Vlad v Judicial Appointments And Conduct Ombudsman

For judicial-conduct complaints, a continuing state of affairs under regulation 4(2) must consist of continuing misconduct by the particular judge complained of. Ongoing litigation concerning the same dispute does not extend the time limit for complaints about other judges. Procedural rulings at a permission hearing fall within case-management discretion where the affected party has a fair opportunity to respond. Fresh evidence cannot reopen exhausted proceedings where its allegations are unparticularised and its inferences unsustainable. Persistent meritless applications may justify a general civil restraint order.

Mrs Vlad sought permission to appeal from McGowan J’s refusal of permission to apply for judicial review of a report by the Judicial Appointments and Conduct Ombudsman. The report rejected her complaints about judicial conduct as out of time under the Judicial Discipline (Prescribed Procedures) Regulations 2006. The central issue was whether later litigation constituted a continuing state of affairs under regulation 4(2).

She also sought permission to appeal orders concerning enforcement of an earlier matrimonial financial-relief order and the refusal to set aside previous judgments. She relied on alleged procedural unfairness, bias, fresh evidence, nondisclosure and repeated attempts to reopen exhausted appeal proceedings.

1. Judicial-review permission application. Lord Justice Sales refused permission to appeal. Under regulation 4(2) of the Judicial Discipline (Prescribed Procedures) Regulations 2006, a continuing state of affairs means continuing judicial misconduct by the particular judge whose conduct is complained of. Continuing litigation about the same underlying dispute does not qualify. The Ombudsman therefore correctly treated the complaints as out of time.
2. The late acknowledgement of service did not establish an arguable appeal. Part 54.9 permitted the court to allow the Ombudsman to participate, and Lewis J’s order and McGowan J’s decision were within case-management discretion. The late-served skeleton argument and witness statements were provided sufficiently before the hearing to give Mrs Vlad a fair opportunity to respond. The costs order was conventional where the court required the Ombudsman’s assistance.
3. The procedural decisions and merits-based conclusions disclosed no arguable subjective or objective bias. Nor did the length of the hearing create an appealable error, particularly as additional time had been allowed to give a litigant in person a full opportunity to present her case. The proposed appeal had no real prospect of success and no other compelling reason justified permission.
4. Applications concerning the matrimonial orders. Lady Justice Macur refused permission and treated the applications as totally without merit. The fresh evidence was unparticularised, the proposed inference of financial support was unsustainable, and it could not realistically justify reopening the divorce, financial-relief, enforcement or appellate proceedings. HHJ Brasse’s order merely gave effect to an earlier transfer order confirmed on appeal; no separate reasoned judgment was required. HHJ Tolson QC correctly held that the repeated set-aside application was misconceived and that prior judicial criticism did not establish bias.
5. Under CPR 52.10(5) and (6), the court had to consider a civil restraint order. Applying CPR 3.11 and Practice Direction 3C, a general order was appropriate because of persistent applications, repeated findings that applications were totally without merit and disregard for the merits and the court’s time. The order was made for two years, requiring permission from a judge nominated by the Master of the Rolls before further claims or applications could be made at any level. The interim stay was lifted.

1. Court of Appeal (Civil Division). Permission to appeal was refused on all applications. A two-year general civil restraint order was made.
2. High Court. McGowan J refused permission to apply for judicial review on 29 October 2015; the decision is reported at [2015] EWHC 3790 (Admin).
3. Central Family Court and earlier appellate proceedings. Orders concerning transfer of the former matrimonial home were made and later confirmed on appeal. HHJ Brasse directed execution of the transfer, and HHJ Tolson QC refused the subsequent application to set aside that order.