England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
(LAWS LJ AND SILBER J)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE LONGMORE: The first application before the Court this morning is an application by Mr Ebert that he be given leave to appeal against the civil proceedings order made on 7th July 2000 by the Divisional Court at the suit of the Attorney General declaring him to be a vexatious litigant.
2. Mr Ebert takes three preliminary points. He says, firstly, that as a single Lord Justice I have no jurisdiction to give him permission to appeal or to refuse him permission to appeal and that can only be done by three Lord Justices; secondly, he says that all I can do is give directions for the hearing of his application; and, thirdly, he wishes to see the bench memorandum which is prepared for the benefit of the Court.
3. Taking that last point first, the bench memorandum is a document which judicial assistants prepare in order to assist the Court. Of course if there is anything in such memorandum which the litigant, or the applicant, ought to know about, then that is something which must be disclosed to the applicant. Having looked at the bench memorandum prepared, it is just a summary of the position, in which we now are and which is set out in any event in the judgment of the Divisional Court. As far as the jurisdiction of this Court is concerned, it is now recognised that the applications for permissions to appeal can be dealt with orally or in writing, but if they are dealt with orally then they are to be dealt with by one Lord Justice, and I am satisfied that I do have jurisdiction to consider whether or not Mr Ebert should have permission to appeal.
4. I turn, therefore, to that judgment of the Divisional Court; it is a long and extremely careful judgment which sets out the circumstances on which the Attorney General relied to make his application for a civil proceedings order on the basis that Mr Ebert is a vexatious litigant.
5. Mr Ebert in his submissions to me this morning complains that he has not had a proper opportunity to develop all his arguments but, as he knows, the arguments on these applications are confined to 20 minutes, and if there is something in that 20 minutes which he is able to show to the Court and which gives a reason for there to be any real prospect of an appeal, then the Court will give permission to appeal, but not otherwise.
6. The points that Mr Ebert takes are, firstly, that no permission was obtained by the Attorney General for the inception of his application as required by section 285 of the Insolvency Act; secondly, he submits that an application cannot be made by the Attorney General on the grounds of the vexatiousness of a litigant if all the litigant has done is to bring applications for permission and applications in bankruptcy proceedings; and, thirdly, he submits that the underlying merits of his original proceedings were not sufficiently gone into either in those original proceedings or in the application to make him a vexatious litigant.
7. As far as the original proceedings are concerned, Mr Ebert has put before me a skeleton argument this morning and various additional documents. In my judgment, Mr Ebert's application for permission to appeal against the civil proceedings order has to be refused. There is no possible ground on which the Court of Appeal could be persuaded that the order was wrong. What Mr Ebert does not understand is that on the application for a civil proceedings order, the Court does not go into the underlying merits of the judgments which have already been pronounced. The question is whether or not Mr Ebert has shown himself to be a vexatious litigant. The Court below, the Divisional Court, was satisfied that that was so.
8. It is an extraordinary fact that no one knows how many applications Mr Ebert has brought in relation to the original judgment given against him by the Midland Bank and in relation to the bankruptcy petition and the orders made thereunder. But it seems to me that it is now well over a hundred. The unfortunate situation is that, intelligent and resourceful as Mr Ebert undoubtedly is, he has proceeded vexatiously, and one thing that the Divisional Court, rightly in my judgment, took into account was the fact that he had made applications to commit two solicitors for contempt, Mr Rabinowicz and Mr Osuntokun. That was just one of the elements which persuaded the Divisional Court that his applications had become vexatious and that he should be declared a vexatious litigant. What Laws LJ said was that Mr Ebert's vexatious proceedings have been:

"... very damaging to the public interest: quite aside from the oppression they have afflicted on his adversaries."

9. He adds, also in the same paragraph 50 of his judgment:

"The real vice here, apart from the vexing of Mr Ebert's opponents, is that scarce and valuable judicial resources have been extravagantly wasted on barren and misconceived litigation, to the detriment of other litigants with real cases to try."

10. The learned Lord Justice does refer to the original perceived injustice which Mr Ebert considers that he has suffered, and in paragraph 16 of his judgment he said this:

"I recognise – indeed, I would wish to emphasise – that he has an understandable sense of grievance. His co-guarantor has got off scot-free. He is liable for the whole of Mr Ralph Wolff's claim against him, with no recourse against Mr Morris Wolff. Unhappily this injustice or perceived injustice has so devoured him that in the public interest it is now our duty to bar him from the civil courts by an order under s.42."

11. My duty now is to decide whether there is any real prospect of success before the Court of Appeal. I have to say that there is none, and the application will have to be dismissed.
(Application for permission to appeal dismissed; copy of transcript of judgment to be provided to Mr Ebert at public expense)