 October 2002 the Court of Appeal did not follow the principles of law, rule of law and established precedents and acted inconsistently with existing case law; thus denying the Applicant a fair hearing by denying the Applicant’s case to be heard in accordance with the facts and allegations submitted. 2. The domestic courts have used statements, purporting
there to be, and thus forcing, a contract between the Applicant
[member] and the Federation’s insurer when in fact there
is no contract between members and the Federation’s insurer. 4. The Applicant’s claims against the Federation is based on the fact that there is a contract between members and the Federation and that the Federation should keep their promises in the event members request assistance. The responsibility and liability of the Federation should not be waived or transferred to the third party, the Federation’s insurer, with whom the members do not have any contract. The Applicant asks the Court not to allow domestic court’ judgment to stand, purporting that there is a contract between members and the Federation’s insurer, permitting them to escape their liability, and thus denying the Applicant fair hearing and legal redress. 5. In any event, the Applicant asks the Court to request the evidence to the supposed contract between members and the Federation’s insurer, and also a copy of the further master policy that the domestic court of appeal claimed exists between the Federation and their insurer. 6. The Applicant would also like to ask the Court
to invite him to appear in person. 8. Furthermore the Applicant seeks pecuniary damages due to the stress and anxiety suffered by the Applicant and his family. Summary 8. It is important for the Court to recognise the actual reason and basis upon which this claim has arisen (not the diverted basis purported in the domestic court of appeal) (i) The Applicant requested indemnity for an in-depth IR investigation from the Federation’s insurer and was refused. (ii) At his own expense the Applicant employed 3 consultants in his defence and was proven innocent. The IR apologised. (iii) The Federation’s insurer overturned their original decision not to indemnify and agreed to reimburse the costs incurred; only to later renege. (iv) The Federation refused to support the Applicant against their insurer and sided with their insurer. Legal action was taken against the Federation because the only contract in existence between the Applicant, as with any member of the Federation, is with the Federation. (v) For the court of appeal to rule that the only contract that exists is between the Applicant (or members) and is with the Federation’s insurer cannot be true. (vi) The court of appeal and the Federation insist there is a contract and further there are terms and conditions between Applicant and the insurer; but are not able to produce such a document to support their claims. (vii) The claim against the Federation was thus dismissed as their being the wrong defendant. (viii) The court of appeal failed to reach a conclusion on who is the correct defendant, and the question was addressed by Mr Recorder Moxon Browne, on the 25 September 2001, who states on page 22 of transcript “I’m inclined to assume in this case that the underwriter’s refusal to meet your claim in full was wrong. I don’t know whether it was or not, but it would take a long time to find out, and I’m prepared to assume that in your favour. The question, the question in this case is, is who owes you the money? Is it the insurers, or is it, is it the Federation, that’s the issue.” Yet this issue was never addressed properly by the court of appeal. (ix) There are two types of Certificate of Insurance. One is for the assured to pay premium directly to the insurer thus forming a contract between the assured person and the insurer. The second is for an organisation to pay premium for a block of insurance from an insurer and it is at the request of the policyholder, the organisation, to identify who is the assured that the insurer is required to insure. In the latter type, the certificate of insurance does not form a contract between the insurer and the assured. The contract is between the organisation and the insurer. (x) The court of appeal has deliberately fudged the differences between the two types of Certificate of Insurance when concerning themselves with the Applicant’s application. (xi) The fact that the promise made by the Federation’s flyer is fulfilled by a service supplied by the Federation’s contract service provider does not waive the responsibility and liability due to the Applicant, or any other member for that matter, away from the Federation if the contract service provider refuses to honour their contract with the Federation to indemnify the Federation’s members during IR investigations. Especially in the Applicant’s case when the insurance provider accepted liability and agreed to reimburse the Applicant (member) only after the IR investigation was completed and the Applicant proven innocent. At that point conditions of insurance were no longer applicable. (xii) The Federation to whom the Applicant, like all other Federation members, pays his annual membership fee must have a contract with the member. The flyer cannot only be referring to the Federation as an agent whose only duty to the members is to introduce the benefit of insurance cover. (xiii) Furthermore, there is no qualification on the flyer to suggest or inform consumers that the benefit promised in the flyer is provided by the Federation’s insurer. It is the domestic courts abuse of their power by stating (para 12 of court of appeal judgment) “the words of the flyer are themselves not inconsistent with an intention to provide insurance services rather than an unqualified indemnity” and also Mr Recorder Moxon Browne (page 6 Para c of the judgment) by stating “I think that it would, perhaps, have been advisable and may remain advisable for the Federation to make it clear by their promotional literature that what is on offer is the benefit of insurance cover subject to terms and conditions and not an independent and unfettered promise by the Federation to give the support described free of any terms and conditions.” (xiv) In this case, the error of law remains in that the domestic court has abused its power and acted beyond its jurisdiction, by forcing the certificate of insurance for which the Federation pays the premium to the insurer to be the basis and support of a binding contract between members and the insurer. (See Bundle B Page 5 para A of the Recorder’s judgment) (xv) Mr. Recorder Moxon Browne on the 25 September 2001 said in his judgment “An effort was made to strike out your claim on the grounds that you’d sued the wrong party. One judge said that was absolutely right. Another judge said, “Well, I’m not going to strike the claim out, let the matter be heard. ” Now the matter has been heard and I’ve decided that the first judge was right. And if you don’t like my judgment then you must approach the Court of Appeal and ask them for leave to appeal.” This statement was not properly addressed by the court of appeal. As to whether it is within the power and jurisdiction and in accordance to court procedure for a lower court to take it upon itself to overturn an appeal court’s judgment without any application for overturn being made (by the Federation) is for the Court to decide. (xvi) The Applicant requests that the Court itself,
in acting independently and impartially, does not rely upon the
many conflicting statements made in the judgements of the domestic
courts unless the accuracy and applicability of the statement
is verified first. In support of this application, the Applicant appends the following documents: Bundle (A) Appendix 1. ECHR Application and attachments 2. Statement of claim 14. Certificate of Insurance – A contract between the Federation and the insurer, which is provided to all members. 15. Direct Debit form - Member’s application form Bundle (B) 13. Judgment, Transcript and Order of Appeal court before HHJ Overend dated 12 January 2001 14. Judgment, Transcript and Order of County Court before Mr. Recorder Moxon Browne dated 25 September 2001 15. Judgment, Transcript and Order of Court of Appeal before LJs Laws and Stuart-Smith dated 4 October 2002 Bundle (C) 16. Application submitted to Court of Appeal
dated 4 October 2002. Appendix
3 case v 13/01/1998 House of Lords refused leave in Civil Action. 27/02/1998 Letter from Judicial office to Veitch Penny - requesting Veitch Penny to submit within three months if unable to agree the costs with the applicant’s solicitor. 30/10/1998 House of Lords Taxation officer informed Mr Lam’s solicitor Mr Merrick to attend a taxation hearing on the 1st December 1998 16/11/1998 Mr Lam’s solicitor Mr Merrick received the bill of costs of second respondent for the first time. 01/12/1998 Taxation hearing 22/04/1999 Order from House of Lords awarding costs of £1929.02 23/04/1999 Mr Lam wrote to the head of Taxation office questioning the award made by taxation officer. 29/04/1999 Letter from Senior Costs Judge to Mr Lam advising him to seek assistance from his local MP to pursue the matter. 06/06/1999 Mr Lam wrote to his MP, Mr A Sanders, for assistance. 24/05/1999 Response from Judicial taxing clerk - Mr Lam’s solicitor, Mr Merrick did object but the taxation officer was extremely brash and said that if Mr Merrick did not like the system of the Respondent getting their costs before the House gave leave, then he would have to complain elsewhere and in the case of the travelling Mr Merrick was told that if Mr Lam had accepted the costs in full then the Respondent’s representative would not have needed to travel from Exeter! 17/06/1999 Letter from Mr Merrick to Mr Lam explaining in detail what happened during the taxation hearing 22/06/1999 Mr Lam again sought assistance from Mr Sanders to question the taxation officer’s powers. 27/07/1999 Letter from House of Lords Principal Clerk to Mr Sanders - “The respondents’ bill of costs (just under £2,000) is reasonable for this sort of case and I allowed the bill as drawn.” and Mr Merrick’s submission was not accepted. 06/01/2000 Letter from Judicial Office, House of Lords informing Mr Lam “you are not allowed to made submissions concerning petition for leave unless the Appeal Committee requests respondents submissions.” 10/03/2000 Veitch Penny wrote to Mr Lam demanding the costs 14/03/2000 Mr Lam wrote to Veitch Penny (Defendant’s solicitor) regarding the work carried out to justify the costs awarded. 19/04/2000 Mr Lam wrote to Veitch Penny asking further question regarding costs incurred 22/05/2000 Mr Lam wrote to Veitch Penny asking for further support regarding costs awarded. 05/06/2000 Letter from Veitch Penny claiming Mr Merrick was notified of their costs before the taxation hearing. This is disputed by Mr Merrick. 06/07/2000 Letter from Mr Merrick to Mr Lam detailing his discussion of costs with Veitch Penny 08/07/2000 Mr Lam wrote to Veitch Penny questioning the disparities in the record regarding the discussion of costs between Veitch Penny and Mr Merrick 10/07/2000 Mr Lam once again sought assistance from Mr Sanders regarding the taxation officer’s abuse of his position and exercising powers that are not granted by Parliament. 06/11/2000 In response to Mr Lam’s letter dated 10/07/2000 and the allegations made, a decision letter from Judicial Taxing Clerk - with nothing to add 31/01/2001 Based on the decision letter dated 6/11/2000 from the Judicial clerk, Mr Lam’s claim for judicial review was issued 0702/2001 Response from Judicial clerk - The House of Lords will take no action. 13/02/2001 Mr Lam’s application for judicial review was refused on the ground that “the jurisdiction of judicial review extends only to decisions made by inferior courts or tribunals.” It was not refused as being out of time. 10/04/2001 Application made to ECHR. That there is no remedy available in UK, when the House of Lords taxation officers can abuse their power in awarding costs “as they feel reasonable”(Article 17). Throughout the entire period, Mr Lam has been actively appealing against the decision of the taxation officer but to no avail. The final decision and authority from the House of Lords Judicial clerk was given on the 6th November 2000. Enclosure - copy of House of Lords Practice Directions and Standing Orders 5.0 Cost Background In 1997 a Petition was submitted to the House of Lords for Leave to Appeal in a civil matter against Torbay Council. Leave was refused on the 13th January 1998. The Defendant’s solicitor whilst initially discussing their cost verbally than without giving either Mr Lam or his solicitor Mr Merrick any written costs and without advising them or giving any notification of the costs of bill applied ex-parte for taxation. Mr Lam’s solicitors received a notification dated 30 October 1998 from House of Lords Taxation officer to attend a taxation hearing on the 1st December 1998 regarding the costs incurred by the Respondent Torbay Council in their submission to House of Lords. On receipt of the order dated 22/041999, Mr Lam immediately wrote to the Head of Taxation office questioning the legal validity of the award made by the taxation officer who did not have any legal powers to make such award. Mr Lam received the letter dated 29/04/1999 from Senior Costs Judge advising him to seek assistance from his local MP to pursue the matter and this is what Mr Lam has done. On behalf of Mr Lam, Mr Lam’s MP Mr Sanders wrote to the taxation officer to make enquiry regarding the costs awarded. However the response from the taxation officer was evasive and inaccurate. So Mr Lam contacted his solicitor Mr Merrick for a detailed account of what had actually happened during the hearing. Mr Merrick’s reply to Mr Lam dated 17/6/1999 states “I pointed out that the petition was effectively ex- parte and it was not reasonable to expect the Respondent in the action to take steps to protect their interests before knowing whether the House gave Leave to Appeal. I also requested to see a copy of the Order under which costs were awarded, but the Taxing Officer said that no such Order existed but that it arose out of the House of Lords Minutes in which it is recorded that leave was refused. I objected on the basis that the practice was an improper one and that there was no cost order made yet the cost was being awarded by the Taxation Officer without the authority of the House of Lords and or any legal body in the UK.” Mr Lam’s solicitor also told the Taxing Officer that “if I would be the Respondent’s solicitor I would simply pass the petition to the client with the comment that there was no need for it to be considered in any depth unless the House of Lords gave Leave.” The response from the Taxation officer was that the merits were irrelevant as the “the bill was only about £2,000 which was minimal for anything in the House of Lords and consequently it would be allowed in full”. Upon the receipt of the letter from Mr Merrick, Mr Lam immediately sought further assistance from his MP Mr Sanders to clarify the confusions concerning how the taxation officer awarded the costs to the defendant under these particular circumstances. The House of Lord’s Taxation Officer’s response of date 27 July 1999 states “The respondents’ bill of costs (just under £2,000) is reasonable for this sort of case and I allowed the bill as drawn.” 10 March 2000 was date of the first letter that the defendant’s solicitor Veitch Penny wrote to Mr Lam. This letter demanded that the costs awarded by House of Lords taxation officer to be paid in full. Upon receiving this demand, Mr Lam wrote to Veitch Penny requesting the supporting documents for the work which they claimed they have done to support these costs, but to date Mr Lam has not received these documents. Penny Veitch also insisted that Mr Lam’s solicitor was informed of the costs before the application to House of Lord’s for taxation. In Mr Merrick’s letter dated 6/7/2000 has stated for the record that Veitch Penny did not send him a bill of costs before they applied for taxation. However, Mr Merrick states that there had been a telephone discussion regarding costs, but that the amounts discussed were much lower than the much inflated costs submitted for taxation, and granted by the taxation officer. In view of the allegations and content of the letter from Mr Merrick regarding the procedure and records regarding costs, Mr Lam once again sought assistance from his MP, Mr Sanders alleging that the House of Lords taxation officer abused his power and awarded costs to the Defendant in a situation where he has no power to do so. It is important to recognise that according to House of Lords Practice Directions and Standing Orders 5.1b) the only costs that may be awarded to a respondent are only those costs necessarily incurred in attending the client, attending the petitioner’s agents, perusing the petition and entering appearance. However, as this was an Application for Leave to House of Lords, unless the House of Lords Appeal Committee requests respondents submissions the respondent is not allowed to make submissions concerning a petition for leave. On record the House of Lords Appeal Committee did not ask the respondent (Defendant) for any submission. It is clear that there is absolutely nothing the Defendant can do to have any affect on the application by Mr Lam to House of Lords for leave at this stage. Until leave is granted, the only necessary costs incurred by the defendant’s solicitor is “entering appearance” cost, which is only half an hours’s work. Mr Lam alleges that the taxation officer realising that he acted without any legal authority attempted to coverup by refusing to explain his conduct and also from where he obtain the authority to award the cost arbitrarily. It is abundantly clear by the refusal of the taxation officer to respond to the queries raised in the letter dated 10 July 2000 from Mr Lam and in an effort to stonewall anyone from finding out the truth and violate Mr Lam’s human rights states in his final decision letter dated 6 November 2000 “I am writing to confirm that this office can add nothing further to our previous correspondence on Mr Lam’s case.” As Mr Lam received no response to the questions he raised in his letter dated 10 July 2000 to the taxation officer via his MP Mr Sanders, Mr Lam submitted an application to move for Judiciary Review. Only to be told by the Administrative Court Office in their letter dated 13.02/2001 that “The jurisdiction of judicial review extends only to decisions made by inferior courts or tribunals. I regret therefore that your application has been deemed ineffective and your file has been closed.” It is important to note that national courts at no time have made ruling that Mr Lam’s application was refused on time delay. It is clear that from the above statement there is no remedy available in UK to test the validity of the decision made by the House of Lords Taxation officer in this case. There is urgent need to make provision and remedy available in UK to stop this type of abuse of power, a practice which it would seem can only too easily occur. This is one of the most important reasons why Mr Lam has applied to ECHR for redress, remedy and compensation. Grounds upon which it can be demonstrated that the taxation officer abused his power by exercising his discretion wrongly : (i) Under normal circumstances costs would only arise as a procedure which is for the Respondent to enter appearance to a petition for leave as soon as they have received service. There has been no copy of communications produced to support any submission made concerning the Petition to the House of Lords to Mr Lam’s Solicitor or to Mr Lam. (ii) In this instance the taxation officer wrongly exercised his discretion by, in a matter of this amount, approving the payment for the draughtsman’s expense without due authority of the House of Lord and or the British Parliament, in breach of Article 17. (iii) The taxation officer also acted beyond his discretion by giving no regard to the direction 5.1(d) which stipulates “........ if not agreed between the parties.” The taxation officer did not give any consideration nor acknowledgement of the fact that Mr Lam’s solicitor was never informed of costs incurred nor received an invoice from the Respondent‘s solicitor prior to the application for taxation. This is against normal procedure. For the purpose of application to House of Lords for taxation, under the Direction (1) anyone should lodge their bill for taxation in the House of Lords within three months of the report from the Appeal Committee refusing leave to appeal.” but in this instance it was lodged some 10 months later, well outside the regulation three months limit.
It is alleged that the taxation officer abuse of position
of authority in exercising a power which he did not have and in
contravention of House of Lords governing rules and procedures :
- 2 Further the Respondent did not give notification of costs to Mr Lam or his solicitor before the taxation hearing 3 The costs submitted by the Respondent’s solicitors for taxation were inflated and unaudited. 4 Costs awarded should be confined to the costs incurred for “entering appearance”only 5 In cases where the Respondent office is situated outside the area it is the practise that a local agent being appointed. This was not the case 6 The only reason the taxation officer gave was “The respondents’ bill of costs (just under £2,000) is reasonable for this sort of case and I allowed the bill as drawn.” The taxation officer did have the necessary authority to award any cost in such For the reasons above Mr Lam alleges under the articles of the ECHR that there is ;- BREACH OF ARTICLE 6 - Right to a fair trial In Mr Lam’s case, it is clear there is a breach of article 6. Mr Lam was not given a fair trial. The decision reached by the taxation officer was biassed, and he was not acting impartially. Furthermore he did not have the necessary authority to make such award. The fact is that not only the Respondent did not follow the proper procedure as laid down by the House of Lords “Practice Directions and Standing Orders Applicable to Civil Appeals” but also submitted inflated costs, the taxation officer acted beyond his discretion in disregarding this most important and relevant information choosing rather to award the costs purely on the basis that “the bill was only about £2,000 which was minimal for anything in the House of Lords and consequently it would be allowed in full”. The Applicant submit that he has not been given the opportunity to examine the submission that was made by TBC solicitor to claim their costs. The Applicant also submits that he was not given the opportunity to comment on the evidence adduced by the court in reaching their judgement (See Krcmar and Others v. The Czech Republic Application No. 35376/97 Judgement 3 March 2000) that the Applicant should be given the opportunity to comment on any evidence documentary or otherwise produced by Veitch Penny to the House of Lords Taxation Officer. Article 13 - Right to an effective remedy The Applicants submit that an appropriate means of obtaining a determination of their allegations that the House of Lords Taxation officers abused his position and acted without authority by awarding costs that the respondent were not entitled to, was not made available. (See case of Z and Others v The United Kingdom Application no. 29392/95 Judgement 10 May 2001). Article 17 - Prohibition of abuse of rights The Applicant submits that the actions of the Taxation Officer amounted to an abuse of powers and office by costs to Veitch Penny purporting there to have been a submission when there was in fact no submission made, is abuse of applicant’s rights. In doing so the Taxation Officer aided and abetted and participated in the violations of Mr Lam’s human rights. The applicant further submits that the actions of Taxation Officer which cannot be challenged under national courts is in itself a violation of individual human rights. Relevant domestic Laws and authorities X (Minors) v Bedfordshire County Council (1995) 3 WLR 152 Lord Browne-Wilkinson :- 170 (F) Where Parliament confers a discretion the position is not the same. There may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that. Other relevant legislation There is direct violation of Article 20, 21, 41, 42, 47, 53 and 54 of Charter of Fundamental Rights of the European Union. We also refer to the Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and protect Universally Recognised Human Rights and Fundamental Freedoms, General Assembly resolution 53/144 Article 1, Article 2, Article 3, Article 8, Article 9, . We also refer to Basic Principles on the Independence of the Judiciary _ Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 We also refer to the UN Report of the Special Rapporteur on the independence of judges and lawyers, Dato'Param Cumaraswamy, submitted pursuant to Commission on Human Rights resolution 1995/36 In particular the principles I, V and VI as laid out in Report of the Secretary General of UN prepared in accordance with Commission resolution 1996/13 with the comments received. IV STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION Mr Lam applied to High Court for Leave to move for Judicial Review in January 2001. The purpose of the application was to ask the court to review the decision made by the taxation officer of House of Lords on the 1st December 1998, and decide if the officer has the power to award the costs as he did. The date the final decision reached by the Judicial Clerk of House of Lords regarding this taxation decision was given was the 6 November 2000. Upon the receipt of the decision letter dated 6 November 2000 Mr Lam applied for Judicial Review. On the 14 February 2001 Mr Lam received a letter dated 13 February 2001 from the Administrative Court Office which states “The jurisdiction of Judicial Review extends only to decisions made by inferior courts or tribunals. I regret therefore you application has been deemed ineffective and your file has been closed.” Therefore in the UK, Mr Lam has no redress or remedy available to test the lawfulness of the decision made by the taxation officer regarding costs awarded to the Defendant.
It is obvious from the documents that the House of Lords taxation officer acted in a manner deliberating in breach of Mr Lam’s human rights as he did not have the necessary power and the House of Lords did not give him the legal authority to act in a manner he did in their name. In the English Courts, once a decision is made by House of Lords Taxation Officer, no redress is available in UK as stated in the letter dated 13/02/2001 from Administrative Court Office “The jurisdiction of judicial review extends only to decisions made by inferior courts or tribunals.” Under these circumstances, the system can be subjected to serious abuse which is clear in the present case. Despite a well established principle of law and authority, in Lazarus Estates Ltd v Beasley [1956] 1 All ER 341 Lord Denning “No judgement of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud - fraud unravels everything.” The essential problem within the English Legal System
is that when a decision is made by House of Lords in which injustice
is done to a person, there is in respect of which there is no effective
remedy because High Courts can only review decisions by inferior
courts and tribunals, cf. Section 7 of Human Rights Act 1999. The Applicant submit to the court to consider what is reasonable costs for “entering appearance” for the Defendant/Respondent and to award costs for legal expensive in making this application. The Applicant also submit that he should be compensate for exemplary damage and stress since September 1998 when the Applicant was first informed of the costs which was in the region of £2,000. The Applicant also claim by way of legal costs and expense in preparing this submission. |
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