Law: Is m'lud guilty of `secret' briefings?

Eva Adshead says that her committal to jail for contempt was prejudiced by a letter one judge wrote to another. She is now going to the European Court, but the Vice-Chancellor's office says that nothing was amiss.
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Eva Adshead, 51, who lives near Buxton in Derbyshire, lost her husband Gerald to a heart attack in the summer. She claims that the stress of an 11-year court battle was partly to blame for his untimely death. Then last month she lost the final round in her struggle to keep the couple's pounds 1m home when a Court of Appeal ruling went against her.

It marked the end of a pounds 15,000 dispute with builders over a refurbishment contract after a fire wrecked the couple's pounds 1m country hotel. Mrs Adshead now owes pounds 200,000 to the Legal Aid Board which has been given permission to take "vacant possession" of the Victorian mansion, in the heart of the Peak District National Park. The sale of the house will pay the bill.

Mrs Adshead and her two sons are left feeling that British justice has let them down.

However, among her many criticisms of the civil courts one stands out. That is that judges secretly brief one another to affect the outcome of a case. It is a criticism which has now been taken seriously by one of the country's most senior judges.

During the Adsheads' court battle a letter written by one judge to another came into their possession. When they first saw the letter, it appeared to suggest that two judges, who had heard, or were about to hear, her case, might have acted improperly. Legal reform groups, suspicious of the arcane workings of the court, latched on to it as evidence of "secret briefings" - communications between judges that could affect the outcome of cases.

The Litigants in Person Society is bringing a group action before the European Court of Human Rights challenging the use of undisclosed court documents.

Geoffrey Scriven, of the Litigants in Person Society, says that the letter was a clear breach of the principle of open justice. "This is not the first time that we have found evidence of judges working together. We have many more examples. How are we supposed to believe in British justice, if judges are secretly writing to one another?"

When the Adshead case reached the Court of Appeal, Sir Richard Scott, the Vice-Chancellor and head of the Chancery Division, was made aware of the existence of the letter. He instructed Roger Venne, head of the civil appeals office, to find out whether it had made any difference to the Adsheads' case.

The focus of the inquiry was a letter written by a district judge, Eric Jones, complaining to a Judge Maddocks of the "contemptuous and contemptible insults" that he had had to endure while hearing the case. These stemmed from alleged criticisms made of him by the Adsheads who were still being pursued by the Legal Aid Board for pounds 200,000 in unpaid legal costs.

The two Manchester judges, who were the subject of Sir Richard's inquiry, both sat in separate hearings relating to the Adsheads' case.

In the letter, Judge Jones asked his judicial colleague whether he had to "take the insults on the chin, or whether something can be done". He then urged Judge Maddocks, who was soon to hear the case, to consider bringing contempt proceedings against the couple - the first step in a civil action for imprisonment. But the case, an application to stay the possession proceedings, was adjourned because of Gerald Adshead's poor health, and in the end another judge heard the case.

A year later Judge Maddocks did find the couple in contempt, in a related application, and issued a suspended committal warrant - a warrant for their imprisonment.

Sir Richard instructed Roger Venne to ask Judge Maddocks to account for what impact, if any, the letter had on his decision. Judge Maddocks wrote back to Sir Richard earlier this year acknowledging receipt of the letter but rejected any suggestion that the letter had influenced his decision to issue a committal warrant.

Judge Maddocks told Mr Venne: "The letter was certainly not on my mind at any of the hearings before me, and did not influence me." He finished by saying: "I hope these observations might be helpful to the court and to Mr and Mrs Adshead."

Sir Richard - sitting with two appeal court judges - ruled in favour of the Legal Aid Board and, in so doing, cleared the judges of any wrong- doing.

Sir Richard said he was satisfied that the judge had not taken any notice of the letter.

He said that it was untrue that judges habitually briefed other judges behind closed doors. In his view "secret briefings" were nothing more than the work of legal assistants - young lawyers, many on secondment from law firms, who prepare a summary of cases for the appeal court and, occasionally, trial judges. Sometimes, explained Sir Richard, these private briefings erroneously fell into the hands of the parties in the case and this contributed to the public's suspicions of judicial conspiracies.

Sir Richard told The Independent: "Complaints about secret briefings in the Court of Appeal relate usually to the use of legal assistants to the judges who fulfil the sort of function of judges' clerks in the United States."

He says the briefing papers were not made public because they were for the assistance of the courts. "There is nothing sinister about them as they are discharging an entirely useful function," he adds.

Nevertheless Sir Richard realises the need to put the record straight. "It concerns me because of the public misunderstanding about it. People tend to believe what they want to believe. They [legal assistant reports] are made in the course of their employment. If you believe, as some litigants in person do believe, that there's a huge conspiracy involving everyone, then this becomes part of the tinder."

Sir Richard, who headed the Arms to Iraq inquiry in the early Nineties, said that there had been proposals to extend the judicial assistants programme across the country, but he had always opposed the scheme.

"I'm not in favour of this. I think they [full-time legal assistants] would, in lower courts, spend an awful lot of time standing around doing nothing."

But Mr Scriven still believes that many of these briefings prepared by judicial assistants are "totally prejudicial and inaccurate".

On 26 November, Sir Richard accepted the judge's explanation and rejected Mrs Adshead's appeal against the contempt of court order.

By this time, Mr Adshead had died after another heart attack.

The ruling marks the final stage in Mrs Adshead's battle, which began in 1988, to keep her home.

But Mrs Adshead, who after Judge Maddocks's committal ruling back in 1997 had to move into a caravan parked on a nearby main road, claims that she had never been given a fair chance to put her side of the case to the court. Her only hope now is to take her case to the European courts.

She says that she has enough evidence to show "partiality and oppression" in the case which "clearly breached" article six of the European Convention of Human Rights - the right to a fair trial.

Mrs Adshead is still adamant that the case should never have got this far. "The stress of this case has killed my husband. The Legal Aid Board should never have pursued us for the costs."

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