Chapter Version 1.1 [30MAR2013]
To understand Civil Procedures, one has to start with a bit of history.
In 1215 the Magna Carta was signed by King John. He didn't want to do it, but (at the time, and in the circumstances) he didn't have much choice. It formed a Treaty between The People and the Monarchs which - fundamentally - took the "Law" out of the hands of the English Monarchs and placed it firmly in the hands of the Common People - via Juries. The Juries were to use their Common Sense to decide on innocence or guilt, based on what 'they thought were the rights and wrongs of a situation'. It nullified the idea of "The Divine Right of Kings".
(There were actually two kinds of Jury - the Grand Jury and the Petty Jury. The Grand Jury would decide who to Indict to Trial, and the Petty Jury or 12 would decide guilt/innocence at the Trial).
Thus a method of catering for Criminal situations (i.e. where another Human Being is a victim), and applying Justice accordingly, was written down to form the foundation of the British Constitution.
Now, this mechanism could also cover Civil situations. Because, when all is said and done, a Jury is capable of deciding 'right from wrong', even in the case of mere 'disputes' (i.e. "I say this … you say that … etc … and you've gone too far this time, Sir Percy …."). And some form of compromise was very necessary because, historically, 'disputes were often settled by swords' - which could be considered to be Criminal Acts. And, it was decided that there may be a better way of settling disputes.
Thus, there sprung up, all over the country, people who said they would be prepared to ARBITRATE disputes.
For a fee.
And they did. It became a 'Privately owned and run business', for some people.
The problem was, of course, the things we call 'backhanders'. Which led to all kinds of ludicrous arbitrations. This led to the rage of the Northern Barons (especially over 'taxation'), who marched down south, and pinned John down, in Windsor Castle. And forced him to negotiate a once-and-for-all Treaty at Runnymede, in June 1215.
But the fundamental idea of ARBITRATION was still possible, whether Jury did it, or whether an individual did it (assuming the individual did it honestly and impartially). Because there is nothing to stop 2 Parties in dispute, going to an impartial 3rd Party, and asking them to arbitrate. If that was the free will choice of both. It is nothing more than an extension of a natural social situation, where two friends ask a third friend for their point of view. Of course (and obviously), they would both need to:
Trust the Arbitrator, and
Consent to the Arbitration, and
Agree (beforehand) to abide by the Arbitration.
Now, today, the same situation actually exists. Criminal matters are heard by Petty Juries, and Civil matters are heard by Arbitrators in Civil Courts aka Star Chambers.
But there are a few serious dissimilarities in the way it is implemented today. These are what turns a Civil Court into a Star Chamber. It's the exact same situation as above, but:
At least one Party (usually YOU) won't know the Arbitrator, and therefore will have no idea whether or not he or she can be trusted, and
You are deceived into thinking you don't have to consent, so they have to collect your consent by devious means (primarily by assuming that- if you participate without objection - then your consent can be assumed), and
They don't establish, beforehand, whether or not you are prepared to abide by the Arbitration, in fact they flex muscles (brainwashed) in order to enforce the Arbitration upon you.
BUT, if you look at the Civil Procedure Rules, in fact the very first one, it's sort-of there, in black & white (my highlighting):
Rule 1.1 The overriding objective (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. (2) Dealing with a case justly includes, so far as is practicable— (a) ensuring that the parties are on an equal footing;
… and so on.
And then you also look at the Oath of Office taken by all of today's Arbitrators (i.e. Judges & Magistrates) (my underlining):
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. "
Couldn't ask for more than that, could we?
But, we don't get that, do we?
We might get something along those lines if Party 1 is a Human Being, and Party 2 is a Human Being. But that is very, very, rare!
Usually it is Party 1 is a Human Being, and Party 2 is a CORPORATION (i.e. a 'group').
And, very often a possible (ultimate) penalty is 'a term of imprisonment' or an 'eviction into homelessness'.
So, in that case, since one of the Parties can be jailed, or rendered homeless, but the other one can't, how can CPR 1.1 2(a), i.e. "parties on an equal footing"- ever be possible?
So, isn't it about time we stood up for Human Beings, and pointed this out?
I don't know anyone who has.
How would we point this out?
Well, here's what I would do.
1. At the outset I would ask the Judge if the proceedings will run under the Civil Procedure Rules. He or she would obviously answer: "Yes".
2. I would then ask the Judge if he or she was going to act impartially in accordance with their Oath of Office. They would probably get the wind up at that question, but they would have to seriously prevaricate, or answer "Yes". They may say: "I don't have to answer that", I would say: "As a Public Servant, you do, because - as a Member of the Public - and I'm requesting it. You can consider it a Freedom of Information request if you wish".
3. Daggers would be looked my way, but I wouldn't care. If the Judge says nothing (which is likely), then I'm entitled to assume the lack of objection constitutes a "Yes". Upon the response "Yes", or lack of objection (after, perhaps, some prompting), I would say: "I hear your Oath, and I acknowledge your Oath, and I accept your Oath, and now we have a binding Contract. What penalties are you able to impose against me, if you find against me?".
4. The judge will tell me. If a term of imprisonment is a possible penalty (which is highly likely), then I would say: "As a Human Being, quite obviously I could be imprisoned. However the other Party is a grouping, under a Legal Name, and thus impossible to imprison - should you find in my favour. Would you please look up CPR Rule 1.1, and explain how - in those circumstances - myself and the other Party could possibly be 'on an equal footing' at the very outset?" Please Note: 'An eviction" would also fall into this category i.e. I could be evicted, but the Bank/Building Society could NOT be rendered 'homeless'.
5. I'm positive that this would cause a great kerfuffle. Very simply because, if there is any prevarication at all, it would give me the chance to say: "You are giving me reasons to think I can't trust you, even though we have established a lawfully-binding Contract. So I suggest you consider recusing yourself. The only other possibilities - I suggest - are to dismiss this case as 'impossible to place on an equal footing at the outset' OR to agree that only penalties that could be applied against the other Party are penalties that could be applied against me. You do, after all, have discretion in that respect".
6. I firmly believe this would severely limit their claws.
7. I would also ask: "Does your Arbitration include looking at flaws in the procedures, and dismissing - where necessary - in accordance with Case Law, or do you plan to overlook those aspects?". He or she would have to agree not to overlook such aspects, otherwise it would give me the chance to say: "I don't believe I can trust your judgement, and I suggest you recuse yourself immediately". (I'd hopefully be looking around for nods of agreement from supporters in the Public Gallery. I'd possibly be pointing out that they are capable of writing sworn Affidavits of what has happened so far).
8. I would then ask: "Does your arbitration require the use of valid first-hand evidence in order to come to a finding? Or are you prepared to accept hearsay in the form of computer printouts, etc?". The Judge would say: "I will accept the prosecution's evidence". So I would say: "The prosecution? That's interesting! I understand them to simply be the 'other Party' in this matter. Will you insist that THE OTHER PARTY'S evidence is to Criminal Standards, in other words 'first-hand only', no hearsay, sworn under Oath and penalty of Perjury?". The Judge will say: "I do not need to apply that standard". So it's: "I can't trust you and your method of arbitration, you need to recuse yourself immediately, or face arrest for unlawfully administering your Oath contrary to Section 13 of the Statutory Declarations Act 1835". If, on the other hand, the Judge agrees to assess to 'criminal standards', I would then say: "Which means that 'I believes' and 'I thinks', and so on, are to be rejected as evidence. That only 'I know, because I have seen or heard directly with my own eyes and/or ears' is acceptable as evidence. It means that, doesn't it? So every statement they make against me will be thoroughly scrutinised, to ensure that there is cast-iron proof of each claim, won't there? That is, after all, 'to criminal standards', is it not?"
9. At this point the likelihood is the Judge will be so pissed off, they would turn to (what they call) 'the prosecution', and ask them to start with their blurb. This would constitute "unlawfully administering their Oath". As soon as they did that, I would cut in and say: "Right, you are under Citizen's Arrest for unlawfully administering your Oath of Office. Stay where you are. We had an agreed and lawfully-binding Contract, witnessed by everyone in this room, and you just breached it. If you check any copy of Archbold you will see that - THE VERY FACT YOU ARE SITTING - is prima facie evidence. Would someone call the Police immediately, please? Such that this individual can be transferred into their safe custody".
10. When the Police arrived I would tell then to arrest the Judge for "Unlawfully administering his or her Oath contrary to Section 13 of the Statutory Declarations Acts 1835, and that ,I and those in the Public Gallery, will be happy to accompany them to the Police Station, or make their own way there, in order to swear out Affidavits to support the Charge". This is a link to a template of the Indictment. I would have a copy of this printed out, in readiness to be filled in.
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