England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(Lord Justice Latham and Mr Justice Forbes)

		Royal Courts of Justice Strand London WC2 Wednesday 19th December, 2001

1. LORD JUSTICE BUXTON: This is an application by Mr Michael Boothe-Chambers (also known as Mike Chambers) to appeal from a vexatious litigant order that was made against him by the Divisional Court on 14th June 2001 at the instance of Her Majesty's Attorney-General.
2. This application was originally listed to be heard before me on 3rd October 2001. On that occasion Mr Boothe-Chambers did not attend at the hour required. I accordingly struck the application out for want of prosecution, subject to Mr Boothe-Chambers having licence to make a written application to the court as to why the matter should be restored. He did indeed write to the court explaining that he had fully intended to be present, but had suffered difficulties through travelling.
3. The matter was accordingly listed again on 8th November and placed in the list not before 2.00 o'clock to accommodate Mr Boothe-Chambers' travelling difficulties. Mr Boothe-Chambers contacted the court and, as I understand it, indicated that he would be abroad on that date and therefore would not be able to attend. With some hesitation, I ordered that the matter should be relisted again on a date when Mr Boothe-Chambers would actually be in the country and at a time which would make it more easy for him to be present. That is why it is heard today, on 19th December, and listed for 2.00 o'clock.
4. I have received and have carefully read a detailed set of grounds of appeal that Mr Boothe-Chambers wishes to put before this court. He has also addressed me today. It is fair to say that in addressing me today he has concentrated on one aspect of the matter and not dealt generally with the grounds of appeal. But I think it right in this judgment to address not only what Mr Boothe-Chambers has said today, but, in suitably brief terms, what he also complains of in his grounds of appeal.
5. The factual background to this matter is set out in great detail in the judgment of the Divisional Court, particularly in paragraphs 5 to 24 of that judgment. I do not intend to set that out at all. It has not been suggested by Mr Boothe-Chambers that the actual details of the very many applications that he has made and of the dates on which they have been dealt with, and the judges names and so on, was incorrectly set out by the Divisional Court. In my judgement, as in that of the Divisional Court, the history thereby set out does amply demonstrate that Mr Boothe-Chambers fulfils the criterion set out for the making of a vexatious litigant order by the terms of section 42 of the Supreme Court Act 1981.
6. Today Mr Boothe-Chambers has concentrated on one aspect of that matter, that he has two appeals to this court outstanding. He suggests that in its judgment the Divisional Court did not appropriately understand the importance of those matters because it became distracted by, or otherwise placed undue weight upon, the very long history of other applications and appeals that Mr Boothe-Chambers, rightly or wrongly, had been engaged in over the previous five years.
7. For my part, it seems clear to me that the Divisional Court well understood what the position was with regard to those appeals. They do mention them and they indicate that those matters arise out of the history of litigation that Mr Boothe-Chambers has engaged in, largely or entirely emanating, as he has told me, from the very unfortunate dispute that he had with his former partner at the end of the 1980s and the financial implications of that; including, in particular, Mr Boothe-Chambers losing his home. I have no doubt that the Divisional Court understood the position about those appeals and thought it right in its judgement not to be deterred from making the order that it made.
8. It should be noted that the order of the court under section 42 does not of course prohibit all proceedings, but merely requires Mr Boothe-Chambers to obtain the permission of a judge of the High Court to continue with any existing action.
9. On that basis, therefore, it seems to me that there are no grounds upon which this matter should properly be reconsidered by this court. It has been gone into detail below and an appeal from the Divisional Court would not involve any complaint about a point of law, but simply involve a reiteration of the matters already ventilated before the Divisional Court.
10. Having said that, I should turn briefly to the various complaints made in the grounds of appeal which, although not pursued before me, have not withdrawn and therefore Mr Boothe-Chambers is entitled to my view upon them.
11. In paragraphs 1 to 5 of his grounds of appeal Mr Boothe-Chambers complains that there was actual or apparent bias in the composition of the Divisional Court, in that Latham LJ (who presided over it) had previously acted, when a member of the Bar, for the Attorney-General in vexatious litigant applications. The test for determining whether a court or a judge should recuse itself by reason of alleged or suggested bias is that laid down by Lord Phillips MR in the case of Re Rabinowitz [2001] 1 WLR 700, a test very recently approved by the House of Lords in the case of The Application of Lady Porter. The test is whether a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased. I have no doubt that that test is not met by reason simply of the fact, and only of the fact, that Latham LJ many years ago had acted for the Attorney-General whilst he was deputy Treasury counsel. The same point was raised before this court, presided over by Lord Woolf CJ, in the case of Covey, an authority that Mr Boothe-Chambers had brought to my attention. In paragraph 42 of his judgment Lord Woolf indicated that he was in the same position as Latham LJ, having acted for the Attorney-General on a number of vexatious litigant applications when he was Treasury counsel, and Lord Woolf did not think it appropriate to recuse himself. That is guidance that judges should properly follow and, in my judgement, there is no basis in that complaint.
12. In paragraphs 5 to 8 of the grounds of appeal, Mr Boothe-Chambers complains that he was not shown the Bench Memorandum that was prepared (or that he thinks was prepared) before the Divisional Court. That matter was dealt with by Lord Woolf in the Covey case (paragraphs 49 to 50 of his judgment), where he reiterated that an applicant was not entitled to see the Bench Memorandum and there was no reason, from the point of view of protection of the applicant, why he should do so. That ground therefore fails.
13. In paragraphs 9 to 15 of his grounds of appeal, Mr Boothe-Chambers complains of the length of the order, that it was not made for a limited period of time, and that the Divisional Court gave no reasons why it was made for an indefinite period and not with a limit. It is not clear to me whether any submissions were made to the Divisional Court that the order should be in some way limited. However, in view of the history and weight of the applications previously made by Mr Boothe-Chambers, I have no doubt that the Divisional Court was right in the order that it made. Had it directed its mind expressly to the question of length, it would have undoubtedly come to the conclusion that it did. It made no error of law in so acting.
14. In paragraph 16 Mr Boothe-Chambers complains that a civil proceedings order should not have been made when Mr Boothe-Chambers was already the subject of a Grepe v Loam order; or alternatively it should not have been made without discharging the order. There is nothing in that point. The Grepe v Loam order had plainly had not had effect, and there is no objection to the two orders running concurrently if separate circumstances so demand.
15. In paragraph 18 of the grounds (a series of 11 sub-paragraphs), Mr Boothe-Chambers make various complaints about the structure of section 42 itself, including complaining that the section is in breach of the Articles 6 and 10 of the Human Rights Act 1998. That last question was considered by this court in the case of Ebert v Official Receiver [2001] EWCA Civ 340, reported in volume 1 of the Weekly Law Reports for the current year, and this court ruled that the legislation in respect of vexatious litigants was not in breach of this country's obligations under the European Convention, nor was it inconsistent with anything set out in the Human Rights Act 1998. That point therefore fails also.
16. In the result, therefore, both the more general complaints made in Mr Boothe-Chambers' written grounds and the particular matter that he has drawn to my attention today give no reason for thinking that an appeal to this court would have any chance of success. I therefore do not grant the current application.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________