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
(MR JUSTICE MCKINNON)

		Royal Courts of Justice Strand London, WC2
		30th June 2004

1. LORD JUSTICE BROOKE: There is before the court an application for a general civil restraint order made by the Department of Constitutional Affairs ("DCA"). They make this application in connection with Mr Mahajan's application for permission to appeal to this court against a judgment of McKinnon J on 28th April 2004.
2. The DCA seeks a general civil restraint order for a period of two years on the grounds that (i) Mr Mahajan is a persistent and vexatious litigant; (ii) potential defendants require protection so that money is not spent defending frivolous claims; and (iii) the court's processes require protection from abuse. Their application is supported by a 19-page witness statement by Emma Curwen, a solicitor employed by the Treasury Solicitor. She has put before the court a helpful chronology which sets the scene for this application. It runs along the following lines.
3. On 8th December 1999 Judge Ryland at the Central London County Court dismissed Mr Mahajan's claim against Vivianne Waldman and Sibell Associates for unpaid fees.
4. On 25th July 2000 Tuckey and Jonathan Parker LJJ refused to order a transcript of the evidence and of the judgment given by Judge Ryland at public expense. They also refused permission to appeal.
5. On 13th January 2001 Mr Registrar Baister refused to set aside a statutory demand issued by Mrs Waldman and Sibell Associates against Mr Mahajan for unpaid costs.
6. On 12th April 2001 Mr Mahajan was made bankrupt.
7. On 12th July 2002 Mr Mahajan applied to set aside the bankruptcy order and sought permission to issue proceedings for fraud and conspiracy against Mrs Waldman and others ("the eight defendants").
8. On 23rd July 2002 Neuberger J refused permission to set aside Mr Mahajan's bankruptcy order and refused him permission to issue fraud and conspiracy proceedings against the eight defendants.
9. On 29th November 2002 Aldous and Scott Baker LJJ dismissed an application by Mr Mahajan for a transcript of the proceedings before Neuberger J on 23rd July 2002 to be supplied at public expense.
10. On 7th April 2003 Deputy Master Lloyd struck out Mr Mahajan's action alleging fraud and conspiracy against the eight defendants.
11. On 15th May 2003 Patten J dismissed Mr Mahajan's application for an order that his application for permission to appeal against Deputy Master Lloyd's striking-out order be conducted by the Master of the Rolls sitting with a full bench of the Court of Appeal. Patten J also dismissed Mr Mahajan's application for a tape and transcript of the hearing before Deputy Master Lloyd to be provided at public expense.
12. On 9th June 2003 Patten J again dismissed Mr Mahajan's application for a copy of the tape and transcript of the hearing before Deputy Master Lloyd to be provided at public expense. Mr Mahajan then sought permission to appeal against this and the earlier related order of Patten J.
13. On 16th July 2003 Deputy Master Joseph ordered that Mr Mahajan should file a bundle of documents complying with the Practice Direction to CPR Part 52, failing which his application for permission to appeal Patten J's order of 9th June 2003 would be dismissed. Mr Mahajan then applied for this order to be reviewed by the court pursuant to CPR 52.16(5).
14. On 4th September 2003 Rimer J refused to make an order for costs against court staff and refused Mr Mahajan's application that his application for permission to appeal against Deputy Master Lloyd's decision should be listed before a specially designated judge. Mr Mahajan then sought permission to appeal against that order, too.
15. On 28th November 2003 Mr Mahajan instituted judicial review proceedings against the Court Service, Civil Appeals Office.
16. On 4th December 2003 on considering the papers, Collins J refused Mr Mahajan permission to apply for judicial review against the Civil Appeals Office. He said, in his own handwriting:

"This court has no jurisdiction to review matters within the Court of Appeal. Any complaint you may have about listing must be raised before the Court of Appeal. Your vituperative anti-semitic nonsense cannot assist any claim you may have."

Those comments were made in manuscript. The order was then typed. Mr Mahajan, to show the kind of litigant he is, is now asking this court to consider whether simply because the word "vituperative" could not be read in Collins J's handwriting and the word "interpreter" was put instead and somebody then altered it, this was somehow or other a case of a member of the court's staff altering what Collins J had said.

17. On 10th December 2003 a division of this court (consisting of myself, Sedley and Latham LJJ) imposed a two-year extended civil restraint order against Mr Mahajan, restricting him from making applications to the Court of Appeal concerning the eight defendants without the prior permission of one or other of the three members of the court. Just before making that order, the court had dismissed Mr Mahajan's applications for permission to appeal against the orders of Patten J of 15th May and 9th June. We refused to alter Deputy Master Joseph's order of 16th July 2003, and we also refused permission to appeal Rimer J's order of 4th September 2003. On that occasion I said in my second judgment:

"During the course of my earlier judgment, I described some of the expressions used by judges of the court in dismissing Mr Mahajan's applications on earlier occasions because they were, in essence, totally devoid of merit. These three applications have revealed vividly that, unless restrained in some way, Mr Mahajan will continue to waste the time of this court in making hopeless applications. Mr Tolley [advocate to the court] has greatly assisted us by drawing our attention to the principles set out by the judgment of the Master of the Rolls in Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113; [2004] 1 WLR 88, and, following the principles set out in that judgment, given that Mr Mahajan's litigation in this court can appropriately be described as both persistent and vexatious, I consider that it will be appropriate to make [the order that we made that day]."

18. On 21st January 2004 there was an oral hearing before Sullivan J of Mr Mahajan's renewed application for permission to apply for judicial review against court staff and judges at the Central London County Court. This was the matter on which we heard Mr Mahajan's applications for permission to appeal on Monday of this week. We stayed one of them and we dismissed the other, but they related to anxieties Mr Mahajan had about the procedure in the Central London County Court for refusing him transcripts of judgments at public expense.
19. On 13th February 2004 Mr Mahajan attended the Civil Appeals Office and lodged two notices of appeal against the decisions of Sullivan J to which I have just referred. He also sought to lodge two appeal notices against decisions made by Patten J which had the effect of dismissing Mr Mahajan's applications for permission to appeal against two orders of Judge Cooke in the Central London County Court. The Civil Appeals Office staff refused to issue these appeal notices on the direction of Deputy Master Joseph. He considered that this court lacked jurisdiction, in accordance with the principles set out by the judgment of this court in Jolly v Jay [2002] EWCA Civ 277, when I was concerned to explain what should be done when a litigant refused to accept the clear statement by Parliament in section 54 of the Access to Justice Act and insisted on seeking to appeal the refusals of a lower appeal court to grant permission to appeal to itself. In this context Mr Mahajan has asked me to look at the file to see if there is some order of Patten J which did not amount to a refusal of permission to appeal which might in theory be appealable to this court, and I told him on Monday that I would look at the file.
20. On 27th February 2004 Mr Mahajan brought a claim against the DCA ("Claim 0600") complaining of breaches of his human rights in relation to the actions of court staff at the Civil Appeals Office 14 days earlier.
21. On 5th March 2004 Mr Mahajan's renewed application for permission to apply for judicial review against the Civil Appeals Office (in the case in which Collins J had refused permission to appeal on paper) was listed for oral hearing. Mr Mahajan did not attend and Sullivan J dismissed that application. He said, after referring to what Collins J said:

"4. Sadly that has provoked the claimant to engage in more anti-Semitic nonsense, which is thoroughly intemperate and offensive. In brief, the claimant has managed to convince himself that he is the victim of a Jewish judicial conspiracy. Again, just to give a flavour of his case, he says this in correspondence to the Administrative Court Office:

'Sir Andrew Collins disregarding evidence of my victimisation at the hands of the Jews, which was before the court, is unlawful and I am deprived of an opportunity to show further evidence of Jewish tyrannies against me. There are hundreds of victims who are in contact with each other behind whose victimisation are Jews and Freemasons because of the complicity of the courts.'"

Sullivan J continued:

"5. As one judge who does not fall into either of those categories, I have no hesitation in saying, as I said in respect of other renewed applications made by the claimant that came before me on 21 January, that his claim is complete and utter nonsense, and offensive nonsense at that.

6. During the course of that judgment I gave a warning to the claimant that if he persisted in engaging in offensive correspondence with the Administrative Court Office and making vexatious and frivolous applications for permission to apply for judicial review, consideration would be given to making a Civil Restraint Order against him preventing him from engaging in such conduct in the Administrative Court. There is already an order in force made by the Court of Appeal restraining his conduct in the Court of Appeal. I do not make such an order today in relation to proceedings in the Administrative Court for the sole reason that this renewal application was made before I gave that warning. Mr Mahajan should know that the warning still stands. That said, this renewed application is refused."

22. In this context it appears that although this court directed that its order and judgment last December should be made available to the Administrative Court so that any judge of that court would be aware of it, this was not done in the case of Sullivan J who heard the applications on 21st January without being aware of the order this court had made. I invite the staff of the Civil Appeals Office to ensure that their lines of communication with the Administrative Court Office and its judges work more effectively in future in matters of this kind.
23. On 9th March 2004 Master Tennant struck out Claim 0600 against the DCA as an abuse of process of his own motion, pursuant to his powers under CPR Part 3. He said that the reason why he was striking the claim out was that he regarded the claim "as an abuse of the court's process being incoherent, confusing and incomprehensible."
24. On 26th March 2004 Mr Mahajan made an application for a direction to set aside the extended civil restraint order. A division of this court (consisting of Sedley and Arden LJJ) declined to set it aside, and then varied the order so that any application by Mr Mahajan for discharge of the order could only be made in future by applying for permission in writing to one or other of the members of the court who sat on 10th December 2003. It is in my judgment an example of Mr Mahajan's approach to litigation and to the conduct of the judges of this country that, although Arden LJ delivered a judgment in which she was setting out in completely objective terms the form of the order that we had made on 10th December and the reason why there was no reason to discharge that order so quickly, Mr Mahajan nevertheless applied to us two days ago for an order that that judge should never sit in any case involving himself ever again in the future.
25. On 26th April 2004 McKinnon J heard Mr Mahajan's application for the striking-out order of 9th March 2004 to be set aside. On 28th April McKinnon J dismissed that application. He said in paragraph 27 of his judgment:

"In my judgment, this pleading cannot be allowed to stand. It is not possible to sort the wheat from the chaff. The whole of it must be struck out for the reasons I have given, and for the reasons given by Master Tennant. Further, I am clear that it discloses no reasonable cause of action under Rule 3.4(2)(a). It is a case which, on any view, is unwinnable, without any possible benefit to the claimant. It would certainly waste resources on both sides. As I have said, it is, on a proper analysis, wholly devoid of merit."

Mr Mahajan seeks permission to appeal against that judgment and it is in the context of that pending application that this application is made. In the meantime, Mr Mahajan has issued still further proceedings against the DCA to which I will refer in due course.

26. I need only refer briefly to the two recent decisions of this court. I do not think I need say anything more about the judgment on 10th December, when I set out in considerable detail the previous history of Mr Mahajan's litigation concerning the eight defendants. That history showed the unwillingness of Mr Mahajan ever to take no for an answer and his great willingness to accuse virtually every judge that he encountered of being corrupt and in some kind of conspiracy to do him down.
27. When the matter came back before Sedley and Arden LJJ on 26th March 2004, Sedley LJ gave a short judgment explaining why the previous order of the court was being varied. He said during the course of that judgment:

"2. ... the purpose of the liberty given to Mr Mahajan by paragraph 8 to apply to discharge the order contained in paragraph 5 [of the extended civil restraint order] was to ensure that if there were a material change of circumstances he was not precluded from asking the court to review the order it had made.

3. Today's application has demonstrated that Mr Mahajan either does not appreciate that that was its purpose or that, appreciating that that was its purpose, he has nevertheless decided to attempt to circumvent it. On either view it is, in our judgment, necessary, in order to protect the court from further abuse of its process, to vary the order in the manner that I have indicated, so that the purpose which I have described, which was precisely the purpose of the order as originally drawn, may be fulfilled."

28. Sedley LJ was another of the judges of this court about whom Mr Mahajan sought an order of the court to direct that he should never hear any application of Mr Mahajan again. It is an example in my judgment of Mr Mahajan's distance from reality that he sought a direction that the court hearing his application two days ago should be comprised of the Lord Chief Justice and the Master of the Rolls sitting in the presence of the Lord Chancellor. We dismissed that application for the reasons I gave then.
29. The three most recent matters which have come before the courts require a little more attention. The first comprised the judicial review proceedings against the Civil Appeals Office which were instituted on 28th November 2003. Miss Curwen has exhibited the judicial review claim form in those proceedings. It appears that Mr Mahajan was making numerous complaints about court staff, and in particular was seeking to challenge the fact that the Civil Appeals Office had listed three of his applications for permission to appeal to be heard by the Court of Appeal on 10th December 2003. That was the matter on which Collins J made his order. In due course Sullivan J refused the renewed application, and I have already recorded what those two judges thought of the merits of those particular High Court proceedings (see paragraphs 16 and 21 above).
30. The proceedings which went before Master Tennant and McKinnon J were the first proceedings to name the DCA as a defendant. They were instituted on 27th February 2004. Mr Mahajan claimed there had been a breach of his human rights in relation to the actions of court staff of the Civil Appeals Office in requiring him to lodge certain documentation in support of appeal notices and refusing to issue two further appeal notices. Those matters related to his attempts to lodge an application for permission to appeal against a refusal of the lower court which refused permission to appeal.
31. During the course of his judgment, in addition to the passage I have already quoted, McKinnon J said:

"23. Very substantial parts of the claimant's pleadings have only to be read for the conclusion to be obvious that the pleading is an abuse of the court's process on the grounds that it is incoherent, vexatious, scurrilous and obviously ill-founded. Parts of it are 'incomprehensible', in the sense that it is impossible to see how they are relevant or advance the claimant's case of denial of access to the courts, or indeed that what happened in any way contravened Article 3, prohibiting torture. ...

24. On the face of it, the claimant's claims are wholly devoid of merit and would involve a monumental waste of time if they were allowed to be litigated, out of all proportion to any possible benefit to the claimant. ..."

32. On that occasion McKinnon J was invited by the DCA to make a further civil restraint order either limiting Mr Mahajan from bringing further proceedings or making further applications related to that action or from doing so generally in the High Court, in accordance with the principles set out in Bhamjee v Forsdick. The judge indicated that he would consider making an order restricting further applications related to that particular action, but he was then informed by Mr Mahajan that he had that morning issued a further claim (to which I will refer in a moment) against the DCA, in which complaint was made of different matters. In the light of that, McKinnon J indicated that the DCA might wish to consider the new claim with a view to deciding whether this should be taken into account in the terms of any civil restraint order to be imposed by the court. It was for that reason, which was similar to the reason given by Sullivan J the previous month, that no restraint order was imposed at that time.
33. A number of the matters of which Mr Mahajan was making complaint about the conduct of court staff in those proceedings were reminiscent of the matters to which I referred in paragraphs 16 to 23 of my judgment on 10th December 2003.
34. I turn to the new set of proceedings against the DCA, Claim 1253. This complaint arises ultimately out of Mr Mahajan's litigation against the eight defendants. These proceedings constitute complaints about various orders made by courts on Mr Mahajan's subsidiary applications following the striking out of his claim alleging fraud and conspiracy. In essence he was complaining that his human rights had been breached by the actions of 13 different persons. The claim referred to all the occasions on which judges had made orders adverse to him from 15th May 2003 onwards; the conduct of court staff at the Civil Appeals Office in conducting the handling of Mr Mahajan's constant applications in the way they did; and a letter from the Administrative Court Manager dated 11th December 2003 when he responded to Mr Mahajan's queries about the decision of Collins J. That letter has been shown to the court. It is a letter in polite terms simply explaining the way that the court had handled the matter, and finishing off:

"I cannot comment on the issues raised in the remainder of your letter dated 24th November, which relate to judicial decisions."

Mr Mahajan is contending in High Court proceedings that somehow or other his human rights were breached in connection with that letter.

35. Having set out the history of these proceedings Miss Curwen put forward three different principles in her statement. These principles have been supported by submissions made by Miss Chan who has appeared for the DCA. The first is that judicial acts are not to be the subject of freestanding civil claims. Section 9 of the Human Rights Act 1998 states that:

"Proceedings under section 7(1)(a) in respect of a judicial act may be brought only-

(a) by exercising a right of appeal;

(b) on application ... for judicial review; or

(c) in such other forum as may be prescribed by rules. ...

'judicial act' means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge;"

These private law proceedings (1253), Miss Curwen says, are based entirely on alleged breaches of Mr Mahajan's human rights. The majority of the complaints clearly relate to judicial acts and the proper forum for challenging such acts and decisions is by exercising a right of appeal or making an application for judicial review. Mr Mahajan has exhausted those avenues, but having been unsuccessful he is now seeking in private law proceedings against the DCA to use a form of challenge which is specifically prohibited by the Act.

36. In addition, judges of the superior court enjoy a complete immunity from liability in damages for any act that is either within their jurisdiction or is honestly believed to be within their jurisdiction (Sirros v Moore [1975] QB 118).
37. Furthermore, section 2(5) of the Crown Proceedings Act 1947 excludes Crown liability for any acts done in the discharge or purported discharge of responsibilities of a judicial nature or in the execution of judicial process. This immunity is preserved by the Human Rights Act 1998 ("the 1998 Act"), except that an award of damages may now be made to compensate a person to the extent required by Article 5(5) of the European Convention on Human Rights (see the 1998 Act, section 9(3)). There is no allegation of unlawful arrest or detention in these proceedings. It is therefore said that the vast majority of the claims in the latest set of proceedings are a total abuse of process.
38. Secondly, in relation to the actions of court staff, Mr Mahajan is complaining in High Court proceedings of many actions of court staff relating to the listing of applications and the refusal of the Court Service to comply with his demand not to have hearings listed before certain judges.
39. The appropriate course for Mr Mahajan to take is to raise these matters before the appropriate court, which he has done either by making applications for adjournments or directions or by appealing a refusal to adjourn. From time to time the judges have made relevant directions of this kind. On 22nd September 2003, for instance, Laws LJ directed that an application for permission to appeal listed for 26th September 2003 should be taken out of the list and I have been concerned with other matters of this kind during the last 12 months. In so far as any applications for adjournments were unsuccessful, that was again a complaint about a judicial decision which cannot be the subject of civil proceedings for the reasons I have given, and it is certainly not appropriate in these circumstances to bring High Court proceedings against relevant members of court staff.
40. In relation to the actions of court staff, Mr Mahajan alleges that his rights under Articles 3, 6 and 14 of the European Convention on Human Rights have been breached. Article 14, it is well known, is not a freestanding right, and Mr Mahajan has not pointed out clearly which other substantive rights under the Convention in connection with Article 14 have been infringed. He refers to Articles 3 and 6. Article 3 prohibits the torture or inhuman and degrading treatment. The actions of court staff, even as described by him, could not possibly be said to reach that threshold.
41. So far as Article 6 is concerned, there is now plenty of case law, both in this court and the Court of Human Rights at Strasbourg, which makes it quite clear that, so long as the right of access to the court is not extinguished, a court is entitled to regulate its affairs so as to protect its process and the interests of other parties against whom vexatious litigation is persistently brought. In my judgment, Mr Mahajan's High Court proceedings against court staff are totally misconceived.
42. Another objection which the DCA has made which is equally sustainable in relation to other litigation which the court has seen is that Mr Mahajan is in the practice of making unsubstantiated and offensive allegations against both the judiciary and court staff. The judiciary have broad shoulders. Two days ago Mr Mahajan was permitted to make a prepared statement for over 30 minutes in which he made very strong complaints about the judiciary. But so far as court staff are concerned, it is essential for the administration of justice in this country that they should be protected from the kind of conduct in which Mr Mahajan has indulged over the last year.
43. On 10th December 2003 one of the orders this court made was that he be restrained from addressing or corresponding with the staff or lawyers of Civil Appeals Office in any rude or abusive manner in relation to any litigation he may conduct in the Court of Appeal. There is no suggestion before us that he has broken that order, but we have seen other correspondence with court staff which make it clear that the protection should be widened.
44. An example of Mr Mahajan's approach to adverse decisions is a contention in the latest particulars of claim:

"On 26 March 2004, the judges sitting in the Court of Appeal demonstrated total lack of knowledge about the facts of my case, invented falsehoods and subsequently attempted to manufacture evidence to cover up their own wrongful conduct as well as of the Court Service staff. Such conduct on part of the Court is blatant abuse of office and ability to commit such hideous crimes as perversion of justice and cover that up denying me a fair hearing."

45. It is against this background that the DCA has submitted that the time has now come for the court to consider imposing a wider civil restraint order than that which is currently in force to protect the processes of this court; in effect, a general civil restraint order. Miss Chan has submitted that it is necessary for any order to restrict applications and proceedings brought by Mr Mahajan against all potential defendants, and not just matters that concern and touch on his grievance against the eight defendants, and also to limit proceedings and applications in the High Court and the county court generally, and not just in the Court of Appeal.
46. I have said enough about the previous history for me not to have to go in any great detail into the reasons why it is submitted that such an order should be made. I have been reminded that in paragraph 8 of my second judgment on 10th December 2003 I directed that a copy of the judgment be made available to the Chancery Division and to the Administrative Court, so that the judges of that court, if Mr Mahajan persisted in litigation which they considered to be vexatious, might decide to make a comparable order protecting the process of the court in which they sit. It is a matter of regret that that judgment was not made available to Sullivan J on 21st January. It is going to be impossible for the courts to control the conduct of litigants like Mr Mahajan unless there is an effective way of ensuring that the orders made by courts, either to the effect that an application or action has been dismissed as being totally devoid of merit, or that a general or limited or extended civil restraint order has been made, are made widely known to other judges and courts who may be concerned with the same litigant.
47. After setting out the reason why the court made the order against Mr Mahajan on 10th December 2003, the DCA submits that the fact that two further utterly unmeritorious sets of proceedings relating to different subject matters have been brought by the claimant against the DCA in just over two months indicates the need for any civil restraint order to encompass not just specified proceedings but to prohibit Mr Mahajan's litigation more widely. It is a matter of comment that after the court made the order protecting its own process on 10th December, Mr Mahajan insisted on continuing his renewed application for permission to apply for judicial review after Collins J for good reason had dismissed it. He also brought the two further proceedings to which I have referred against the DCA.
48. The DCA has also drawn to our attention a record of other proceedings brought by Mr Mahajan going over the last four years in the Administrative Court, the High Court and the Court of Appeal. This list does not cover proceedings issued in the county courts or the Employment Tribunal, although it is evident from the history that Mr Mahajan has been persistently litigating and has persistently been turned down in county courts and the Employment Tribunal. Miss Curwen says that to her knowledge he has been unsuccessful in all those matters and appeals.
49. Miss Curwen also says that Mr Mahajan is no way hampered by the normal requirement of paying court fees because he is on benefits. I am informed by the DCA that, to date, he has the benefit of some 40 fee remissions totalling £5,429. This gives rise to another set of considerations. In my judgment in Bhamjee v Forsdick (No 1) [2003] EWCA Civ 799 I described the contemporary nuisance caused by a limited number of litigants, normally exempt from paying fees, who were persistently making applications in this court. They were exempt a fee of £100. I recorded (in paragraph 25) the opinion of the Head of the Civil Appeals Office that these applications each cost well over £1,000 to process. In the way that the courts are resourced that £1,000 does not come from the taxpayer: it comes from other litigants. In my judgment four years ago in Clark v Perks [2001] 1 WLR 17 at paragraph 17, I drew attention to the problems created for the courts, which have limited resources, when handling this kind of litigant. Mr Mahajan's history, like that of Mr Bhamjee last year, shows that there is an acute need for the relevant authorities to take a good look at the way that the courts are currently being resourced in relation to this type of litigant, and ask whether it is right that the courts should be handling this type of litigant by drawing on resources provided by the higher fees which have been charged to litigants who conduct themselves appropriately.
50. Our attention has also been drawn to judicial review proceedings against the Registrar of the Employment Appeal Tribunal and the Secretary of State for Trade and Industry, where Sir Christopher Bellamy on 30th August 2002 in the High Court, rejecting the application, said of Mr Mahajan:

"... he is essentially challenging the administrative way in which matters have run. He says that the way it has been conducted really amounts to harassment. He suggests that there may be corruption, there may be racial bias and that the court may have been misled by what it has been told and some of the matters that are before it; ..."

I only mention that to show that it is not only in court proceedings that Mr Mahajan is making the widespread allegations against corrupt judges and a conspiracy of corrupt judges which are a clear feature of the way that he conducts litigation.

51. It is said by the DCA that it is clear from the exceedingly large number of proceedings against a variety of defendants and Mr Mahajan's refusal to take no for an answer when he is unsuccessful that he can properly be described as the "particularly rare type of litigant" for whom an even wider form of order than an extended civil restraint order may be necessary, namely a general civil restraint order.
52. In paragraph 43 of the judgment in Bhamjee v Forsdick (No 2) Lord Phillips MR said:

"At High Court level, a High Court judge may make an order generally restraining the litigant from instituting any action or making any application in the High Court without first obtaining the permission of an identified High Court judge in an all-paper proceeding. The purpose of such an order will be to protect the process of the High Court from abuse, so that the order may not be extended to include the county court. The order will identify the judge to whom any applications for the requisite permission should be made. A general civil restraint order should be made for a period not exceeding two years, unless subsequently extended."

53. In paragraphs 43-46 of that judgment the court set out the circumstances in which this new form of order might be made.
54. In paragraph 45 the court suggested that there was no need for such a power to be vested in the Court of Appeal because at that time it was believed that the Civil Procedure Rule Committee might shortly introduce a rule which would, among other things, enable a Lord Justice to dismiss an application for permission finally on paper if it was totally devoid of merit. No such rule has yet been introduced, and the experience of the last 12 months has shown that it is essential that this court should have further powers to protect its process from abuse in extreme cases.
55. As I have said, in paragraph 46 of Bhamjee the court suggested that at High Court level, a High Court judge might now make a general civil restraint order, but we suggested that since the purpose of such an order would be to protect the process of the High Court from abuse, the order might not be extended to include the protection of the county courts. Counsel for the DCA has submitted that in that respect we were being unnecessarily limiting, and that this case has demonstrated the desirability of the High Court possessing such jurisdiction, so as to include not only the High Court but also any county court in its protective scope.
56. In this respect we have been referred to a passage in the judgment of Lord Woolf MR in Ebert v Venvil [2000] Ch 484, 498, in which he said in relation to the making of what is now an extended civil restraint order:

"It would be absurd today when there is a process of merger between the High Court and county court if it were necessary for a separate order to be made in the county court when an order was in any event going to be made in the High Court. While it might not be appropriate for the county court to make an order in relation to the High Court, we can see no difficulty of the High Court making an order in relation to the county court if the facts justify such an order being made."

57. In the previous paragraph of his judgment Lord Woolf explained that although the supervisory jurisdiction of the High Court in relation to the county court was customarily exercised by means of judicial review, it was not the only way in which such jurisdiction might be exercised.
58. In my judgment, there is no reason to continue to limit the jurisdiction of a High Court in the way we suggested in the judgment in Bhamjee. If a judge of the High Court is satisfied that the nuisance to be enjoined is extreme enough, it would be absurd if he could only make a general restraint order in the High Court, and had to leave it to individual designated civil judges in the county court up and down the country to make similar orders, if they shared his view as to the nature of the nuisance. There appears to me to be no reason in principle why an individual High Court judge should not be able to make a general restraint order which would restrain the litigant's activities in any county court as well. And on an appeal from the High Court, this court will have all the powers available to a judge in the lower court in addition to the power to protect its own process from abuse.
59. Since this is a matter which goes to the jurisdiction of this court, I have consulted the Master of the Rolls, who with myself and Dyson LJ was a party to the decision in Bhamjee, and he agrees with the extension of the general civil restraint jurisdiction that I have suggested. It is against this background that Miss Chan has submitted to us a draft order that she invites us to consider making.
60. Mr Mahajan has prepared a 12-page document headed "Submissions concerning application for civil restraint order". We permitted him to read the whole of this document to us in court two days ago.
61. Mr Mahajan starts by suggesting that the court has no jurisdiction to make such an order. He refers to passages in the judgment of this court in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, and he suggests that the court has no originating jurisdiction. The reasons why the court has the relevant jurisdiction, which was fully explained in Bhamjee v Forsdick (No 2) and has now been explained further in my judgment today, is clear on the face of that judgment. I am quite satisfied that the court does have the jurisdiction to protect its processes from abuse and also to protect the processes of lower courts from abuse if it is exercising a power which was available to the court from whom an appeal comes, and it also has the power and the duty to protect other litigants from abuse in these extreme cases.
62. Mr Mahajan then submitted that it was not lawful, fair or just for this court to allow the DCA's application. He set out his reasons for making that submission, which are a repetition of the kind of matters which he has sought to raise either in the course of ongoing proceedings or in the more recent High Court proceedings to which I have referred. For example, he says:

"Fact is that in a vain attempt to look fair and impartial this court office has employed some young ethnic minority staffs for public dealings. Those young, inexperienced and impressionable ethnic minority staffs have been and are being abused by the senior management of this court office for a motive which could not be defined as anything else but accomplishment of the latter's racist ambitions.

Although these young, inexperienced and impressionable ethnic minority staffs only do what they are told to do an impression is being created that the decisions that are made those are the decisions of ethnic minority staffs, therefore, there could not be any element whatsoever of racial bias. My experience and evidence in my possession shows that such racist practices are supported by Brooke, Sedley, Latham and Arden who treat law with utter contempt to put a lid on serious wrongdoings by racist and subversive forces within this court office."

He went on to refer to what was said by the Privy Council in a recent case involving Dr Paul, which he suggested showed that:

"... if these bureaucrats do not like someone they even gang up to have any one declared insane."

63. It is a feature of our system of public justice that judges give their judgment in public. They are available to the public to read. The judgments of this court are now regularly placed on the Internet, available for the whole world to read. It is of course permissible for anyone in a free country to make comments on them, but Mr Mahajan so far goes over the top in the comments he makes that in my judgment the time has come to restrain his activity.
64. Mr Mahajan's submissions continued along the same lines. It is not necessary for me to read them out. At one stage he says:

"Now with the clear knowledge of so many individuals being exposed in mere one go [sic] Courts would not mind even having me killed in the police way, as they do by locking up members of ethnic minorities with racist thugs and arranging fun fights in the prisons, therefore one more crime means nothing.

These are some reasons in brief for which Brooke LJ and bureaucrats through the Defendant are hells bent to do what they are because Brooke LJ also happens to be a leader/spokesperson of the judges who have started a hate campaign against the lay litigants."

65. It is of interest that during the course of his submissions Mr Mahajan refers to one decision by a judge of the Central London County Court which is on appeal to this court, in which yesterday afternoon I heard the litigant in question for two hours and granted his application, in the sense that I adjourned it to be heard in more detail on notice by a court of three judges. As I have said, the courts are public and anyone can see the way that the courts administer justice. It is sad that Mr Mahajan is now so obsessed by what he considers a wrong done to him a number of years ago that he continues to make allegations of the type that he makes.
66. I am satisfied in all the circumstances that the nuisance created by Mr Mahajan is now so extreme that the court must, in order to protect the processes of the courts and the interests of those against whom Mr Mahajan seeks to bring proceedings, exercise a greater degree of control over his litigious activities. This is not extinguishing his very right of access to the court. It is merely ensuring that if he seeks to bring proceedings in future they go through a filter, in the sense that they are placed before a judge on paper to consider whether they ought to be allowed to proceed, and if that judge decides that they should not be allowed to proceed that will be an end of the matter.

[Lord Justice Brooke then made proposals for a suggested order. After hearing argument, the Court made the order set out in the Schedule to this judgment]

67. LORD JUSTICE DYSON: I agree.
SCHEDULE

IT IS ORDERED:

(1) That the appellant be restrained for a period of 2 years until 28th June 2006 from making applications (whether personally or through any servant or agent) or taking any steps (including, for the avoidance of doubt, the issuing of any new proceedings in whatever form) against any purported respondent or defendant in the Court of Appeal, the High Court (which expression includes for the avoidance of doubt any Division thereof, whether in the Royal Courts of Justice or any District Registry) or in any county court without first obtaining the written permission of a named judge in accordance with paragraph 2 below.

(2) That any application by the appellant for permission to make any application or take step, proceedings or any act must be made in writing to a named judge as follows, and such application will be dealt with on paper alone. For the avoidance of doubt, no application, appeal, application for permission to appeal or application for review will lie in respect of any decision refusing permission in accordance with this paragraph unless the named judge grants it.

(a) Applications or proceedings in the High Court or a county court: the judge for the time being in charge of the non-jury list and from 1st October 2004 in charge of the Queen's Bench Division list.

(b) Applications in the Court of Appeal: Brooke, Sedley, Latham or Dyson LJJ.

(3) That any application, step or institution of new proceedings within the scope of this order which is made without permission pursuant to paragraphs 1 and 2 above will constitute a breach of this order and shall stand dismissed without having been heard and without requiring the attendance of any purported respondent or defendant. For the avoidance of doubt, permission is required in accordance with paragraphs 1 and 2 above in respect of any existing applications or appeals in current proceedings. Unless permission is obtained to take further steps or to proceed with any current applications or proceedings, those existing applications and proceedings will be stayed.

(4) That the appellant be restrained from addressing or corresponding with the staff of the Civil Appeals Office, the staff of the High Court or the staff of any county court in a rude or abusive manner in relation to any matter whatsoever.

(5) That if the appellant wishes to seek an amendment or the discharge of this order, he must apply in writing to Brooke or Dyson LJJ and the application will be dealt with on paper alone.

(6) That if any of the named judges are unavailable, another judge may be assigned by the relevant Head of Division to deal with applications under paragraph 1 of this order, as appropriate.

(7) That a copy of the transcript of the judgment be provided to the appellant at public expense.

(8) That the appellant should pay the respondent's costs of this application assessed in the sum of £4,000 on account, the remainder to go forward to a detailed assessment.