A (A Patient, Now Deceased), Re (No 4)

1. On 13 July 2018 I gave my most recent judgment in this long-running saga: Re A (A Patient, now deceased), Re an application by Desmond Maurice Fitzgerald (No 3) [2018] EWCOP

16. In accordance with my almost invariable practice, that judgment was subsequently published on the BAILII website. As the judgment and its cover-sheet made clear, I gave that judgment sitting in the Court of Protection, as President of the Court of Protection, in proceedings 95908524.

2. On 24 July 2018, Mr Fitzgerald issued an application in the Family Division of the High Court of Justice, under number FD13P90056, seeking an order that, as President of the Family Division, I “withdraw from public record Judgement EWCOP16 [2018] on the grounds that: (1) It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.”

3. I do not propose to take up time dealing with grounds (2) and (3). As readers of all my previous judgments will appreciate, these are merely the latest of many attempts by Mr Fitzgerald to rubbish any judgment by any judge with whom he chooses to disagree.

4. In relation to ground (1), Mr Fitzgerald makes two points: i) He asserts that in June 2013 I transferred the proceedings from the Court of Protection to the Family Division. This is simply not so. As I made clear in my last judgment (para 1, fn 1), although for internal record-keeping purposes within the office of the Clerk of the Rules, and as indicated by the inclusion in the number of the figure 9, the case was allocated a Family Division reference number, FD13P90056, the case has never been transferred to the Family Division and remains in the Court of Protection. Mr Fitzgerald seems unable or unwilling to understand the difference between a case being transferred from First Avenue House, where the Court of Protection is based, to the Royal Courts of Justice, to be heard there, in the Court of Protection, by a nominated Tier 3 judge of the Court of Protection who is a judge of the High Court assigned to the Family Division – which is what happened here – and a transfer of a case from the Court of Protection to the High Court. His confusion is illustrated in his confident, and entirely erroneous, assertion in his witness statement dated 24 July 2018 that: “Munby blandly states in Para 1 of EWCOP16 [2018] that this matter is not in the High Court. There is no doubt that it is in the High Court; the only question being whether High Court Court of Protection or High Court Family Division.” It is elementary that the Court of Protection is not part of the High Court. It is a separate court of record: see section 45 of the Mental Capacity Act 2005. ii) He asserts that the Court of Protection lacks jurisdiction to do anything after P has died, jurisdiction post mortem existing or arising, he has suggested in previous emails, in the Family Division and Chancery Division. Neither proposition is correct. Although the Court of Protection lacks jurisdiction to make substantive orders, whether health and welfare orders or property and affairs orders, after P has died, this does not mean it lacks jurisdiction where it is necessary to exercise jurisdiction to ‘tie up any loose ends’ – which is what I was doing here and, moreover at Mr Fitzgerald’s express invitation. Nor does he begin to explain how something which ante-mortem was being dealt with in the Court of Protection can, without more ado, properly fall post-mortem within the jurisdiction of the High Court, whether the Family Division, the Chancery Division or, for that matter, the Queen’s Bench Division.

5. Mr Fitzgerald’s latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order.

6. I had completed the drafting of this judgment as it appears above when, at 1318 on 26 July 2018, I received this characteristically hectoring and blustering email from Mr Fitzgerald: “I can confirm that hard copy of my Application Notice that you recall your Judgement EWCOP16 [2018] from the public record was lodged yesterday with the Clerk of the Rules. If by close of business tomorrow, you have not:- 1) Withdrawn EWCOP16 [2018] from the public record 2) Advised your successor Andrew McFarlane LJ that he should revoke his refusal of permission for appeals B:2016 1436, 1437 & 1470, given purportedly on 24 August 2017, on the grounds of new evidence seen by you I will request that your misrepresentations in EWCOP16 [2018] are treated as criminal.” Comment is unnecessary.