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Cite as: [2000] EWCA Civ 62
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Case No: QBCOF/97/1253/C
FC3/99/6157/C
FC3/99/6785/C
FC3/2000/5212/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Queen's Bench Division Crown Office
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 1 March 2000
LORD JUSTICE PETER GIBSON
LORD JUSTICE SCHIEMANN
and
MR. JUSTICE WILSON
HER MAJESTY'S ATTORNEY GENERAL |
Respondent | |
- and - |
||
LEWIS
FRANK FOLEY and |
1st
Appellant |
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Mr. Guy Sankey Q.C. (instructed by the Treasury Solicitor for the Respondent)
The 1st Appellant Lewis Frank Foley appeared in person during the hearing
(instructions having been withdrawn from Mr. Timothy Straker Q.C. and Mr. Mohammed Hashmot Ullah (instructed by Messrs. Yoga Rajah & Co of London)
Mr. Raymond Croxon Q.C. and Mr. Frank Slevin (instructed by Messrs. Mahmood Southcombe of Ilford for the 2nd Appellant)
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SCHIEMANN: (giving the judgment of the Court):-
1. In what circumstances does the Attorney General need to call evidence to
satisfy the court that he has authorised the making of an application for a
civil proceedings order against an allegedly vexatious litigant? What is the
nature of the evidence which he must call? These are the questions with which
this appeal is concerned. They are questions of some general interest since
there has in recent years been a substantial rise in the number of such orders
which are sought and made. Whereas in the years 1990-1994 15 litigants were
declared vexatious, there were 44 in the years 1995-1999.
2. Lewis and Harry Foley appeal by permission of this court (Millett and
Brooke LJJ) against the making by the Divisional Court (Rose LJ and Hooper J)
of a civil proceedings order against each of them. The permission was limited
to the issue whether proceedings were properly brought in the name of the
Attorney General.
3. Civil proceedings orders are made pursuant to section 42 of the Supreme
Court Act 1981 which, as amended, reads as follows:-
"Restriction of vexatious legal proceedings
(1) If, on an application made by the Attorney General under this section,
the High Court is satisfied that any person has habitually and persistently and
without any reasonable ground --
(a) instituted vexatious civil proceedings, whether in the High Court or any
inferior court, and whether against the same person or against different
persons; or
(b) made vexatious applications in any civil proceedings, whether in the High
Court or any inferior court, and whether instituted by him or another; or
(c) instituted vexatious prosecutions (whether against the same person or
different persons),
the court may, after hearing that person or giving him an opportunity of being
heard, make a civil proceedings order, a criminal proceedings order or an all
proceedings order.
(1A) In this section -
"civil proceedings order" means an order that -
(a) no civil proceedings shall without the leave of the High Court be
instituted in any court by the person against whom the order is made;
(b) any civil proceedings instituted by him in any court before the making of
the order shall not be continued by him without the leave of the High Court;
and
(c) no application (other than one for leave under this section) shall be
made by him, in any civil proceedings instituted in any court by any person,
without the leave of the High Court;
........
(2) An order under subsection (1) may provide that it is to cease to have
effect at the end of a specified period, but shall otherwise remain in force
indefinitely.
(3) Leave for the institution or continuance of, or for the making of an
application in, any civil proceedings by a person who is the subject of an
order for the time being in force under subsection (1) shall not be given
unless the High Court is satisfied that the proceedings or application are not
an abuse of the process of the court in question and that there are reasonable
grounds for the proceedings or application.
(4) No appeal shall lie from a decision of the High Court refusing leave
required by virtue of this section."
4. In this court, Mr Lewis Foley was represented by Mr Timothy Straker Q.C.
and Mr. Ullah and Mr. Harry Foley by Mr. Raymond Croxon Q.C. and Mr. Slevin and
the Attorney General by Mr. Guy Sankey Q.C. We also had before us a careful and
helpful submission (prepared at the Court's request before the Foleys had
obtained legal aid and counsel) by Mr. David Foxton acting as an amicus curiae
for which we express our gratitude. Fairly shortly after Mr. Straker had begun
his submissions Mr. Lewis Foley rose to inform us that he was dispensing with
the further services of his legal team. He then addressed us himself for a
while before deciding that he would reinstruct his legal team. This he did and
Mr. Straker continued with his submissions. However shortly before he had
concluded them Mr. Lewis Foley once more indicated that he did not wish his
legal team to continue to represent him. At this point they departed. We heard
nothing from Mr. Foley which calls for a reasoned response from this court and
which was not contained in either the written or the oral submission of Mr.
Straker which were made with his customary clarity and felicity. Since the
hearing we have received letters from each litigant and from Peter Rubery
Hayward and Terence Patrick Ewing who, having themselves been declared
vexatious litigants some years ago, claim that they acted as unqualified legal
advisers to the Foleys. We do not think it appropriate to consider the matters
referred to in those letters in so far as they go beyond matters ventilated at
the hearing.
5. Before the Divisional Court was a notice of motion signed on behalf of the
Treasury Solicitor intimating that the court would be moved by counsel on
behalf of the Attorney General for a civil proceedings order against each of
the Foleys. The evidence before the Divisional Court on the question whether
the making of the application had been authorised by the Attorney General (in
so far as there was any) was contained in two affidavits sworn respectively on
16th. February 1996 and 10th. July 1996 by Ms Martin. In the first she swore
that she was a solicitor in the Office of the Treasury Solicitor and that she
had conduct of this matter on behalf of the applicant and that she had been
involved "with a view to consideration being given by Her Majesty's Attorney
General as to whether an application should be made to this court for a Civil
Proceedings Order....". In the second affidavit, which was apparently prompted
by a request by Mr. Lewis Foley that she should also refer to a number of other
actions in which he had been involved, she refers to those other actions and
exhibits relevant documents. She goes on to say in paragraph 6:
"I am instructed that a submission was put to the Solicitor General inviting
him to agree to this application being made. A copy went to the Attorney
General who initialled it and the Solicitor General endorsed the submission
with his agreement to the making of the application."
6. The Divisional Court hearing was on 18 February 1997. On that day, or
possibly the day before, the Foleys (at that point unrepresented) raised,
apparently for the first time, an assertion that the application for a civil
proceedings order had not been and was not being made by the Attorney General.
They submitted that in those circumstances the court had no jurisdiction to
make the order. This contention was summarily rejected by the Court in the
following words in the judgment of Rose LJ (with which Hooper J agreed):
"..there is a sufficient evidential indication of the appropriate authority for
the bringing of this application".
7. The submission relied heavily on two passages in judgments of Pill LJ. The
first is a dictum in A-G v Hayward a decision of this court (Staughton,
Henry and Pill LJJ, unreported 10.11.1995). In that case the appellant led
evidence to the effect that the Attorney General had said to him that he had
not been personally consulted about the case. A person in the legal secretariat
to the Law Officers deposed to the contrary. The court accepted that there had
been consultation with the Attorney General. The leading judgment was delivered
by Henry LJ and Pill LJ agreed with it. He however went on to say:
"... in any future applications under section 42, care should in my view be
taken that appropriate information is provided in the affidavit in support of
the application. An application under section 42 can have serious consequences,
and the Attorney-General's involvement by statute should be demonstrated
plainly in the evidence submitted to the court with the application."
Neither of the other Lords Justices expressed any view on that matter. It was
not necessary for them to do so. The other passage is contained in A-G v
John Williams a decision of the Divisional Court (Pill LJ and Newman J,
unreported 22.4.1996). Pill LJ said:
"There is evidence by way of affidavit before the court that a law officer has
personally considered the papers in this case and authorised the making of the
application. Bearing in mind the fundamental right under consideration, the
right to bring proceedings before the courts, it is, in my view, appropriate
that personal consideration is given to any proposed application by a law
officer and that evidence of such consideration appears on the material before
the court."
8. When giving permission to appeal in the present case, Millett LJ indicated
that he was far from convinced that these dicta correctly represented the law
or that any burden of introducing evidence is placed upon the Attorney General
from the outset. However the court thought it right that the law should be
examined on the appeal.
The effect of a civil proceedings order
9. Once a civil proceedings order has been made and any appeal against the
making of that order has been dismissed, its effect is that the vexatious
litigant cannot proceed with any case without the leave of the High Court. This
places him at some disadvantage: in particular he is deprived of the right
which other litigants have to test a decision of the High Court by seeking
permission to appeal to the Court of Appeal.
Who can make the application for a s.42 order?
10. The 1981 Act authorised only the Attorney General to make the application.
The ordinary citizen, no matter how vexed he may have been by a persistent
litigant, cannot make such an application to the court. By section 1 of the Law
Officers Act 1944:
"Any functions authorised ... by any enactment ... to be discharged by the
Attorney General may be discharged by the Solicitor General, if
..... the Attorney General authorises the Solicitor General to act in any
particular case."
11. The Law Officers Act 1997 has now replaced those provisions. It provides
in section 1:
"(1) Any function of the Attorney General may be exercised by the Solicitor
General.
(2) Anything done by or in relation to the Solicitor General in the exercise
of or in connection with a function of the Attorney General has effect as if
done by or in relation to the Attorney General."
12. However that Act was not in force at the time that consideration was given
to the institution of the present proceedings. The argument in front of us has
proceeded on the basis that the 1997 Act has no direct application.
Is there a burden on the Attorney General to lead evidence that the
application is made by him after proper consideration of the relevant
material?
13. It was submitted on behalf of the appellants that the Attorney General
could not succeed in an application under s.42 in the absence of evidence of
his authorisation of the proceedings. We reject that submission. The Attorney
General, like any other litigant, is entitled to employ solicitors and counsel
to make an application on his behalf. In the absence of any challenge,
solicitors making such an application are assumed to have authority so to do
from their client. If there is a challenge to the authority of the solicitor it
should be made as soon as possible. If it succeeds then there will be no need
to examine the substance of the dispute. This has long been the case.
14. In Russian Commercial and Industrial Bank v Comptoir d'Escompte de
Mulhouse [1923] 2 KB 630 at 671-2 Atkin L.J. said:
"I desire to add that even if there were a question of defective authority to
sue, in my judgment it was not open to the defendants to raise the point as a
matter of defence. The judgment of Warrington J. in the case of Richmond v
Branson [1914] 1 Ch 968, 974 appears to me to state the law in a
matter of this kind, where the question is whether the action has been brought
with the authority of an existing principal, himself capable of suing. In that
case the learned judge says: "But the real question is the authority of the
solicitor. Is that a question which can be raised as a relevant issue in the
action and at the trial? No authority has been cited in support of the
affirmative of such a proposition, and, in my opinion, it is impossible,
according to the ordinary practice and procedure of the Court, to justify that
proposition. The business of this Court could not be carried on if one were
not entitled to assume the authority of the solicitor unless and until that
authority has been disputed and shewn not to exist in the proper form of
proceeding, namely, a substantive application on the part of the parties
concerned to stay the proceedings on the ground of want of authority."
15. In Warwick R.D.C v Miller-Mead [1962] 1 Ch 441 Lord Evershed M.R. said this at page 215:
"... it was unfortunate and (strictly) quite wrong that the point taken by
the defendant in the present proceedings--whether it was in effect a mere
challenge of the solicitors' authority to issue the writ in the council's name
or whether it was the real point involved in the present appeal, as it emerged
in this court--was taken by way of "preliminary objection" on the hearing of
the motion. In my judgment, if the defendant sought to stay the present
proceedings or have them dismissed as disclosing no cause of action (which is
the real point now raised by the defendant), and, equally, if the defendant
sought to challenge the solicitors' authority to initiate the present action in
the council's name and make the solicitors personally liable to pay the
defendant's costs, then in either case the defendant should have issued an
appropriate summons or process in the action for the purpose."
Danckwerts LJ added at page 463:
"In this case it is clear that the course of the proceedings has quite failed
to comply with the proper procedure. The council began the proceedings on 21
July 1961, by a writ claiming that the defendant was causing a statutory
nuisance, and on the same day produced a notice of motion for an interlocutory
injunction. It was this notice of motion and nothing else which was before
Widgery J as vacation judge. A preliminary objection was taken on behalf of
the defendant, but it was an objection which went far beyond the question of
interlocutory relief. It was an attack upon the existence of the action. If
this attack was to be pursued, the defendant ought to have been required to
formulate and serve either a motion or summons for the dismissal of the action.
Nothing of the sort occurred, and, in my opinion, the defendant was wholly out
of order and his objection should not have been heard at this stage of the
proceedings."
16. The contention of lack of authority is in every sense a preliminary - and,
if successful, fatal - point; and it should be taken by early, interlocutory
application to stay the proceedings. Accordingly we expect such an issue to
emerge in the following way:
(1) in the claim form, and supporting witness statement or affidavit, as now
provided by R 94.15 scheduled to the Civil Procedure Rules, the Treasury
Solicitor will, merely by his references to the Attorney General as the
applicant and to himself as the solicitor acting in the matter, represent that
the Attorney makes the application and authorises him to act on his behalf in
the proceedings;
(2) there is no need for evidence in support of such representations to be
given at that stage;
(3) if a respondent seeks to challenge such representations, he should do so
by the early filing of an application notice for a stay, supported by a witness
statement;
(4) the court would be likely to consider that a respondent who mounts such a
challenge had acted unreasonably in not having raised the matter with the
Treasury Solicitor by letter prior to issue of the application; on receipt of
such a letter, the Treasury Solicitor would presumably wish to explain, in the
light of what has been set out above, the circumstances by reason of which he
contends he is authorised to act on behalf of the Attorney General in the
proceedings;
(5) the court would also be likely to consider that a respondent had acted
unreasonably in filing an application notice to stay without the inclusion in
or attached to his witness statement of some evidence which raises doubt
as to whether the Attorney General had made the application. The absence of a
letter - or a satisfactory letter - from the Treasury Solicitor in answer to
the enquiry suggested at (4) might constitute such evidence; or there could be
other evidence the nature of which it would be foolish for us here to guess.
(6) The Attorney General would respond to the application in the ordinary
way, i.e. by service of a witness statement. The author would need to be
someone who could give admissible evidence that it was the Attorney General
(perhaps acting by the Solicitor General) who had made the application and had
authorised the Treasury Solicitor to act.
(7) The application to stay would be listed in the Crown Office.
17. It will be seen that in our judgment it is for him who challenges the fact
that the solicitor has authority to commence proceedings to lead evidence which
lends support to that assertion. In the absence of such evidence we see no need
for the Attorney General to lead evidence in rebuttal. We are conscious of
submissions to the effect that a constitutional right is at stake. Counsel has
not sought to argue that the making of a section 42 order is in itself
invariably a breach of the litigant's constitutional rights. It should be borne
in mind that no order will be made by the court unless it is satisfied as
required by the section. The citizen's primary safeguard is the court not the
Attorney General. The purpose of the involvement of the Attorney General is to
save the citizen from applications by his fellow citizens and indeed to save
the court from having to hear such applications. We suspect that the dicta by
Pill LJ cited above were motivated by a consciousness that litigants in this
type of litigation tend to take every conceivable point and there may be merit
in meeting points which might be taken before they are in fact taken. They
cannot, in our respectful judgment, be taken as authority for the proposition
that a section 42 application purportedly made on the Attorney General's behalf
by the Treasury Solicitor must be held to be unauthorised in the absence of
evidence to the contrary.
Once a challenge has been made supported by evidence, what evidence is
required from the Attorney General?
18. The answer to this will depend on the nature of the evidence led in
support of the challenge.
The present case
19. The challenge was made far too late. It was supported by affidavits sworn
on the date of the hearing which originally contained two paragraphs asserting
a belief in each of the Foleys that the application was not made by the
Attorney General or authorised by him. Those two paragraphs were, we
understand, expressly disavowed by the Foleys before the Divisional Court and
were struck out from the affidavit. No ground for any such belief was advanced.
In those circumstances there was no need for the Attorney General to file any
further affidavits and the Divisional Court was entitled to make the order
which it made.
20. In the event, counsel for the Attorney General, by way of making assurance
doubly sure, did seek to adduce in evidence before us a third affidavit, sworn
after the Divisional Court hearing, by Mr. Jonathan Jones who at the relevant
time was employed in the Legal Secretariat to the Law Officers. He confirms
that the application was made with the authority of the Law Officers. He swears
that on 29 March 1995 he put a submission dealing with the cases of the Foleys
to both the Law Officers. He continues
"The Attorney General initialled his copy of the submission on 30 March 1995
thereby authorising the Solicitor General to deal with the matter in accordance
with Section 1(1)(c) of the Law Officers Act 1944. The Solicitor General
endorsed his agreement to the making of the Section 42 application on his copy
of the submission on 29 March 1995."
21. These dates led to submissions on behalf of the Foleys that since the
Solicitor General appears to have considered the matter on the day before the
Attorney General had decided to authorise the Solicitor General to discharge
this function it follows that, at the time that the matter was considered by
him, the Solicitor General had no authority to consider it. Such submissions
were premised on the fact that, at the time of the consideration by the
Solicitor General and the making of the application, the Law Officers Act 1997
was not in force. Assuming in favour of the appellants that it is the launching
of proceedings rather than the appearance of counsel before the court which is
the latest time in relation to which authorisation has to be considered, we
rule on these submissions on the basis that the 1997 Act is of no relevance.
Even so, since the Originating Motion containing the application was not issued
by the court until well after the 30th March 1995 these submissions lack any
force. It is the making of the application which has to be authorised. It
clearly was. The fact that, before receiving authority from the Attorney
General, the Solicitor General had applied his mind to the facts of the case in
the, as it turned out fully justified, expectation that he would obtain
specific authority to make an application if he thought fit, does not mean
either that that he did not apply his mind properly to the case or that at the
time the application was made it he was not authorised to discharge on behalf
of the Attorney General the function of making an application under s.42 of the
Supreme Court Act 1981.
22. No doubt foreseeing that this latest affidavit hardly lent strength to the
Foleys' case, counsel submitted that it should not be admitted on the basis
that the tests in Ladd v Marshall [1954] 1 WLR 1489 were not satisfied.
We looked at it, taking the view that there was ample reason for the
non-production of this evidence before the Divisional Court - no point had
clearly been taken on the proper constitution of the action and the Attorney
General's authority until the date of the hearing in that court and it could
not be foreseen that the Foleys would submit that further evidence as to
authority was requisite. As we have held, in fact it was not. On the view we
take of the law this affidavit is unnecessary and could be excluded on that
ground. However, the appellants having argued for a different of the view of
the law, we think it right to admit it.
23. We mention finally some common sense points. The appeal is limited to the
question whether it has been shown that the Attorney General gave his consent
to the making of an application to have the Foleys declared vexatious. It has
not been suggested that counsel appearing for the Attorney General in the
appeal has not been instructed to resist the allowing of the appeal. This leads
one to the conclusion that if we had been minded to allow the appeal on the
ground sought all that would have happened would have been a new application by
the Attorney General in which an affidavit on the lines of the Jones affidavit
would have been placed before the court and the court would then have had to
consider all over again whether or no the conditions in section 42 had been
fulfilled. All this would serve no useful purpose.
24. Mr. Lewis Foley and Mr. Croxon asked the court to order the Attorney
General to produce the submission which had been made to him and which was
referred to in the affidavits sworn on his behalf. Mr. Sankey offered to
produce it to the court but not to the Foleys. We did not accept that offer. In
general the court will indeed order the production to the other side of any
document referred to in an affidavit. Where one is concerned with a document
passing between a litigant and his solicitor, or a document containing advice
to a minister circulating within a government department, complex issues can
arise. We saw no need to address them in the context of this case. The court
will not make an order unless there is reason to suppose that compliance with
the order will in some way advance the ends of justice. We heard no coherent
argument to suggest that this would be the case if we made the order sought by
Mr. Foley and Mr. Croxon. This was a document referred to in, as we hold, an
unnecessary affidavit. We therefore refuse to make an order for disclosure.
25. We therefore dismiss the appeals.
Reasons for refusing leave to appeal on other grounds
26. At the hearing before us, permission was sought by Mr. Croxon to expand
the grounds of appeal beyond the single point upon which permission had already
been given. We refused that application for reasons which follow and raise no
points of general interest.
27. Mr. Croxon applies for leave to appeal on the grounds set out in
paragraphs 9-11 and 17-22 of the notice of appeal by Harry Foley dated 29
August 1997. The notice of appeal is irregular in as much as it incorporates
two points for which leave was not given, but it is convenient for the purposes
of this judgment to refer to it and to its numbering.
28. The first point sought to be argued is that Mr. Harry Foley was not given
by the Divisional Court a fair opportunity to argue some points "in his
skeleton argument relating to the lawful appointment of the Law Officers and
their existence in law and whether their decisions to apply for a Civil
Proceedings Order against the 2 Appellant might be subsequently challenged in
the Divisional Court". The second point is that "the Divisional Court erred in
law in making the Civil proceedings order against the 2 Appellant for an
indefinite period ..... which was disproportionate in effect without
specifically considering whether the said order was individually merited in the
circumstances of the 2 appellant seriatim from those pertaining to that of the
1 Appellant".
29. Following delivery of the judgment in the Divisional Court Mr. Harry Foley
said this: "I wish leave to appeal, sir. You have not heard all my evidence of
perjury. You did not give me the time to put my case forward on perjury which
is on your desk now." The Court however, refused him leave.
30. It is common ground that this court has jurisdiction to expand a grant of
permission to appeal but that this power should be sparingly exercised:
Yorkshire Bank Plc v Hall [1999] 1 WLR 1713, at p.1725.
31. The proposed grounds of appeal relating to the appointment of the Law
Officers were not pursued by Mr Croxon.
32. So far as evidence is concerned, Mr. Harry Foley was permitted to adduce
an affidavit sworn by him on 18th February 1996 - the date of the
hearing before the Divisional Court. It contains much argument and no relevant
admissible evidence. The substance of the arguable points covered in the
affidavit are dealt with in the Divisional Court's judgment. As we understood
Mr. Croxon he did not wish to adduce more evidence at this stage.
33. So far as submissions before the Divisional Court on the first point are
concerned, they cover much the same ground as those taken by his brother. Mr
Harry Foley had submitted a closely typed skeleton argument of which the first
12 pages are substantially concerned with this point. Many authorities are
cited and quoted.
34. We have seen nothing in the papers and heard nothing in the submissions to
lead us to suppose that Mr. Foley was unreasonably denied any opportunity to
put material before the court whether by way of evidence or submission which
might have advanced his case further.
35. In the course of submissions, Mr. Croxon has clarified the second main
point sought to be argued. The substance of the point is that Mr. Harry Foley
wished at the time of the hearing before the Divisional Court and wishes now to
argue that any civil proceedings order against him should be limited in time
and not be indefinite. He points out that there is no mechanism for discharging
an indefinite civil proceedings order and that to be classed as a vexatious
litigant is something no-one would wish to be. He submits that Mr. Foley would
have liked to persuade the Divisional Court that the facts of the 8 actions in
which he was apparently involved did not show such behaviour in him as to
warrant the making of an indefinite order. Mr. Foley would have liked to have
shown that in at least some of the actions which had been struck out he played
a minor or non-existent part. Mr. Harry Foley would like to have put material
before the Divisional Court to the effect that Mr. Lewis Foley was using his
brother's name without authority.
36. Such arguments are potentially a good reason for either not making an
order or for limiting its effect. To take an extreme example, clearly if a
litigant repeatedly starts actions or applications in someone else's name
without his knowledge then it would be unjust to pronounce that other
vexatious. It is not submitted that the present case is such an extreme case
but it is submitted that some of the elements of that position may be found in
the present case.
37. However, these submissions face a major obstacle. Neither the evidence nor
the written submissions of Mr. Harry Foley give any indication that this type
of argument was sought to be advanced before the Divisional Court. In the
circumstances, there can be no possible criticism of the Divisional Court for
not addressing it. Even the affidavit sworn by Mr. Harry Foley after the
judgment of the Divisional Court in support of his application for permission
to appeal gives no hint that any arguments based on his brother's alleged lack
of authority to pursue the various actions would be pursued in this court.
38. Mr. Croxon submitted that, even if the Divisional Court be beyond
criticism in that respect, we should permit these points to be raised in order
to do justice to his client who had, like so many litigants in person, been
remiss in getting his tackle in order because he did not know what he was doing
and was perhaps too much under the influence of his brother who was also not
very clear about what had to be done. We are not persuaded by these
submissions. Such submissions could only succeed if there were significant
evidence to support them. Even now there is none.
39. Finally Mr. Croxon submitted that the Divisional Court had not applied its
mind to the question whether it would be right to make a limited as opposed to
an indefinite order. He submitted that the involvement of his client in the 8
actions which were laid at his door by the Divisional Court could be seen, by a
study of the files exhibited to the affidavits sworn on behalf of the Attorney
General, to have been less than full blooded. It is clear from the transcript
of judgment that the Divisional Court twice referred to the need to consider
whether or not the order should be made indefinite. This shows that it did
apply its mind to the question. The prospect of a minute examination of the 8
case files showing that the making of an indefinite order was outside the
discretion of the Divisional Court is not such that it would be right to give
leave for that point to be argued, the more so since this court has already
refused so to do.
(Order does not form part of the approved judgment.)