England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE NEUBERGER

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 14th March 2001

Lord Justice Buxton :

1. We heard this application for permission to appeal on 20 February 2001. At the conclusion of the hearing we gave our reasons why the application should be dismissed. We indicated, however, that we took the view that there was a further point which had been raised by the judge below; and which we thought it appropriate that we should address. We said that we would take time to consider the point, and to deliver judgment on it in writing. That we now do. This, therefore, is the judgment of the court on the application for permission to appeal.
2. The applicant, Mr Ebert, is the subject of a civil proceedings order under section 42 of the Supreme Court Act 1981. He made a substantive application to Neuberger J which the judge refused, and in respect of which he refused permission to appeal to this court: that was the matter dealt with in the earlier parts of our judgment. Mr Ebert then wished to apply to this court for that permission. In order to do that, however, he required the leave of the judge under section 42(3) of the 1981 Act. The judge was not minded to grant that leave. However, on that point Mr Ebert made a submission to him that related to the position under the Human Rights Act 1998. Of that, the judge said:

"Mr Ebert has raised the point that if I refuse him permission to apply to the Court of Appeal for permission to appeal my decision, then he has no access to the Court of Appeal because he is a vexatious litigant. He says that is contrary to his human rights. I strongly suspect that there is nothing in the point at all. Part of the purpose of making somebody a vexatious litigant is to stop the courts being bothered with hopeless applications to the full extent possible consistent with that person's right of access to the courts.

I have not studied the law on this topic, but it seems to me that the correct course for me to take is to permit Mr Ebert to apply to the Court of Appeal for permission to appeal my wholesale rejection of today's application simply on the basis that, although I think there is no ground for me to give permission to appeal, the Court of Appeal may want to consider, on an application for permission to appeal, whether in fact it is contrary to Mr Ebert's human rights for me to be able to shut him out from seeking permission to appeal because he is a vexatious litigant."

3. Like the judge, we were strongly of the opinion that there was nothing in Mr Ebert's complaint that the judge was precluded, on human rights grounds, from refusing leave under the vexatious litigant provisions to make an application for permission to appeal to this court. The issue does not directly arise in the present appeal, because Mr Ebert was given leave by the judge to apply to this court for permission to appeal. However, as we have already indicated, we thought that we should nonetheless answer the question raised by the judge as to the position under the vexatious litigant provisions, and that we should take time to reflect on the matter. That is not least because this point is likely to arise unforeseen and in unclear terms, as it did before the judge, and we think that guidance on it may be found helpful. We set out our conclusions in a series of paragraphs. It may assist in reading those paragraphs if we say that we use the word "leave" to refer to the leave required or granted under section 42 of the 1981 Act, and "permission" to refer to permissions to appeal to this court.
4. Where a vexatious litigant has (with leave) pursued a case or application in the court below, and has been unsuccessful, it is, in the first instance, for the judge to consider any application for permission to appeal. Whilst, strictly speaking, the vexatious litigant needs leave even to make that further application, no doubt that issue will normally be subsumed in consideration of whether permission should be given to appeal; at least in a case where the judge to whom the application for permission is made is a judge of the High Court. If the judge grants permission to appeal, the appeal proceeds in the normal way. If he does not grant permission to appeal, any further application to this court can only be made with leave under section 42(3). It is for the judge of the High Court (whether the trial judge or a different judge) to whom the application for leave to apply to this court for permission to appeal is made to determine it in the normal way.
5. If leave is granted, the application for permission proceeds in this court in the normal way. If, however, the application for leave is refused by the judge of the High Court, by section 42(4) of the 1981 Act no appeal can be brought against that decision. The two issues therefore arise:

i) Is the judge of the High Court inhibited in any way by the provisions of the European Convention on Human Rights [the ECHR] or of the Human Rights Act 1998 [the HRA] in his decision as to whether to grant leave?

ii) Does the restriction on appeal in section 42(4) infringe any provision of the ECHR or of the HRA; it being appreciated that if it does so, the court would have to take remedial steps under either sections 3(1) or 4 of the HRA?

6. The answer to both of these questions turns on the conformity of the general system for controlling vexatious litigants with the ECHR; and the answer to both of the questions is No.
7. The issue turns on the citizen's right of access to the courts, which is guaranteed in general terms by Article 6 of the ECHR. However, in an early and classic case on that subject, Golder v United Kingdom (1975) 1 EHRR 524, the European Commission on Human Rights observed, in the course of a general survey of the subject, that in the case of the United Kingdom vexatious litigant provisions

"The control of vexatious litigants is entirely in the hands of the courts….Such control must be considered an acceptable form of judicial proceedings."

8. The Court of Human Rights did not need to pass on that issue in Golder, nor has it done so subsequently. The Commission has, however, had to consider an application that specifically challenged the vexatious litigant provisions, in Application 11559/85, H v UK (1985) 45 D& R 281. Declaring the application inadmissible, the Commission recalled that the right of access to a court was not absolute, as had been made clear in Golder and also, for instance, in Ashingdane v UK (1985) 7 EHRR 528, and continued in relation to the particular complaint, at p 285:

"The vexatious litigant order….did not limit the applicant's access to court completely, but provided for a review by a senior judge…of any case the applicant wished to bring. The Commission considers that such a review is not such as to deny the essence of the right of access to court; indeed some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim."

9. If we may respectfully say so, that conclusion was not surprising. The detailed and elaborate procedures operated under section 42 of the 1981 Act respect the important ECHR values that procedures relating to the assertion of rights should be under judicial rather than administrative control; that an order inhibiting a citizen's freedoms should not be made without detailed enquiry; that the citizen should be able to revisit the issue in the context of new facts and of new complaints that he wishes to make; and that each step should be the subject of a separate judicial decision. The procedures also respect proportionality in the general access to public resources, in that they seek to prevent the monopolisation of court services by a few litigants; an aim, and the national arrangements to implement it, that the Strasbourg organs, applying the doctrine of the margin of appreciation, are likely to respect.
10. We are fortified in those general conclusions by the fact that the general procedure under section 42 was reviewed by the Divisional Court in HM Attorney General v Matthews, The Times, 2 March 2001, and was regarded by that court as being in conformity with the requirements of article 6.
11. We are further fortified in our view that H v UK accurately states the Convention jurisprudence on the particular issue of vexatious litigants by the case being cited without criticism by institutional writers: see Starmer, European Human Rights Law, para 13.8, and Clayton and Tomlinson, The Law of Human Rights, para 11.91.
12. Since the general system relating to vexatious litigants complies with the requirements of the ECHR, we doubt if a separate question in fact arises in relation to the restriction on appeals imposed by section 42(4) of the 1981 Act. However, it is trite law that Convention jurisprudence does not require a state to provide an appellate procedure, as opposed to access to a court of first instance: see e.g. Belgian Linguistic Case (No 2) (1968) 1 EHRR 252[9].
13. Our conclusions therefore are as follows:

i) Judges considering applications for leave under section 42(3) should continue to apply the criteria adopted in the current domestic law, which are not affected by the HRA.

ii) Where an application is made for leave to apply to this court for permission to appeal, the judge should equally consider that application on its merits. If the judge refuses to grant leave there is no appeal to this court against that refusal, and judges should therefore neither grant permission to appeal against that refusal nor grant leave to apply to this court for such permission.

iii) Powers to grant leave under section 42 of the 1981 Act are exclusively those of the High Court. It is therefore not open to a vexatious litigant to make an original application to this court in a case where he has been refused leave by a judge of the High Court, and any such application will not be placed before the court.