Important to note that it was stated by the Parliamentary and Health Service Ombudsman on the 22 July 2011, that Newcastle upon Tyne County Court were responsible for "maladministration" regarding part 3 and part 4 of this statement.
On 15th November 2010, a complex 3 day trial between me and the National Association of the Citizens Advice Bureau started. I was in no way capable of dealing with it by myself.
An Advocate who was working for Pathways, which is part of Mental Health Matters was not allowed to accompany me in to a public court and sit beside me to make sure I understood what was going on inside of court.
I was told by Judge Walton, the only way he could sit beside me in court was if he became my “McKenzie friend” and represented me in court.
He was never asked too, or expected to represent me. He was just meant to be there to make sure a brain injury victim understood what was happening and was being treat fairly in court.
Judge Walton ruled that my advocate was not allowed in court to sit with me.
So bearing in mind what I have just said and the fact I was not entitled to legal aid, I will now give reasons why I believe an unfair trial took place.
Under the Human Rights Act 1998, every UK citizen is entitled to proceed to a fair trial in this country. I believe these Rights were taken away from me by the Newcastle Upon Tyne County Courts.
1) One of the reasons why I believed that I entered into an unfair trial, is based on medical records/evidence that was submitted into Court:
a) Statement of my GP, Dr R G Fairs, states “There is no doubt in my mind that he (Brian Nesbitt) is not well enough to deal with the process of litigation on his own” and “my opinion is that he does need help and is not well enough to pursue this by his own efforts”.
b) Statement of Dr Griffiths, the Consultant Clinical Neuropsychologist states “during consultations or legal proceedings, he is quickly overwhelmed, becomes anxious and is unable to understand anything that is going on. Therefore, having witnessed him both in these situations and conducted formal psychometric testing on this man, my opinion is that he lacks capacity to take part independently in legal proceedings, but he does have the capacity to instruct”. Then states “I feel that unless Mr Nesbitt has adequate advocacy this represents an abuse of my client and would question the validity of the hearings.” In a later report, Dr Griffiths goes on to state “My opinion remains the same as in my email to Emile Batar. I feel that Mr Nesbitt is capable of instructing a solicitor, but not equipped to conduct the case independently and that is essential that someone do this on his behalf”.
c) And in the “Certificate As To Capacity To Conduct Proceedings” form, Dr Griffiths opinion, is that I am a person who lacks capacity and is incapable of conducting the following proceedings – “A county Court claim issued by Mr Nesbitt against the Association of Citizen Advice Bureaux who he claims compromised a claim he had with the Employment Tribunal against his wishes”.
All professional Consultants agreed that I was not capable of independently seeking justice in such a complex 3 day trial because of my “hidden disability”, which is a serious brain injury.
But, during the complex 3 day trial, I believe that my disability stopped me from having a fair trial because of the reasons I have just stated and will now explain in more detail of what actually occurred during trial.
• The Defendants barrister opened proceedings. I was not given the opportunity to reply. My mind felt under pressure straight away.
• I was then asked to stand in the witness box. Again, I felt pressurised. But I believe I handled that situation well.
• Then it was my turn to call witnesses. I admit, that I was warned by Judge Walton, regarding what I am allowed to say to the witnesses. But I still called them to stand in the witness box because they were involved with, at that time, my present day circumstances. I thought I could handle that situation, but I didn’t. I wanted honest answers in the part they played in the termination of my employment contract. I do not believe that I got honest answers. This again placed me under pressure and made me feel “overwhelmed” and “anxious” where I was “unable to understand anything that was going on”.
• The Defendant then took to the witness stand, where I asked questions. Again questions that I asked were simply not being answered. The judge had to step in on a number of occasions. Again, I felt angry and pressurised, but I thought that I handled the situation well. It must be noted that I believed that I did not have vital evidence to prove that what the Defendant was saying was not true. The reasons are included in this statement.
• Then the Defendant’s barrister gave his closing speech which wound me up to no end. It is impossible to put into words, the effect that his speech had on my mind. My disability (brain injury) overtook my ability to keep control of my train of thoughts (thinking correctly).
• So when I was asked to give my closing speech, my brain was simply not functioning correctly. I did not know what I was supposed to say. I just forgot about all the evidence that I had collected for trial. I did not know what was happening around me. I was totally confused. This is when the opinion/statement, by Dr Griffiths, “during consultations or legal proceedings, he is quickly overwhelmed, becomes anxious and is unable to understand anything that is going on. Therefore, having witnessed him both in these situations and conducted formal psychometric testing on this man, my opinion is that he lacks capacity to take part independently in legal proceedings”, actually became true and happened in reality.
• I admit that Judge Walton asked me if I would like a ten minute break to gather my thoughts. I turned the opportunity down. I believe the reason why I turned the opportunity down is hard to understand, but was because my brain was simply not functioning correctly.
• I also believe that the statement written by Dr Griffiths, “I feel that unless Mr Nesbitt has adequate advocacy this represents an abuse of my client and would question the validity of the hearings.” should be taken into consideration regarding what happened at trial because I was refused to be allowed an advocate to sit with me inside of any Court Hearing.
2) Another reason regarding unfair trial, is because the evidence that I wanted to be submitted into Court as part of the bundle was not allowed to be part of the actual bundle:
• I prepared the actual trial bundle which was open to be viewed by the judge. But it was sent back to me without being looked at.
• So the “parties” did not agree to the prepared bundle for trial.
• My evidence was submitted into Court inside of a suitcase on the day of trial and not before. The suitcase was never opened. My evidence was not considered, it just remained ignored.
3) Another reason, is because I asked the judge to issue a Court Order upon the Employment Tribunal Services:
• But no response was given to that Court Order by the Employment Tribunal Services.
• Statement by Judge Walton states, “I do not know why the Order addressed to the Employment Services has not been served. It should have been”.
• So no Court Order was actually served upon the Employment Tribunal Services, which I have the proof of.
• So, evidence that I asked to obtain, was not made available for the trial because of "maladministration".
• Proof that ACAS’s versions of events were different to the Employment Tribunal Services version of events went unnoticed by the Court.
• Version of events that was vital to this case.
4) Another reason, was because the Court Order that was issued to ACAS was not answered correctly:
• I asked for certain evidence.
• Statement, written by ACAS employee, John Burkitt, in response to Court Order states “We can confirm that there is no such trace of any such witness statement on file and ACAS has no knowledge of the same.”
• Whereas, in correspondence, dated 10th November 2008, written by an ACAS employee, P Pluck, it states “You made reference to the ACAS Conciliator referring at a Tribunal hearing to hand-written notes. I can confirm that these do exist and have not been disclosed to you.”
• This is proof that ACAS did not submit vital evidence into the Court after a Court Order had been served.
• Statement by Judge Walton states, “If ACAS have not complied with the Order addressed to them Mr Nesbitt should as a matter of urgency draw their attention to what has not been provided and ask for a written response setting out why the document has not been disclosed”. I spoke to John Burkitt on the telephone who refused to answer any questions that I put to him, he refused to put anything in writing and told me to get back in touch with the Courts, for a second Court Order to be sent out to him. He said this to me on Thursday 11th November 2010, when he knew that the trial was starting, Monday 15th November 2010. He knew it was an impossibility to achieve.
• So, more vital evidence was missing from trial, which meant "maladministration" had occurred.
5) Another reason, was because two witnesses whom I summoned to Court were discharged by Judge Walton:
• Because of this, Judge Rennie, who allowed false instrument to become legally binding, version of events, which are different to ACAS’s, were kept secret and/or separate from this trial.
• And Juliet Abraham, who submited a false instrument into court, version of events, which are different to both ACAS’s and the Employment Tribunal Services version of events were kept secret and/or hidden from this trial.
• So the fact that nobodies versions of events would actually match up, or be in anyway similar to one another’s, went totally unnoticed by the Court.
• Both witnesses were directly involved with the termination of my employment contract, which is what part of this case was actually about.
• Statement by Judge Walton states, “As I understand it the issue for the Court is not whether Mr Nesbitt’s employment was lawfully terminated, but whether he was properly represented by CAB”.
• Whereas, the reason why I was claiming professional negligence/misrepresentation against the Defendant, was based on the fact that my employment contract was unlawfully terminated.
6) I also requested a statement, placed on record, by District Judge Large on the date, 9th April 2008, in a hearing:
• Statement by Judge Walton states, “I know nothing of a statement given to District Judge Large”.
• Whereas, it was a statement given by District Judge Large that I required.
• District Judge Large said I could use his recorded statement in court in the future if I wished.
• I requested a copy of the statement, but was refused. No reason has been given by anybody from within the Court.
• Statement by District Judge Large was not noticed at trial.
• I believe that it was an important notice on how disgusting and unfair he knew that I was being treat inside of court.
Also, Under the Human Rights Act
Under Article 6: Right to a fair trial. “To fall within Article 6, the civil dispute does not necessarily have to be in a court. If the procedure involves the decisive settlement of a genuine, serious dispute, for example concerning a right or obligation (not merely the exercise of discretion), Article 6 may apply.”
I believe that the termination of a victim of discrimination’s employment contract without the victim of discrimination’s knowledge or consent falls into this category.
And because, in my case, the victim of discrimination is a serious brain injury victim, I believe Article 6 statements “However, legal aid may be required by Article 6 if the case or proceedings are so complex that you cannot be expected to present the case yourself” and “the right to present your case and evidence to the court under conditions which do not place you at a substantial disadvantage when compared with the other party” applies to me (the Claimant).
So I believe that the trial that took place on the dates, 15th – 17th November 2010, was an unfair hearing because of the two statements in the afore mentioned paragraph taken from the Human Rights Act under Article 6.
Under Article 14: Freedom from discrimination. I was not free from discrimination inside my place of employment. That is why I submitted a claim for disability discrimination. Evidence shows that my only aim to achieve was:
• Be given a fair job.
• Treat fair by employers.
• Be given job description just like every other factory worker who worked at Dunlop Tyres Ltd. So extra workload which could trigger off epileptic seizures would not happen again in future inside of my place of employment.
Article 14, my chance of “freedom from discrimination” inside of employment, did not happen because of the “ostensible authority” shown by Wilf Holt of Gateshead Citizens Advice Bureau and because of the judgments made since.
So at the very least after taking all of the facts of what has happened, the way I have been dealt with by legal professionals and the Human Right Act legislation into consideration, I believe this claim still deserves a fair trial.
Appeal To Appeal
The reason why I have went through everything in detail is because the above points are what I placed in front of the appeal to appeal judge via video link up.
That appeal lasted about 20 minutes.
And it was judged that all of the above did not make any difference to the case which I originally set out.
The appeal to appeal judged that:-
● Judge Walton was correct in making a judgement on whether I had actually agreed to the agreement over the telephone or not. Whereas no evidence exists that I did, because no agreement was ever read out to me over the telephone. So this was not what I set my case out for.
● Judge Walton was correct in ignoring what my claim/case was actually about.
● Judge Walton was correct in not looking at my medical documents (I witnessed Judge Walton read them, so he actually just ignored them!) “in case it influenced his judgement”.
● Judge Walton was correct in not allowing me to submit my evidence because there was too much.
● Judge Walton’s “maladministration” of not serving Court Orders which withheld vital evidence and information had “no bearing on the outcome of this case”.