England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE COULSON

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th July 2010

Lord Justice Patten:

1. This is an appeal by Mr Ewing, who is a vexatious litigant, against an order by Coulson J that he should make an interim payment of £22,500 in respect of the costs of his failed application under s.42(3) of what is now the Senior Courts Act 1981 ("the 1981 Act") for leave to bring proceedings against the Respondents for defamation.
2. The proposed claim was based on an article published in the Sunday Times on 11^th February 2007 alleging that an unincorporated association called the Euston Trust had accepted £10,000 to drop its objections to a development in Weston-super-Mare. The article went on to say that this was not an isolated incident and that the Trust had obtained money from other builders and developers in return for withdrawing objections it had lodged to their planning applications. The central allegation in the article was that the Trust was not a genuine conservation or similar group with a legitimate interest in objecting to the planning applications in question. It was what the writer referred to as an unregulated body run from a North London council flat by the appellant whom the article described as "a convicted fraudster".
3. Mr Ewing was indeed convicted on a number of counts of thefts and forgery in 1981. In 1990 he was made the subject of a civil proceedings order under s.42(1) of the 1981 Act on the basis that he had, by then, commenced a total of 37 sets of proceedings, 25 of which were considered by the Divisional Court and found to be vexatious when making the civil proceedings order. Since then he has made at least 19 applications for permission to commence proceedings, most (if not all) of which have been unsuccessful.
4. The effect of the s.42 order is that Mr Ewing is debarred from commencing civil proceedings in the High Court or in any inferior court without the leave of the High Court. Under s.42(3) leave is not to be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court and that there are reasonable grounds for the proceedings or application.
5. Treacy J directed an oral hearing of the application for leave in this case which was heard by Coulson J on 19^th June 2008. In a 124-paragraph reserved judgment handed down on 22^nd July the judge carefully analysed Mr Ewing's history as a vexatious litigant; the details of the claim against the respondents; the issues raised by the parties; and his conclusions on them. In short, he concluded that the allegations made in the articles could be justified or were subject to qualified privilege; that Mr Ewing had failed to deal substantively with the allegations; and that any damages that might be awarded would, at best, be nominal. Mr Ewing, as the judge noted, has in any event commenced similar proceedings in Northern Ireland and Scotland where he is not subject to any civil proceedings order.
6. For all these reasons the judge refused him permission to bring the English proceedings. Under s.42(4) of the 1981 Act there is no right of appeal against a refusal of permission and we are therefore concerned only with the question of costs. Although Mr Ewing has produced a written skeleton argument which challenges the judge's decision to refuse leave, those arguments are not open to him on this appeal.
7. At the hearing of the application for leave the respondents were represented by solicitors and counsel who fully participated in the proceedings. An application was made for costs and they submitted a breakdown of costs totalling some £43,392.50. The judge ordered Mr Ewing to pay their costs of the application, to be subject to detailed assessment, but directed an interim payment in the sum of £22,500. He said in his judgment that although the total costs bill seemed high, the £22,500 was an amount which the respondents were likely to recover in any event following an assessment.
8. With the permission of Eady J, Mr Ewing served a notice of appeal challenging the interim costs order. There is no challenge to any other parts of the judge's order, including the order for costs in the respondents' favour. The grounds of appeal are that the figure of £22,500 took no account of the appellant's means; was out of proportion to the likely recovery on the assessment; and that the judge was wrong to make the order in favour of both Times Newspapers and News International because he (Mr Ewing) had conceded at the hearing that News International need not be joined as a defendant to the proposed proceedings and no order in its favour was sought by his counsel.
9. More fundamentally, the appellant also contends that neither respondent had any locus to appear on the application for leave under s.42(3) and that the interim costs orders made in their favour were therefore made without jurisdiction. This is a point which was not taken before the judge.
10. Prior to this hearing the solicitors acting for the respondents have indicated that their clients would not be attending by counsel to oppose the appeal, although they do not formally consent to it being allowed. That decision was, they said, an essentially pragmatic one designed to save the expenditure of further costs which are unlikely to be recoverable from the appellant. They have also indicated that they regard the costs orders made by the judge as being made in favour of Times Newspapers Limited, not News International which is the holding company of the publisher. It is therefore unnecessary to consider that aspect of Mr Ewing's appeal. But, as a result of these developments, we have not had the assistance of counsel from the respondents and have heard limited submissions from Mr Ewing alone.
11. I deal first with his argument based on jurisdiction. In Jones v Vans Colina [1996] 1 WLR 1580 this court decided that a prospective defendant to proceedings by a vexatious litigant against whom a civil proceedings order had been made was neither a party to the application for leave under s.42(3) nor was entitled to be made one. The particular issue in that case was whether a prospective defendant had locus to set aside grant of leave but the decision is of general application to the status of a prospective defendant.
12. The decision in Jones v Vans Colina turned very much on the provisions of RSC O.32 r 6 which was relied on in relation to the application to set aside the grant of leave. As Nourse LJ said (at page 1584):

"The power expressed in Ord 32, r 6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standi to make it."

13. The point was taken that it was common for the Attorney-General to be given notice of the application for leave but, as Nourse LJ observed (at page 1585), the Attorney-General was in a different position because he had made the original application under s.42 for the civil proceedings order.
14. Since then, however, the position has changed. CPR Practice Direction 3A PD.7, which applies where a civil proceedings order is in force, provides that:

"7.6 The application notice, together with any written evidence, will be placed before a High Court judge who may:

(1) without the attendance of the applicant make an order giving the permission sought;

(2) give directions for further written evidence to be supplied by the litigant before an order is made on the application;

(3) make an order dismissing the application without a hearing; or

(4) give directions for the hearing of the application.

7.7 Directions given under paragraph 7.6(4) may include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings for which permission is being sought.

…

7.9 A person may apply to set aside the grant of permission if:

(1) the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him, and

(2) the permission was granted other than at a hearing of which that person was given notice under paragraph 7."

15. These new rules were clearly designed to reverse the effect of the decision in Jones v Vans Colina by allowing the High Court judge dealing with the application to direct it to be served on prospective defendants as well as the Attorney-General. If exercised this would, in my view, have the effect of making them parties to the application and so entitle them to apply for their costs. Treacy J made just such an order on 6 February 2008. Conversely if not served with the application for leave a prospective defendant may now challenge the grant of leave and, if successful, would be entitled to apply for his costs.
16. Mr Ewing's response to this is that the Practice Direction is ultra vires s.42 of the 1981 Act. He has produced detailed arguments on this point which require consideration to be given to other provisions of the CPR and the inter-relation of s.42 with the power to make Practice Directions under the Civil Procedure Act 1987.
17. In the absence of any legal representation from the respondents and given the importance of some of these questions, it would not be appropriate, in my view, for this court to attempt to resolve these issues on an appeal to which there is no real opposition. For the same reason, it would, I think, be a disproportionate and unjustified use of court time for us to attempt to go into the multitude of reasons adduced by Mr Ewing for saying that the judge's assessment of the amount of the interim payment was wrong. Although I am unconvinced by his submissions on jurisdiction and many of his criticisms of the judge's reasoning on costs, I propose to confine myself to saying that the amount of the costs claimed by the respondents does seem to be out of proportion to an application for leave and that the judge's calculation of the interim payment is arguably less stringent than it should have been. In the absence of any effective opposition by the respondents to Mr Ewing's arguments on proportionality, I would therefore allow the appeal against the interim order on these grounds alone.
18. What has emerged from this appeal is the need for judges who deal with applications for leave to take a much more cautious and structured approach to the scale of the application and its potential costs implications when making directions under CPR 3A PD.7. Except in particularly complex cases most applications for leave should be dealt with on paper by the judge on the basis of the material placed before the court on the application. Oral hearings of such applications should be very much the exception. If assistance is required in the form of submissions from the prospective defendants, that can be provided by a direction that the papers be served on them and that they provide any submissions they wish to make in writing. Although the judge should use his powers under the Practice Direction to ensure that he has what he needs to decide whether or not to grant leave, an application should not be allowed to turn into some kind of mini trial of the prospective action. Judges should bear in mind that the purpose of the civil proceedings order is to avoid the unnecessary use of court time and resources on unjustified litigation and to protect prospective defendants from the expense which that involves. As on an application for leave to appeal or for permission to seek judicial review, the judge should therefore attempt to deal with the application on a summary basis and so avoid costs consequences which may be totally disproportionate to the complexity and importance of the issues involved.
19. For these reasons, I would therefore allow this appeal. Mr Ewing has made an application for the costs of the successful appeal but I would, in the circumstances, make no order for costs.

Lord Justice Elias:

20. I agree.

Lord Justice Ward:

21. I also agree. So the appeal is allowed, paragraph 3 of Coulson J's order of 22 July 2008 is set aside, and there will be no order for costs of the appeal.

Order: Appeal allowed