His Honour Judge Simon Oliver v Javed Shaikh

Hearing dates: 29 November 2019

Approved Judgment

The Honourable

Introduction

The Claimant is a Circuit Judge and an additional judge of the Administrative Appeals Chamber of the Upper Tribunal (the AAC). He has brought proceedings for harassment against the Defendant, Javed Shaikh, who was a litigant in proceedings before him in the AAC in 2014. The AAC ruled against the Defendant. The Claimant's case is that since about 2016 the Defendant has harassed him and his family and has caused him and them serious alarm and distress. The harassment has been perpetrated primarily through an internet website/blog with the URL https://judgesbehavingbadlyblog.wordpress.com which, says the Claimant, is operated, controlled and/or published by the Defendant. I will refer to this as ‘the Website’.

By an application notice dated 3 September 2019 the Claimant seeks an order that:

a. the Defendant's Defence and Counterclaim be struck out;

b. summary judgment be entered for him on his Claim; and

c. the Defendant be subject to a final injunction restraining him from harassing the Claimant including by publishing further material about him online.

In summary, the Claimant says that the Defendant's Defence and Counterclaim contain no reasonable grounds for defending the claim or bringing the Counterclaim. He says the Defence is simply a bare denial which should under CPR PD 3A, [1.6], be struck out. He says it and the Counterclaim make a number of abusive and vexatious allegations, are non-compliant with the CPR, and in any event have no realistic prospects of succeeding at trial. He says that although he has drawn these defects to the Defendant's attention on numerous occasions, the Defendant has taken no steps to remedy them. Accordingly, he says that I should strike them out under CPR r 3.4(2). He also says that the Defendant has no realistic prospect of defending the claim and so I should grant summary judgment under CPR r 24.2. The Claimant submits the evidence that the Defendant has harassed him via the Website is overwhelming.

Mr Silverstone for the Claimant made clear that his client accepted that, as a judge, he must expect scrutiny of his work and robust comment about how he performs his judicial duties. But he said that the Defendant's conduct has gone far beyond the limits of reasonable or permissible criticism, so that this Court should intervene in order permanently to restrain the Defendant from pursuing what the Claimant says is a malicious and damaging vendetta against him.

The Defendant resists the application. He says he is not responsible for the Website in any way. He denies harassing the Claimant. He says he has pleaded all that is necessary. His case is that the matter ought to proceed to trial.

Preliminary matters

I need to deal with two matters at the outset.

The Defendant was made subject to an interim injunction by Warby J on 6 February 2019. The return date was 18 February 2019. The matter was heard by Nicol J on that date. The Defendant appeared and made submissions. Judgment was reserved. On 26 February 2019 Nicol J continued the injunction until trial or further order.

At the hearing before me, the Defendant said that he had not received the bundles for the hearing. I was shown correspondence by Mr Silverstone demonstrating that they had been sent to the Defendant by special delivery on 22 November 2019, and that a covering letter had been emailed to the Defendant on the same date. The Defendant said he thought the bundles were still at the Post Office. The Defendant told me that he was content to proceed as he had many of the documents in any event from the earlier hearings. He also had Mr Silverstone's Skeleton Argument. He did not apply for an adjournment. During the hearing the Defendant was assisted by Mr Silverstone, who supplied him with some additional documents. During the short adjournment I invited the Defendant to liaise with Mr Silverstone over any additional documents he might be missing but might want to refer to during his submission in the afternoon. He did not take up the invitation.

I am satisfied that the Defendant deliberately chose not to obtain the bundles that had been sent to him. However, notwithstanding that, I am satisfied that he had a full opportunity to present his case in response to the Claimant's application.

The second matter relates to Article 8 of the European Convention on Human Rights (the Convention) and the principle of open justice. Mr Silverstone said that because the Claimant is a member of the judiciary, he did not seek a hearing in private or an anonymity order. He accepted that although a public hearing was likely to result in (further) interference with his client's Article 8 rights, the principle of open justice required such an interference. I agree.

Factual background

Events prior to the Defendant's appeal to the AAC

Between March 2007 and June 2009, the Defendant worked as a trainee cardiac physiologist for the Royal Brompton and Harefield Hospital NHS Trust (the Trust) at Harefield Hospital. In June 2009 he was dismissed for gross misconduct. On 22 January 2010 the Trust referred the Defendant to the Independent Safeguarding Authority (ISA). This was a public body that existed until 1 December 2012, when it merged with the Criminal Records Bureau to form the Disclosure and Barring Service (the DBS).

The Defendant challenged his dismissal in the Employment Tribunal, which dismissed his claim in a judgment handed down in October 2010. The Tribunal found that the Defendant had (a) created forged and/or false documents and online postings; (b) carried out tests on patients that he was not qualified to perform; and (c) informed patients of test results when he should not have done so.

On 3 February 2011 the ISA decided to place the Defendant on the Adults' Barred List. The ISA found that he had committed various improper acts including plagiarism; undertaking work and giving out results that he was not authorised to undertake or give out; providing a false reference to gain employment; and claiming to have qualifications that did not exist or to which he was not entitled.

The Defendant sought permission to appeal the ISA's decision to the AAC. Permission was granted on 21 July 2011.

On 6 June 2012 on the basis of new information which had come to light, the ISA placed the Defendant on the Children's Barred List. The ISA found that Defendant had (among other things) created a Facebook page entitled ‘Gollywogs at Harefield Hospital’, containing homophobic and racist abuse against his former colleagues; created an internet blog with titles including ‘Has Harefield Hospitals Cardiology Department Lied About you?’ and ‘Harefield Hospitals Robert Bell – A Story of a Corrupt Chief Executive’; applied for 14 jobs with Oxford Radcliffe Hospitals NHS Trust, 11 of which involved regulated activity from which he was barred; provided falsified documents to the AAC as part of his appeal; and submitted further fabricated documents as part of his representations to the ISA.

The Defendant sought permission to appeal this second ISA decision to the AAC. Permission was granted on 27 September 2013.

The Defendant's appeals against the two ISA decisions were assigned to the Claimant, in his capacity as an additional judge of the AAC.

At this point I need to deal with proceedings which were brought in the Queen's Bench Division against the Defendant by the Trust and certain employees for harassment and libel: Royal Brompton and Harefield NHS Foundation Trust v Shaikh (HQ 14D 01016). (the QBD Proceedings). On 8 April 2019 Green J heard an application for injunctive relief against the Defendant to restrain him from harassing 29 current and former employees of the Trust. It was alleged that the Defendant had committed over 100 acts of harassment between July 2009 and February 2014. This included publishing malicious, offensive and abusive material on social media and blogging platforms; setting up fake and offensive and defamatory profiles on LinkedIn and Facebook, and using those profiles to send offensive and defamatory messages; repeatedly making fake job applications (containing offensive, defamatory and distressing material) in the name of one of the claimants; sending fake e-mails containing offensive and abusive allegations; making nuisance and silent telephone calls; and making malicious reports and referrals to regulatory and/or examining bodies in the healthcare sector. Green J granted the injunction, concluding that that there was ‘strong evidence that [the Defendant] has engaged in unlawful, persistent and deliberate conduct amounting to unlawful harassment’: [2014] EWHC 1380 (QB), [18].

On 9 May 2014 Sir David Eady (sitting as a judge of the High Court) granted judgment in default against the Defendant in those proceedings and made a final injunction against the Defendant (‘the May 2014 injunction’).

The Defendant's appeals to the AAC

I now turn to the Defendant's appeals to the AAC which brought him into contact with the Claimant. As I shall explain, the appeals were unsuccessful and, in its judgment, the AAC made a number of findings that were severely critical of the Defendant. It is the Claimant's case that the Defendant's campaign of harassment against him is motivated by revenge for these findings and the overall adverse outcome of the appeals.

The Defendant's appeals were heard between 23 June 2014 and 26 June 2014. They were heard by a...