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Cite as: [2000] EWHC Admin 286
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HM ATTORNEY GENERAL v. EBERT [2000] EWHC Admin 286 (31st January, 2000)
Case no: CO/4506/98
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(DIVISIONAL COURT)
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Friday, 7th July, 2000
LORD JUSTICE LAWS
MR JUSTICE SILBER
-------------------
-v-
EBERT
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MR JAY QC and MS AYLING (instructed by the Treasury Solicitors) appeared
on behalf of the Applicant
THE RESPONDENT APPEARED IN PERSON
J U D G M E N T
As Approved by the Court
Crown Copyright ©
LAWS LJ:
Introduction
1 HM Attorney General applies to this court for a civil proceedings order to be made against the respondent Gedaljhu Ebert pursuant to s.42 of the Supreme Court Act 1981, whose provisions material to the issues in this case are as follows:
"(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground -
(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or
(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another...
the court may, after hearing that person or giving him an opportunity to be heard, make a civil proceedings order...
(1A) In this section -
`civil proceedings order' means an order that -
(a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;
(b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and
(c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court...
(2) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.
(3) Leave for the institution or continuance of, or for the making of an application in, any civil proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.
...
(4) No appeal shall lie from a decision of the High Court refusing leave required by this section..."
Before us the Attorney was represented by Mr Robert Jay QC. Mr Ebert appeared on his own behalf.
Background
2 The background to the case, as was said by Mr Glendinning of the Treasury Solicitor's Department who swore an affidavit in support of the Attorney's application, "is undeniably of some considerable complexity". It has had to be described in many judgments of the courts already given; as for example in the recent judgment of Simon Brown LJ in this court, which for reasons I shall explain in due course adjourned the application on 31 January 2000; and in the judgment of Laddie J sitting with Neuberger J on 6 March 2000. It is however our duty, now that the application falls to be finally determined, to set out the history again. In the account which follows I have drawn, as did Simon Brown LJ, on Mr Glendinning's succinct narrative.
3 In the late 1980s Mr Ebert embarked upon an enterprise in property development along with a Mr Morris Wolff. It was done through a company of which the two of them were in substance the owners: Europride Ltd. Mr Ebert was the day-to-day manager of the property portfolio. Mr Wolff's task was to arrange the finance. With the benefit of considerable facilities obtained through the offices of a number of banks (including Bank Leumi and Midland Bank plc), Europride acquired a substantial portfolio, amounting to something like 220 properties. The banks, of course, took security for what they advanced, and did so in a number of forms. Midland Bank had joint and several personal guarantees from Mr Ebert and Mr Wolff, limited in each case to a right to recover £100,000 plus interest. There was express provision that release of one guarantor would not release or affect the liability of the other. As I shall show, these guarantees have in a sense been the genesis of the whole sorry tale of the vindictive, misconceived and repetitive litigation upon which Mr Ebert was to embark and in which he would persist with a tireless but barren determination, wasting thousands upon thousands of pounds of other people's money, lost in irrecoverable legal costs, along the way.
4 The market went sour. Europride got into financial trouble. In May 1992 Mr Ebert and Mr Morris Wolff fell out. Each alleged that the other had had a lot of money from the company without any proper authority. Litigation followed. None of those early proceedings, however, are relied on by the Attorney for the purposes of the present application. Then in June 1992 a firm of solicitors, Messrs Teacher Stern and Selby, was instructed - on the face of it by Europride, Mr Ebert would say by Mr Wolff - to give advice as to the method and means of removing Mr Ebert from his directorship and from the company's offices. Mr Jacob Rabinowicz, who as I will show figures prominently in proceedings which are specifically relied on by the Attorney, was the partner who acted in the matter. An injunction was obtained in Europride's name against Mr Ebert, but it was discharged pursuant to an agreement between the parties to submit their differences to arbitration by the Beth Din, which is described in Mr Glendinning's affidavit as the Court of the Chief Rabbi.
5 The Beth Din undertook this arbitration. It asked Europride's auditors to provide a valuation of the company's portfolio. The value was put, as at 7 September 1992, at £2,358,000. Europride's debts to Bank Leumi at that date exceeded that sum by about £1.4m. The Beth Din made an order that a debenture be provided in favour of Bank Leumi in exchange for an injection of cash, or alternatively that a liquidator be appointed. A debenture was executed on 22 September 1992. It has been one of Mr Ebert's assertions in the course of this troubled history that for his part he was deceived into executing this debenture, having been led to believe that a substantial quantity of cash would be injected into the company in contrast to the small amount in fact paid. He has asserted that the debenture was given as part of a conspiracy against him, orchestrated by the banks, the solicitor Mr Rabinowicz, Mr Morris Wolff and his brother Ralph. In reality it is wholly plain that the debenture was nothing more than a sensible administrative convenience which enabled Bank Leumi to appoint receivers under it, whereas otherwise they would have had to proceed under the legal charge secured on each individual property.
6 In October 1992 Bank Leumi, after making demand upon Europride, put the company into administrative receivership pursuant to powers conferred by the debenture. Midland Bank made a separate demand and themselves appointed receivers in relation to the three properties as regards which they enjoyed specific charges. Further valuations of the portfolio were obtained, broadly in line with the earlier one. Then in March 1993 the entire portfolio was sold by the administrative receiver to a Gibraltarian company for £2,562,000. Mr Ebert has alleged that this sale was improper, being (a) for an undervalue and (b) to a company indirectly associated with Mr Wolff.
7 Notwithstanding this sale, Europride remained insolvent. Mr Ebert himself initially petitioned for it to be put into liquidation but he was substituted on the petition by the Liverpool City Council. A winding-up order was made on 25 July 1993.
The Origins of the Conduct Complained Of
8 There are the following particular themes which have driven Mr Ebert, and ultimately brought him to face this application by the Attorney General.
(1) The Midland Bank's Judgment
9 I have already referred to the guarantees jointly and severally entered into by Mr Ebert and Mr Morris Wolff as security for loans advanced to Europride by the Midland Bank. In 1995 the bank sued both guarantors. The sum originally claimed against Mr Ebert, in action 1995 M No 156, was £56,119-47. The bank issued a summons for summary judgment against Mr Ebert. The matter came before Deputy Master Cooper on 6 June 1995. He gave judgment against Mr Ebert for £55,894-70. That sum was of course somewhat less than the figure originally claimed. That was because insufficient credit had been given for sums which the bank had received, and there was some mistake in the calculation of interest. Mr Ebert appealed the Deputy Master's order to His Honour Judge Bentley QC sitting as a judge of the High Court in chambers. On 7 July 1995 he dismissed the appeal, but gave the bank leave to amend the statement of claim so as to reduce the sum claimed yet further, to £54,374-78. He also gave leave to amend the summons seeking summary judgment accordingly. However the judgment for £55,894-70 remained extant in the cause book. In fact the bank solicitors agreed, I understand on 4 February 2000, that the cause book be amended to show £54,374-78. Mr Ebert has not paid that or any other sum.
10 I mention this litany of minor inaccuracies (for that is what they plainly are) because Mr Ebert has sought to elevate them into fatal defects whose consequence is that the Midland Bank had no lawful judgment against him at all. The steps he has taken to do so form part of the basis of the Attorney's application under s.42. I may at this stage convey something of the flavour of Mr Ebert's conduct in relation to this particular aspect of the history by citing from two judgments delivered in 1998. First there is a judgment of Potter LJ, sitting with Mummery LJ, given on 25 March 1998 in bankruptcy proceedings brought against Mr Ebert (to which I will refer further). Potter LJ said (transcript 10F-11E):
"When faced with the appeal [sc. by Mr Ebert against Deputy Master Cooper's judgment], it appears that the Bank sought to amend its statement of claim, and, when the matter came before the judge in chambers, leave was given to amend the statement of claim to show a sum due in the slightly smaller amount of £54,374-48, following which the appeal was dismissed. Liberty was given to amend the summons seeking final judgment. However, it appears that the judgment was not reduced in amount. It further appears (although I think nothing turns on this and it is no more than a technicality) that the judgment was entered in the cause book as an order and was not otherwise perfected. That being so, the applicant takes the point, not only that the judge was misled, but that the bankruptcy was dealt with on the basis of a sum excessive by the difference between the two judgment sums.
I do not think that that fact alone is any basis upon which the order for bankruptcy should be set aside. There is no doubt that at the same time as the particular judgment No 156 was reduced to £54,374-48, there was also extant a judgment regularly entered in action No 906 for the somewhat greater sum of £55,894-70, pursuant to which the demand and subsequent proceedings could equally have been made. But, whether or not that was so, it seems clear to me that if, at any given stage, notice of the discrepancy had been brought to the attention of the judge, he would simply have treated it as an irregularity, so that the matter would have proceeded nonetheless on the basis of the amount of the judgment debt truly outstanding. This particular point, belatedly taken, is no basis on which at this late stage to reverse the order for bankruptcy originally made."
The reference to action No 906 is to the proceedings issued and judgment obtained by the bank on the guarantee against Mr Morris Wolff, which will figure in the next stage of the narrative. The second text to which I must presently refer is a judgment of Aldous LJ, sitting with Nourse LJ, delivered on 5 June 1998 upon an application by Mr Ebert in the bank's proceedings (1995 M No 156) against him. The learned Lord Justice said this:
"... it is said that in the judgment of the Court of Appeal given by Lord Justice Potter he stated that there was an irregularity and therefore the order that was made by the master was not appropriate. That, in my view, is not correct. Judgment was given for £55,000 odd which was the correct sum upon the amended pleading... What in fact happened was that the pleading was amended pursuant to the order of His Honour Judge Bentley to record that damages of £54,000 odd were claimed. The judgment which had already been given by the deputy master for £55,000 odd was the correct sum. Mr Ebert says that there could not be a judgment before amendment. As there had been an amendment and nothing existed before it, the judgment which was given by the deputy master ceased to exist. The answer to that is that Mr Ebert is incorrect in law. The amendment regularised the position and, following the amendment, the order made was correct."
It is to be noted, moreover, that in a letter written on 9 March 2000 to the Master of the Rolls Mr Ebert bitterly attacked the judgment of Aldous LJ, claiming that it was obtained by fraud, and alleged that documents bearing court stamps and coming into existence in the course of the processes of action 1995 M No 156 were forgeries; an accusation he repeated in his submissions before me. I have examined all the materials to which Mr Ebert referred, and it is utterly plain that these allegations have not the ghost of any foundation.
(2) The Assignment
11 In June 1995 the Midland Bank had also obtained judgment against Mr Morris Wolff, for £55,894-70. That was in action 1995 M No 906, which was referred to by Potter LJ. Mr Wolff could not pay. His brother Ralph desired to save him from the bankruptcy which loomed. So it was that on 22 January 1996 a deed was executed whereby the bank assigned the benefit of its judgment against Mr Ebert to Mr Ralph Wolff for a consideration stated to be in the sum of £64,886-19; and Mr Morris Wolff was released from his liability to the bank. On 6 March 1996 Mr Ralph Wolff served a statutory demand on Mr Ebert in relation to the assigned judgment debt. His solicitor was Mr Rabinowicz. (The bank had itself served a statutory demand on Mr Ebert in October 1995; but following the assignment, it was accepted that that fell to be set aside.) There followed proceedings by Mr Ebert to set aside Mr Ralph Wolff's demand, which were ultimately unsuccessful. Mr Ralph Wolff presented a bankruptcy petition on 22 November 1996. Mr Ebert contested the petition, very largely on grounds which went to the validity of the statutory demand; they had already been concluded against him. Ultimately on 22 July 1997 Lloyd J made a bankruptcy order. Mr Jay for the Attorney has pitched his case on the basis that from this stage on Mr Ebert's conduct of proceedings is plainly demonstrated to have been vexatious.
12 At this stage it is helpful to isolate and emphasise certain aspects of Mr Ebert's attitude to the assignment of the bank's judgment debt to which the Attorney attaches particular importance. One point to which Mr Ebert has repeatedly drawn attention is the fact that the deed of assignment incorrectly recites the action number of the bank's proceedings against him under the guarantee. The deed refers to "action 1994 M No 1568", whereas of course the correct reference was 1995 M No 156. This was characterised by Neuberger J as an "obvious mistake" on 28 August 1997, when he dismissed Mr Ebert's application to annul the bankruptcy order; he had affidavit evidence from Mr Rabinowicz and another witness to the effect that it was a typographical error, and he had also examined the court file in the case whose true number was 1994 M No 1568, and unsurprisingly had found that it had nothing to do with Mr Ebert or the brothers Wolff or Europride. I should in fairness record that Mr Ebert was represented by counsel on that occasion before Neuberger J.
13 The other point which has become a theme revisited again and again by Mr Ebert is the suggestion that Mr Ralph Wolff never paid the consideration stated to be due to the Midland Bank. This seems first to have been confronted in the courts by Rimer J who on 5 November 1996 allowed Mr Ralph Wolff's appeal against an order made on 24 July 1996 by Mr Deputy Registrar Scott setting aside Mr Wolff's statutory demand upon Mr Ebert. Rimer J said this (transcript 15C-16C):
"He [Mr Gourgey, counsel then acting for Mr Ebert] submitted that the assignment appeared to be so odd that there must be a real question as to whether Mr Wolff has in fact paid Midland the £64,886-19, and that the receipt clause in the deed was not conclusive evidence that he had...
I agree with Mr Gourgey that the assignment reflects an unusual transaction which appears to offer no commercial advantage to Mr Wolff, and which appears on the face of it to be likely to result in his suffering a loss... I accept that the receipt clause is not conclusive evidence that the £64,886-19 has been paid in full, but there is no evidence suggesting that it has not, and I see no reason to assume that it has not.
In my judgment, however, none of these points provides a ground justifying the setting aside of the statutory demand. An assignment on apparently uncommercial terms is no less valid than one on commercial terms, and I do not regard Mr Wolff's motive in taking it as material. Even if the consideration for the assignment has not been paid in full, I do not accept that that can affect its validity."
14 The true position relating to Mr Ralph Wolff's payment of the assignment consideration was further examined in detail and conclusively determined against Mr Ebert by Neuberger J on 10 December 1997, when he dismissed a series of applications made by Mr Ebert in the bankruptcy proceedings. This is what he said (transcript 4G-6C):
"Ralph decided to help his brother out of fraternal affection and loyalty and made money available for that purpose... it would appear that Ralph Wolff had money in a bank account with Kleinwort Benson in Jersey. £150,000 was paid out of his ex-sterling deposit account into his Kleinwort Benson Jersey UK sterling account on 15th November 1995. On 16th November 1995 pursuant to an instruction given to his bankers in Jersey on 15th November 1995, £150,000 was paid out of that to an account in the name of his brother at Coutts Bank in Old Park Lane, London. One sees from Morris Wolff's Coutts account that £150,000 was indeed paid into that account on 17th November 1995. When that money was paid in there was a small deficit in Morris Wolff's account, and it went into credit solely due to the payment of the £150,000. It then remained in credit until 13th December 1995 when a sum of £67,780 was paid out to Teacher Stern, the solicitors [who] also had been acting up to then for Morris Wolff. It appears clear from the Coutts account that this money effectively... was paid from the £150,000 paid in by Ralph Wolff. That money was then paid into an account at Teacher Stern in the name of Morris Wolff as the client and it is recorded as being paid in on 13th December 1995. On 14th December 1995 a sum of a little over £50,000, and on 11th January a sum of over £14,600 was paid to Eversheds, who were the solicitors acting for the bank.
On 16th January 1996 the bank issued a release of liability of Morris Wolff. On 22nd January 1996 the benefit of the judgment debt of £55,894-70 and costs, which had been obtained on 6th January 1995 [sic: a mistake for June 1995] by the bank, was assigned by the bank to Ralph Wolff. Although it is fair to say that the solicitor acting for the Wolffs said in his affidavit in fairly clear terms that the money paid to Teacher Stern was directly from Ralph Wolff, Mr Ebert is right to say that that is not in fact what happened. However, in view of what one sees from the documents that have been produced, showing where the money which paid the Midland Bank came from, as well as what is said in clear terms in Ralph Wolff's affirmation sworn... on 18th November 1997, it seems to me quite clear that the money did come from Ralph Wolff."
15 Mr Ebert has asserted that documentation relating to the relevant account at Coutts was forged. But there is no evidence at all of any such thing. In truth, court after court has held that the assignment is good and enforceable.
16 There is no more mileage for Mr Ebert in his assault on the assignment than in his assault on the bank's judgment. Both are completely hopeless. 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. In the next section of this judgment I will trace, as briefly as I fairly may, the sorry history of litigation which has, inevitably, yielded this result.
The Particular Litigation Relied on by the Attorney General
17 The Attorney relies on Mr Ebert's conduct in seven distinct sets of proceedings, which are described, with the necessary references to the original documentation where that is available, in Mr Jay's skeleton argument. The second set of proceedings is in my judgment the most important: it relates to the statutory demand and the bankruptcy petition. It is in that litigation that the astonishing nature of Mr Ebert's conduct is most patently apparent, and I must deal with the details there to be found at some length. I have already indicated that Mr Jay puts the Attorney's case on the footing that vexatious and abusive process may demonstrably be laid at Mr Ebert's door from July 1997 onwards, after the bankruptcy order was made against him by Lloyd J on 22 July. For my part I would not condemn Mr Ebert, for the purposes of s.42, by reason of his actions prior to that time. On that basis the first action relied on by the Attorney is somewhat marginalised (and in fact Mr Ebert's statement of claim in that case was settled by counsel). However, it is of some importance as setting the scene for what followed.
The first action: Ebert v Wolff & ors CH 1995 E No 2371
18 The writ was issued on 26 April 1995. Mr Ebert sued six defendants, including Mr Morris Wolff, Bank Leumi, and the purchaser (Coolgrove Ltd) of Europride's portfolio. The essential allegation was that they had conspired to injure him "by removing from his possession, power or control his beneficial interest in the shares of Europride and/or the Europride portfolio" (statement of claim, paragraph 8). However on a perusal of the whole statement of claim it is plain that the wrongs and losses complained of could only have been suffered by Europride itself; and in addition, the merits of Mr Ebert's accusations of misappropriation of funds had earlier been gone into and determined by the Beth Din. On 30 October 1995 Master Moncaster struck out the claim as against the first, second, fifth and sixth defendants. On 6 March 1996 the Vice-Chancellor dismissed Mr Ebert's appeal: the order as drawn shows that it was dismissed by consent. The action apparently remains technically alive as against the third and fourth defendants (Bank Leumi and Mr Bowie, who valued the Europride portfolio), but Mr Ebert cannot proceed against them without leave having regard to Grepe v Loam ((1887) 37 Ch D 168) orders made against him by Neuberger J on 7 July and 23 October 1998.
The second action: Statutory Demand No 238 of 1996, later Bankruptcy Petition No 11216/96
19 I have already referred to the statutory demand served on Mr Ebert by Mr Ralph Wolff on 6 March 1996. Mr Rabinowicz acted as Mr Ralph Wolff's solicitor. On 12 April 1996 Mr Ebert made an affirmation in support of an application to set aside the statutory demand. He asserted (a) that the Insolvency Rules had not been complied with, (b) that he had a counterclaim equal to or exceeding the debt specified in the demand - that was based on the suggestion that the receivers had sold Europride's portfolio at an undervalue, and (c) that in any event the assignment was invalid. On 24 July 1996, as I have already said, Mr Deputy Registrar Scott allowed this application and set aside the demand. On 5 November 1996 Rimer J allowed Mr Ralph Wolff's appeal. I have already cited a passage from this judgment (15C-16C) dealing with Mr Ebert's counsel's arguments concerning the assignment. He also dealt with and rejected a submission to the effect that the demand was oppressive because Midland Bank's earlier demand, based on the same debt, had been set aside on 21 January 1996: the bank's demand had in fact been set aside only because the debt had already been assigned to Mr Ralph Wolff. Rimer J further addressed and overturned the Deputy Registrar's reasoning on two points upon which he had found in favour of Mr Ebert. It is unnecessary to go into them since Mr Jay (clearly rightly) does not suggest that Mr Ebert's resistance to Mr Wolff's appeal, at which as I have made plain he was represented by counsel, was itself vexatious.
20 There followed on 22 November 1996 Mr Ralph Wolff's bankruptcy petition, supported by an affidavit sworn by Mr Rabinowicz. Mr Ebert, now acting in person, opposed it on grounds which essentially repeated matters he had already raised in disputing the statutory demand. Indeed paragraph 5 of his notice of opposition opens with the words: "The Debtor will rely upon all of the evidence presented to this Honourable Court in the application to set aside the Statutory Demands of both Midland Bank plc and the Petitioner herein..." In particular Mr Ebert sought to attack the validity of the assignment, and asserted that the consideration for it was not shown to have been paid by Mr Ralph Wolff; a point which, of course, had already been dealt with by Rimer J. At 12B-F of the transcript Lloyd J cited the passage from Rimer J's judgment which I have already set out. Then he said this (12H-13B):
"... a good deal of what Mr Ebert has put before me today either was argued or, if valid, could have been argued before Rimer J on that application and that his having ruled against Mr Ebert on that application is at least prima facie conclusive against him in his reliance on the same points in his opposition to the bankruptcy petition."
I repeat, for convenience, that it is from this time on that Mr Jay says Mr Ebert's conduct demonstrably became vexatious. On 23 July 1997, the day after Lloyd J's order, Mr Ebert applied in the Chancery Division for an annulment of the order. The papers apparently disclose a second application to like effect made on 7 August 1997. The point taken in Mr Ebert's affirmation in support (made on 21 August) was the assignment had recited action number 1994 M No 1568, which was the number given to a claim having nothing whatever to do with Mr Ebert, the Midland Bank, or the Wolff brothers. The application came before Neuberger J who dismissed it on 28 August 1997, and I have already referred to his comment that the action number reference was "an obvious mistake". He stated further (transcript 4G):
"It seems to me that this court would be adopting an unrealistic attitude verging on absurdity if it was to accede to the argument put forward on behalf of Mr Ebert."
21 The next stage in the bankruptcy proceedings demonstrates, to my mind, not merely an unreasonable but a vindictive turn of mind on Mr Ebert's part. On 2 September 1997 he applied for an order to commit Mr Rabinowicz to prison for "perjury, and misleading the court". The motion came before Laddie J on 18 September 1997. He first dealt with the fact that the notice of motion was wholly unparticularised, and stated (transcript 5H-6A):
"Had this been the only consideration, I would have held that this notice of motion was so fundamentally flawed that it would be improper to make any finding of contempt based upon it."
Laddie J also had to confront Mr Ebert's points, canvassed again before him, as to the wrong action number in the deed of assignment and the consideration for the assignment. As regards the action number he said (10C-F):
"This was a matter which came before Neuberger J in earlier proceedings. He clearly held that it was an error and no more. In my view, there is again not a shred of evidence to support the allegation that Mr Rabinowicz knowingly made a false statement in the affidavit, insofar as it confirmed the accuracy, to the best of his knowledge and belief, of the title of the action out of which the judgment debt arose. Indeed, I will go further than that. In my view, it is an entirely reckless and unjustified allegation to make against Mr Rabinowicz. I cannot conceive that there could be any serious doubt that all that existed was a clerical error, and to base an attempt to commit Mr Rabinowicz on this allegation is an extravagant abuse of the procedures of the court."
As for the consideration for the assignment (12B-G):
"This is a matter, at least part of which has been raised before the court a number of times. I think I should make the position clear now, if it has not been made clear before... There is, as far as I can see, no evidence whatsoever to support the suggestion that the nearly £65,000 referred to in the assignment was not paid. On the contrary, it seems to me on the basis of such documents as are before the court, that it was paid. But whether it was or not, there is no evidence whatsoever that Mr Rabinowicz confirmed that full consideration had been given for the assignment when he knew that it had not been... The suggestion that Mr Rabinowicz knew that it had not is another extravagant and baseless allegation advanced for the purpose of damaging Mr Rabinowicz's reputation, as far as I can see, and I must take it that Mr Ebert knows that it is a matter which he could not have hoped to succeed on."
Other allegations advanced by Mr Ebert, into whose details I need not I think enter, were dismissed by the judge no less robustly. The concluding passage in Laddie J's judgment is in these terms:
"I have come to the conclusion that all of the allegations made by Mr Ebert are unjustified. Not only are they unjustified, they are, in my view, and have always been unarguable. In the most extreme meaning of the words, this application is an abuse of the process of the court. It is, as far as I can see, an example of Mr Ebert's willingness to make wild and unsupportable allegations of the most damning nature against, not just his former business partner, but anybody associated with him. This Notice of Motion should never have been brought."
And the judge made what I think was the first of a whole series of Grepe v Loam orders against Mr Ebert. (The next one was made by Carnwath J on 5 February 1998, but I have not seen the text of any judgment relating to it.)
22 On 12 October 1997 Neuberger J adjourned Mr Ebert's application for annulment of the bankruptcy order to a date to be fixed, along with a further application made by him apparently to like effect for which it seems Lloyd J gave leave (as was required by the Grepe v Loam order made by Laddie J). Neuberger J also made an order for discovery against Mr Ralph Wolff, as at that stage he entertained some concern as to the genuineness of the assignment. Yet another application relating to the bankruptcy order was, it seems, sought to be launched by Mr Ebert on 19 November 1997. At length all of these applications came before Neuberger J on 10 December 1997, and he dismissed them. I have already set out what was said in that judgment about the consideration for the assignment. His judgment of 10 December 1997 also contains this passage (8A-C):
"It seemed to me that Mr Ebert has run a number of points which, I am bound to say, are badly misconceived, none the less would have had justification for being concerned that matters had not been fairly investigated before the bankruptcy order had been upheld. That concern is now gone.... I am bound to say that at that stage I was slightly concerned but I have to say that my concern has now been put to rest."
And he proceeded to address and reject a whole series of points raised before him by Mr Ebert.
23 On 22 December 1997 Mr Ebert issued an application to commit Mr Rabinowicz and Mr Ralph Wolff to prison for failure properly to comply with the order for discovery made by Neuberger J in the annulment application. On 12 January 1998 he applied as against Ralph Wolff "for the review and rescission" of Rimer J's order of 5 November 1996, and "for an interim payment order of £2,500,000 - or as the Court thinks is fit". Both of these matters came before Rimer J on 19 January 1998. He dealt with the January 1998 application first. He said (6G-7A):
"The main point, and really the only point, which Mr Ebert has argued today, is that he says that there is no evidence that any money was paid by Mr Ralph Wolff and that,, in so far as money was paid, it was paid by Mr Morris Wolff in discharge of his own liability. It seems to me that that is simply a straight re-run of the argument which was deployed by Mr Ebert in front of Mr Justice Neuberger on 10th December 1997."
As regards the motion to commit issued on 22 December 1997, the judge went into all the points taken by Mr Ebert and said (20A-B):
"I take the view that this application to commit these gentlemen to prison was a gross abuse of the process of the court and was as much an abuse of the process of the court as was the application made to Mr Justice Laddie last year. I have no hesitation in dismissing it."
24 On 25 March 1998 the Court of Appeal had to consider applications for leave to appeal by Mr Ebert against Neuberger J's order of 10 December 1997 and a further order of Neuberger J of 30 December 1997 when he declined to revise his earlier order. I have already cited the judgment of Potter LJ given on that occasion, in relation to Mr Ebert's assault on the Midland Bank's judgment. The court also had to deal with Mr Ebert's arguments relating to the assignment, and found no difficulty in upholding Neuberger J's decision of 10 December. Potter LJ's judgment ends thus:
"A number of other points have been made, many of which have been canvassed on previous occasions before previous judges as well as Mr Justice Neuberger in the course of the proceedings. However, none of them, in my view, amounts to grounds of appeal."
25 On 30 April 1998 Neuberger J heard a further application by Mr Ebert, for which he had given leave pursuant to the extant Grepe v Loam orders. The application was for a determination whether Mr Ralph Wolff should be entitled to prove in the bankruptcy for the whole of the debt owed by Mr Ebert to the Midland Bank under the guarantee or only half. Neuberger J decided the issue against Mr Ebert. On 10 and 12 June 1998 Mr Ebert made two applications to Neuberger J "for leave if necessary to set aside the Assignment and the transaction made between the Midland Bank and Ralph Wolff..." Neuberger J dismissed these applications on 7 July 1998, and made a third Grepe v Loam order in these terms:
"... the Applicant be not allowed to make any further Applications or take any steps in this Court in or arising out of these present Bankruptcy proceedings No 11216 of 1996 or concerning any matters involving or relating to or touching upon or leading to these present Bankruptcy proceedings or the conduct thereof..."
The order also required any application for leave to be made to Rimer J or Neuberger J, by whom it would be dealt with on paper. We have not seen a transcript of Neuberger J's reasons given on 7 July 1998, but the irresistible inference (not least given the terms of the Grepe v Loam order then made) is that Mr Ebert had sought to re-run some or all of his now overworked points.
26 On 10 September 1998 Mr Ebert sought leave to appeal Neuberger J's order of 7 July. Leave was refused on the merits. Evans LJ, sitting with Nourse LJ, said (transcript p.5):
"The short answer to Mr Ebert's application... is that he cannot raise again the same matters which he has raised unsuccessfully so often before."
However the court adjourned that part of the leave application which related to the Grepe v Loam order made by Neuberger J on 7 July, there being an important point whether the Grepe v Loam jurisdiction went so far as to allow the court to make an order prohibiting the institution of new proceedings without leave, as opposed to the making of further applications in existing proceedings. Then on 17 September 1998 Mr Ebert made another application for leave to Neuberger J. It went, yet again, to the question whether Mr Ralph Wolff had paid the consideration for the assignment. Neuberger J refused the application on 1 October 1998. On 23 October 1998 Neuberger J struck out as abusive an application by Mr Ebert against the liquidator of Europride and the Midland Bank, and made a fourth Grepe v Loam order, also in wide terms so as to cover proceedings not yet instituted. On 8 December 1998 the Court of Appeal (Nourse, Judge and Tuckey LJJ) adjourned Mr Ebert's leave applications in relation to the Grepe v Loam orders to a date to be fixed; in fact they were argued on 17 March 1999.
27 On 14 January 1999 Neuberger J heard and dismissed another application by Mr Ebert to have the bankruptcy order set aside. Mr Ebert applied for leave to appeal on the same day. Then on 29 March 1999 Neuberger J heard an application by Mr Ebert to set aside the order which he had made on 28 August 1997, refusing to set aside the bankruptcy order. Neuberger J had, by permission of the Master of the Rolls, sight of the judgment which was to be handed down the next day in the Court of Appeal dealing with Mr Ebert's applications for leave to appeal the Grepe v Loam orders of July and October 1998. Neuberger J was taxed yet again with Mr Ebert's protestations about the Midland Bank judgment and the assignment. The judge said (6D):
"Regrettably, this appears to be yet another attempt by Mr Ebert to raise points which have been gone over time and again, albeit for a different purpose; namely to impeach my judgment 28th August 1998."
On 30 March 1999 the Court of Appeal dismissed Mr Ebert's applications for leave to appeal the Grepe v Loam orders. The decision is reported at [1999] 3 WLR 670. The court held that the High Court possesses an inherent jurisdiction to prevent the initiation without leave of proceedings which were likely to constitute an abuse of process. For present purposes I should cite these observations of Lord Woolf MR, giving the judgment of the court, first at 672G-H:
"That a court should have the jurisdiction which is in issue can hardly be doubted. The facts of Mr Ebert's litigation make the need for the jurisdiction abundantly clear. Mr Ebert by a series of vexatious proceedings has caused the parties to these proceedings to incur very considerable expense which they have little, or no, hope of recovering. Those parties are the liquidator of Europride Ltd., the Midland Bank Plc., Mr Ebert's trustee in bankruptcy and Mr Ralph Wolff.
We are prepared to accept that Mr Ebert may initially have had reason to consider that he had been hard done by, because his co-guarantor had avoided all liability; but it is clear that Mr Ebert has already brought vexatious proceedings, and that he will continue to bring such proceedings unless he is restrained from doing so."
Then at 681E ff the court dealt with the application to appeal the order of 23 October 1998 whereby Neuberger J had struck out as abusive an application by Mr Ebert against the liquidator of Europride and the Midland Bank. Lord Woolf MR summarised the history, cited from Potter LJ's judgment of 25 March 1998, and said this (683G-684B):
"It is quite clear from the judgments of Neuberger J and of Potter LJ that the validity and effect of the assignment was at the very heart of the proceedings to annul the bankruptcy order. If, as Mr Ebert contends in his originating summons, the assignment was ineffective and invalid, then it is clear that no bankruptcy order should have been made. That matter has been investigated at length by Neuberger J and this court has refused leave to appeal against his decision. It follows that it would be an abuse of the process of this court to allow the matter to be relitigated by Mr Ebert, albeit in an action against the Midland Bank.
The second and third orders sought in the originating summons relate to the debt owed to the Midland Bank by Europride Ltd. in liquidation. Again, that debt was the foundation of the bankruptcy proceedings. If there was no debt, then there was no basis for the judgments that were obtained by the Midland Bank against Mr Morris Wolff and Mr Ebert. Having regard to those judgments it would be an abuse to allow Mr Ebert to reopen the matter in the originating summons proceedings.
Lastly, Mr Ebert sought to raise against the Midland Bank questions as to whether the procedure adopted under the assignment was unlawful in that it was without the consent of Europride and carried out with the intention to defraud creditors. The bankruptcy proceedings were concerned with judgment debts owed by Mr Ebert and Mr Morris Wolff. If Europride owed the money to the bank then it has been paid in full by Mr Morris Wolff and creditors of Europride have in no way been defrauded. There is no basis for the order sought in fact or law."
28 Next, on 20 April 1999 the Court of Appeal dismissed Mr Ebert's application for leave to appeal against Neuberger J's order of 14 January 1999. On 25 May 1999 Neuberger J was faced with three further applications by Mr Ebert. As the judge said, "they all arise out of the fact that Mr Ebert and Mr Morris Wolff guaranteed the liability of a company in respect of its borrowings to the Midland Bank..." One application was to challenge the judgment against Mr Ebert in action 1995 M No 156. The second was to review Rimer J's decision of 5 November 1996. The third was to set aside the judgment of Lloyd J on 22 July 1997 when he made the bankruptcy order. Neuberger J patiently dealt with each application, and then said this (6B-F):
"As usual, I am afraid, these are arguments which Mr Ebert has sought to raise, arguably under a slightly different guise, in many of his previous unsuccessful applications. Mr Ebert feels very strongly about this matter, he feels that he has been deceived, he feels that the agreement between Mr Ralph Wolff and the bank was a sham, he feels that he has not had justice. I have done my best on every occasion to deal with all his points: but they are the same points; they are bad points. I say this without, I am afraid, much hope of it being heeded, but he really should accept, whatever he views as the justice of the case, that the situation is as it is. The door is firmly locked. As far as he knows, and I know, he only has one life and he should really get on with it and put all this behind him. There is simply no future in bombarding the court with hopeless applications, such as these three applications."
29 On 4 June 1999 Mr Ebert launched yet another challenge to the statutory demand, the petition and the bankruptcy order: Neuberger J refused permission on 21 June 1999. The judgment given on that occasion demonstrates a deepening chasm between reality and Mr Ebert. Neuberger J said (2A-E):
"... [Mr Ebert] says I have been `approached to ensure that the fraud and perjury should not come to light' and that Mr Ebert `should be denied access to justice'. Secondly, he says that I acted unlawfully and in abuse of my power and that I am guilty of `fraud and blackmail' in accordance with certain provisions that are stated and that I was `fully aware that the bankruptcy order was quite inappropriate'. He suggests that I may have been `appointed by Ralph Wolff or other to act on their behalf to ensure that [Mr Ebert] shall be liable of a fiction debt'. He also suggests that I may have been paid to ensure the above, and that I may have been `privately instructed to assist the cover up of fraud and to enable to defraud'. On that basis Mr Ebert suggests that I should not hear this application."
The judge proceeded to consider, very carefully, whether he should disqualify himself; he decided, wholly correctly, that he should not; and he went on to take great pains in dealing with Mr Ebert's particular points which he rightly and inevitably dismissed.
30 On 5 July and 26 August 1999 the Court of Appeal dismissed appeals against two other orders made by Neuberger J, on 29 March and 14 April 1999, in the bankruptcy proceedings. On 22 July 1999 Neuberger J dismissed two applications by Mr Ebert, first for "inspection of all the books and accounts of Europride Limited in receivership in relation to Midland Bank appointing LPA receivers", and secondly for three declarations of which one would have been to the effect that the proof of debt lodged by Mr Ralph Wolff in the bankruptcy was invalid or void. On 19 October 1999 Mr Ebert applied again to Neuberger J to set aside the order made by him on 28 August 1997. In dismissing the application Neuberger J said (5G-6E):
"I almost despair of Mr Ebert. I know that he appears to think that I am party to some grand conspiracy. However, I must emphasise that it seems to me that judgments have been entered against him, which he has unsuccessfully applied to set aside on a large number of occasions. Justice is not perfect. Sometimes, doing the best they can, judges do not get the right answer. The fact that a litigant believes that in a particular case the judge has come to the wrong result does not mean that that litigant has the right to keep on knocking at the door of the court... In my view, [Mr Ebert] would be better directing his energy to protecting his wife, if she is in danger of going to prison [sc. apparently for alleged non-payment of the community charge]... He should not be banging his head against this brick wall, unless, as I say, he really can come up with something new."
31 It is convenient at this stage to refer to a judgment of Neuberger J of 21 December 1999, nor given within the statutory demand/bankruptcy proceedings with which I am presently dealing, but in the course of addressing an application or applications by Mr Ebert in action 1995 M No 906, which it will be recalled were the proceedings in which the Midland Bank obtained judgment on the guarantee against Mr Morris Wolff. After setting out yet again the basics of the history, Neuberger J said this (transcript p.3):
"Having obtained an assignment of the judgment debt, Mr Ralph Wolff petitioned for Mr Ebert's bankruptcy, and eventually succeeded in bankrupting Mr Ebert. Since then, Mr Ebert has made a total of over 50 (possibly over 80) applications of various sorts, all of which have, regrettably for him, failed."
32 On 16 December 1999 Lightman J had to deal with an appeal by Mr and Mrs Ebert against an order of the bankruptcy Registrar. The question was whether an order should be made on the application of Mr Ebert's trustee in bankruptcy for the sale and possession of the matrimonial home. Lightman J observed (1F-2D):
"The real complaint made by Mr and Mrs Ebert on this application, and on this appeal, is that there was no valid bankruptcy order made against Mr Ebert... the Court of Appeal has been totally satisfied that there was a valid assignment of the judgment, on the basis of which the petition was presented and in my view, it is not open to Mr Ebert to raise before me a contention that there was in fact no judgment so assigned... it seems to me it is clear from the whole series of judgments in this matter, that the validity of the bankruptcy order is fully established and it is an abuse of process for Mr Ebert to add a further one to the succession of applications challenging its validity."
It is helpful to go next to the judgment of Simon Brown LJ sitting in this court on 31 January 2000 with Keene J, when the Attorney's present application under s.42 was listed before the court for hearing. As I said much earlier in this judgment, the application was adjourned on that occasion. The reason for the adjournment, as it was explained by Simon Brown LJ, arose from an order made by Laddie J on 12 January 2000 when he adjourned an application by Mr Ebert to be permitted under one or other of the outstanding Grepe v Loam orders to make a further application relating to the assignment. Laddie J had said (cited by Simon Brown LJ in paragraphs 18 and 19 of his judgment):
"... the material that you have put before me, relating to whether or not the money for the assignment to Midland came from Morris or Ralph. It seems to me that you may have a point and if you are right,... it looks like there was some dirty work between Morris and Ralph for the purpose of assigning the debt so as to seriously disadvantage you. I think I should tell you that I have discussed it with Neuberger J. He is also concerned that you may have a serious point on this. I am going to direct that on the issue of whether or not the funding for the assignment really came from Morris or Ralph, I am going to allow you to have an inter partes application, that is to call upon the other side to be present so that we can go through this between the parties...
Both Neuberger J and I think that if you are right on this it could seriously undermine the... bankruptcy petition... Neuberger J and I will sit together to hear it...
This has taken a long time through the courts and the court will be naturally reluctant to reopen issues which should have been dealt with time and time again..."
When the Attorney's application under s.42 came before this court on 31 January 2000, the proposed hearing before Laddie and Neuberger JJ had not yet taken place. In light of that Simon Brown LJ said (paragraph 20 of his judgment), "it has seemed to us wholly inappropriate that we should dispose of the s.42 application prior to the resolution of these issues." He went on to make it plain that even were Mr Ebert to succeed on the issues which Laddie and Neuberger JJ were to determine, that would not necessarily resolve the Attorney's application in his favour.
33 Laddie and Neuberger JJ sat together on 6 March 2000. That was an exceptional procedure, as Laddie J was to acknowledge; but it was, if I may say so, eminently sensible against the extraordinary (I hope unique) background to the case. Laddie J gave the judgment. He explained that Mr Ebert's application in January 2000 to bring yet another application in the bankruptcy proceedings had been listed before him (Laddie J) because of Mr Ebert's allegations against Neuberger J of complicity in a conspiracy. Laddie J had had nothing to do with the case for two years or so (as he himself stated: 3E-F). In this latest application, Mr Ebert alleged that certain crucial documents, upon which the bankruptcy order had been founded, had been forged: in particular, a bank statement issued by Messrs Coutts and Co. That allegation seemed to draw some support from a letter from a banking consultant whose terms were quoted by Laddie J; and it was also suggested that Mr Ebert had been refused sight of the original. Laddie J said this (6C ff):
"At the time the matter was before me, I was not shown other highly relevant material which I have no doubt would have changed my attitude to this application fundamentally. In particular, I was not shown by Mr Ebert that the authenticity of this bank statement was the subject of detailed consideration by Mr Justice Rimer on the 19th January 1998... it appears from Mr Justice Rimer's judgment on that date that when Mr Ebert had, in late 1997 or early 1998, made the allegation of forgery, he had done so on the basis only of a copy document. Mr Justice Rimer records the fact that the original bank statement, that is to say the document that Mr Willis [the banking consultant] recommended that Mr Ebert should try to get hold of, had been exhibited by Mr Rabinowicz in January 1998. I read in particular the following passage from one of the three judgments given by Mr Justice Rimer on that date:
`Mr Rabinowicz, in answer to that allegation, has exhibited the original bank statement, which I have considered and which Mr Ebert has had an opportunity to consider. The first thing to note is that it is apparent that the copy is an identical copy inasmuch as there is the same blank on the original. The second thing to note is that there is no evidence whatsoever on the original that it has been in any way doctored.'
... As I have said at the beginning of this judgment, Mr Ebert has made numerous applications to the court. He has twice, at least, brought contempt proceedings against solicitors acting for his opponents. One of those came before me and I dismissed it in fairly strong terms since it was clearly without substance. Over the last two years, Mr Ebert has continued to make the strongest possible allegations of dishonesty and fraud and forgery against his opponents. These have occupied much of the court's time. Mr Justice Neuberger has had to field tens of applications by Mr Ebert and there have been a considerable number of applications to the Court of Appeal.
... In my view, Mr Ebert's application today fails. He is trying to re-litigate matters which have been considered by the court before...
I think that this has got to stop, but the question is how can the court prevent further severe abuse of its process by Mr Ebert?"
The court proceeded to order, "in the quite extreme and unusual circumstances of this case" (per Laddie J at 9H), that Mr Ebert be not allowed to make applications under the Grepe v Loam orders more frequently than once every two months unless he could demonstrate, in writing, that a more urgent application was called for.
34 Since 6 March 2000, when that order was made, and before 2 May 2000 when we sat to hear the Attorney's application, Mr Ebert has made further applications (principally or entirely in the second action, the bankruptcy proceedings) under the Grepe v Loam orders. They were dismissed by Neuberger J on 14 and 28 March, and 12 April 2000.
The third action: Ebert v Midland Bank and Rabinowicz 1997 E No 3444
35 The writ was issued on 20 June 1997. The statement of claim, of Mr Ebert's own composition, travels over the history from the fall of Europride to the institution of the bankruptcy proceedings. The causes of action appear to be defamation and conspiracy. A question arose as to the service of these proceedings upon Mr Rabinowicz. On 4 July 1997 Mr Ebert obtained a judgment in default against him, supported by an affirmation of that date stating that on 20 June 1997 he had personally served the writ on Mr Rabinowicz at his office, where it had been received by his receptionist. Mr Rabinowicz applied to have the judgment set aside. He swore an affidavit inter alia to the effect that he was out of the office on 20 June. The receptionist also swore an affidavit, stating that she was not authorised to accept service of court documents. On 4 August 1997 Master Dyson set the judgment aside as irregular. But on 27 August 1997 Mr Ebert signed a further judgment against Mr Rabinowicz, for £8,000, allegedly for default in service of his defence. He also issued a writ of fieri facias. On 29 August Mr Rabinowicz applied to have both set aside, placing before the court evidence to the effect that he had already issued a summons to strike out the statement of claim and an extension of time for service of the defence had been agreed on the basis that Mr Rabinowicz' evidence in support of his summons be served by 26 August; in fact the Deputy Master had ordered that Mr Rabinowicz' evidence be filed by the slightly later date of 4 September. Of this Mr Ebert was duly notified, but he entered the judgment without responding. On 4 September Master Dyson set aside the judgment and ordered Mr Ebert to pay the costs. On 16 September Laddie J dismissed Mr Ebert's appeal and awarded costs on the indemnity basis.
36 The first defendants, Midland Bank, had also issued an application to strike out the statement of claim. The affidavit in support, sworn by Mr Osuntokun of Eversheds, asserted among other things that points taken in the statement of claim, such as the allegation that the summary judgment obtained by the bank in action 1995 M No 156 had been procured by fraud and that the assignment was a sham, either had been or could and should have been raised in other proceedings. This assertion was obviously true.
37 On 29 September 1997 Master Bowman struck out the action as against Mr Rabinowicz and awarded indemnity costs. Mr Ebert's appeal was dismissed by Carnwath J on 18 November 1997. Then, on 15 December 1997, Mr Ebert issued a notice of committal against the solicitor Mr Osuntokun, alleging he had misled the court. That application was dismissed with costs on 11 February 1998 by Neuberger J, who made further Grepe v Loam orders. On 24 March 1998 Master Dyson struck out the claim as against the first defendant bank. On 11 June 1998 Mr Ebert's appeal was dismissed by Jacob J, who held that the matters complained of by Mr Ebert vested in his trustee in bankruptcy and he himself had no title to sue, that the action raised issues which had already been decided, and that the allegations of defamation were frivolous and vexatious.
The fourth action: Ebert v Bank Leumi & ors 1997 E No 3786
38 The writ was issued on 9 July 1997, endorsed with a statement of claim, alleging a conspiracy arising out of the Europride saga. Mr Ebert claimed £50,000,000 for "character assassination", and £630,000 loss of director's remuneration. There were applications to strike out against at least four of the defendants, of whom the fourth was Mr Rabinowicz. His application was issued on 18 August 1997. Mr Ebert retaliated the next day, by issuing an application against him for summary judgment, alternatively for an interim payment. He issued a like application against the first defendant bank.
39 The Attorney's researches do not disclose any further steps taken in this action.
The fifth action: Gedaljahu Ebert & Devora Ebert v Ralph Wolff, Rabinowicz & Jacobs
40 The writ was issued on 18 August 1997 endorsed with a statement of claim whose effect was to repeat Mr Ebert's complaints about the statutory demand and the bankruptcy petition. His wife seems to have been joined as a plaintiff because, so it was asserted, a possession order had been made in relation to their home, they had lost the benefit of certain "life and pension insurance", and the health of both had suffered (paragraphs 27, 28 and 33 of the statement of claim). On 8 September 1998 they applied for summary judgment. The defendants, or at any rate two of them, cross-applied for orders striking out the claim. Master Bragge struck out the action on 1 October 1997. Carnwath J dismissed Mr and Mrs Ebert's appeal on 18 September 1997. There followed further applications issued by the plaintiffs, in which, however, the papers are not before us. However the Attorney says these applications were dismissed, by Carnwath J on 5 February 1998 and Neuberger J on 12 February 1998, and both judges made further Grepe v Loam orders.
The sixth action: Midland Bank Plc v Ebert 1995 M No 156
41 This, of course, is the bank's action against Mr Ebert on his personal guarantee, in which judgment was given on 6 June 1995. Under the heading "The Midland Bank's Judgment" I have already described the proceedings before Deputy Master Cooper, Judge Bentley QC, Potter and Mummery LJJ (on 25 March 1998), Nourse and Aldous LJJ (on 5 June 1998), and Mr Ebert's letter to the Master of the Rolls of 9 March 2000; I will not set out those materials again. On 23 November 1999 Neuberger J dismissed various further applications made by Mr Ebert, saying (transcript p.4):
"... Mr Ebert has had a number, I would say over 20 applications, to challenge or set aside or in some way question this judgment - not only in front of me, by no means always inter partes. He has been to the Court of Appeal on more than one occasion trying to attack this judgment indirectly or directly and has always failed. I am quite satisfied in these circumstances by the answers which have been given by Eversheds and Wilde Sapte to the points which I felt were of concern. They do not permit or justify my giving Mr Ebert permission to make an application in relation to this matter."
On 21 December 1999 Neuberger J had to deal with yet another application by Mr Ebert, to set aside the original 1995 judgment. He recorded that Mr Ebert had "tried, on more than 20 separate occasions (and that may be a substantial underestimate) to attack this judgment in various ways in the present bankruptcy proceedings". The judge then painstakingly reviewed the eight grounds which Mr Ebert now advanced before him. All were wholly misconceived, and in large measure replicated earlier arguments which had been rejected, in some cases on very many occasions.
The seventh action: Rabinowicz v Devora Ebert W1923445
42 This was an application by Mr Rabinowicz for a charging order against the Eberts' matrimonial home in relation to the costs ordered in the fifth action. An application was made on 16 June 1999 in Mrs Ebert's name to dismiss it "as an abuse of the process, and fraud, and for a claim in accordance to Part 20 CPR 1998, of damages as a victim of a `transaction to defraud' in accordance to Section 423-425 of the Insolvency Act 1986'". The application then descends into the familiar details of Mr Ebert's complaints. It is obviously his document. The Attorney understands from Mr Rabinowicz' solicitors that the charging order was made absolute.
43 On all this material, the Attorney says there is an overwhelming case for a civil proceedings order under s.42 without limit of time.
Mr Ebert's Response
44 In the course of the hearing I strove to make it clear to Mr Ebert that it was no part of this court's function to re-examine the merits of all the arguments running through this whole history (see AG v Jones [1990] 1 WLR 859, 863D-F, per Lord Donaldson MR); thus the innumerable judgments by which process issued by Mr Ebert has been dismissed or struck out are not open to any further appeal here. In every such case, Mr Ebert enjoyed rights of appeal, which he often exercised. This court is concerned only to see whether given the overall record of Mr Ebert's actions in all the litigation to which our attention has been directed, the statutory test for the power to make a civil proceedings order, provided for by s.42(1) of the Supreme Court Act 1981, has on the facts been met; and if it has, the court is then to decide whether to exercise the power, upon the Attorney General's invitation.
45 In large measure, however, Mr Ebert's stance in response to this application has been constituted by an attempt to re-run his longstanding complaints on their merits. That was a hopeless enterprise, and I see no purpose in lengthening this judgment by crossing any of that ground yet again. But Mr Ebert had more to say. He asserted that the s.42 application was "an abuse of the process and power to shut me up to avoid a Conspiracy and Fraud by all the parties..." (letter to Mr Glendinning of the Treasury Solicitor's Department, 7 January 1999). Then in a skeleton argument prepared in January 2000 (which was before Simon Brown LJ) Mr Ebert stated that he:
"... would ask the Honourable Court
(1) to strike out the Notice of Motion in accordance to Part 3.4 CPR 1999 as it does not disclose any ground and/or reasonable ground.
(2) for a declaration that the Motion Application was an abuse of the process to put the Respondent under Civil arrest to cover up a `Conspiracy to defraud'
(3) for an Order of public apology and damages to be assessed of malicious prosecution.
(4) for a Cost Order on Indemnity basis for a fixed anoint as the Court thinks fit.'
Next, in a written argument prepared for the hearing before us which as I have said commenced on 2 May 2000, he stated:
"It appears clear from this skeleton [sc. a second supplementary skeleton argument supplied by Mr Jay] that an admission is made that the Notice of Motion is an abuse of the process. Moreover, it is outrageous and scandalous for a request to be made by the AG who is supposed to be acting in public interest to ask the court for assistance to ignore and override the law and the statutory rights of a member of the public with the intention to assist the cover up of a fraud and perjury."
In this same written argument, Mr Ebert made a number of other points. In support of his claim that the application against him was an abuse of process, he referred to the most unhappy fact that Mr Glendinning has died; and relied on the impossibility of cross-examining him to support his allegation of abuse. In his oral argument before us, he went, I think, somewhat further: he submitted that because Mr Glendinning is dead, there is no evidence before the court to support the Attorney's application. In his oral submissions, moreover, he was entirely ready to accuse Mr Jay of "deliberate malice" towards him. The vicious unreality of all these suggestions was wholly lost on him.
46 Mr Ebert has furnished a number of further written submissions and materials to the court since the hearing was concluded and we reserved our judgments. These travel over all the old ground relating to the Midland Bank's judgment and the assignment. One asserts: "Mr Justice Neuberger is the problem in this case". But any objective appraisal of this awful, sorry history would pay the utmost tribute to Neuberger J's objectivity and patience. A further written submission enclosed two more applications to the court, supported by many, many pages of paperwork. But in essence it is all the same story as before.
47 Mr Ebert's responses to the Attorney's application offer powerful confirmation of his obsessive and deluded state of mind.
Conclusion on the Merits
48 Mr Ebert is wholly obsessed with his complaints about the events surrounding the Midland Bank's judgment, the assignment, and the earlier history relating to Europride. One can readily see how, initially, he felt he had been unjustly treated: his co-guarantor Mr Morris Wolff had escaped all liability to the Midland Bank because of his brother's intervention. But the legality of the arrangements relating to that, and in particular to the assignment of the bank's judgment debt to Mr Ralph Wolff, were decided long ago; indeed they have been decided many times. Mr Ebert's repeated attempts to open it up all over again constitute, in my view, a very extreme instance of vexatious litigation.
49 Mr Ebert's obsessions have cut him away from reality, and he is, unfortunately, entirely unable to appreciate the hopelessness of any further process he may commence to challenge the judgment, assignment, or bankruptcy order; to say nothing of his past actions. That is a misfortune, for it means that he will leave this court with an aggravated sense of injustice; but it is a melancholy fact that that is usually the case with truly vexatious litigants. This case, however, is to my mind extreme by reason of two factors. The first is the sheer scale of Mr Ebert's persistence. The Treasury Solicitor on the Attorney's behalf despite best efforts has been unable to log or record all the applications which Mr Ebert has made. By now it may be into the hundreds. The second is that although Mr Ebert is entirely deluded as to the merits of all the kaleidoscopic features of his case, he has in my judgment acted not only misguidedly, but - being the intelligent and resourceful man which he undoubtedly is - also maliciously, in some dimensions of this wretched tale. His applications to commit Mr Rabinowicz and Mr Osuntokun are one instance. His assertion of forgery of the bank statement when it was resurrected before Laddie J in January 2000 is another: he knew perfectly well that the accusation had been gone into by Rimer J, armed with the original document.
50 Mr Ebert's vexatious proceedings have in my judgment been very damaging to the public interest: quite aside from the oppression they have inflicted on his adversaries. It is wholly lamentable that Neuberger J should have been required to spend what must have amounted to hundreds of hours of working time preparing for and dealing with Mr Ebert's grotesquely unmeritorious applications. The point is not merely one of sympathy for the particular judge (though if I may say so I regard Neuberger J's sure and certain patience in this whole saga as wholly admirable). Judges have to hear and decide whatever cases are properly listed before them; and, as Laddie J has pointed out, given that Mr Ebert was going to make these applications it was desirable, however burdensome, that they be consistently listed before Neuberger J who from an early stage had a close acquaintance with the detailed facts. Had they been listed randomly before different judges, the waste of time would surely have been all the greater. 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. It is trite but true that a s.42 order is draconian. That is why the court examines cases like this with particular scrutiny. In this instance, the public interest urgently requires that Mr Ebert be comprehensively barred from the doors of the civil courts. I think, moreover, that this conclusion is reinforced, though on the facts any reinforcement is certainly unnecessary, by the terms of the overriding objective stated in CPR 1.
Do the Grepe v Loam Orders Afford Sufficient Protection?
51 While bitterly contesting the merits of the Attorney's application in any event, Mr Ebert also I think desired to submit - I shall certainly treat him as having submitted - that in any event the Grepe v Loam orders were sufficient to protect any individuals affected by litigation or applications which he might bring or make, which might be thought to be vexatious or abusive.
52 The relation between the common law Grepe v Loam jurisdiction and the statutory s.42 jurisdiction is obviously important, and indeed was the subject of the greater part of the Master of the Rolls' reasoning in Ebert v Venvil [1999] 3 WLR 670. But at this stage I am concerned not with the reach of Grepe v Loam in principle, but simply with the question whether, given the numerous Grepe v Loam orders which are extant in this case, a s.42 order is necessary in the public interest.
53 I entertain no doubt but that such an order is urgently necessary. First, if a s.42 order is made, this court's judgment will I hope provide a compendious overview of the whole of the relevant litigation history, to which any judge dealing with an application under s.42(1A)(a) will be able to refer. (Compendious, but not I fear all-inclusive: as I have said, not all of Mr Ebert's applications have been traced, and in dealing with the seven sets of proceedings laid before the court by the Attorney I have, in order to keep this judgment's length within reasonable bounds, from time to time omitted reference to insignificant procedural steps; and there may well be applications I have inadvertently missed.) Secondly, there is no appeal against the first instance decision under s.42(3): see s.42(4). Thirdly, any argument as to whether a particular fresh process is or is not caught by an extant Grepe v Loam order is avoided, since the s.42 order is comprehensive. I attach no little importance to this aspect. If Mr Ebert's obsession deepens, as having regard to the history I fear it may, there is every possibility that he may seek to formulate proceedings in such a way as to raise at any rate an argument to the effect that he does not need Grepe v Loam leave. Given the reach of the extant Grepe v Loam orders, that may be no small hill to climb; but the point is that in the public interest the court should not be vexed with it at all. Fourthly, and this is connected with the third point, if the judge is for any reason in the least doubt whether Mr Ebert should be allowed to pursue an application, it should no longer be for Mr Ebert's adversaries to mount argument to dispel the doubt, as happened before Laddie and Neuberger JJ on 6 March 2000, when the Midland Bank, Mr Rabinowicz, and Mr Ralph Wolff were all represented by counsel. A s.42 order is made in the public interest; it would therefore be for the Attorney, who moved for the order, to assist the court if for any reason the judge felt that he required submissions to test an application by Mr Ebert under s.42(3).
54 I have considered whether there exists any basis for making an order limited in time, under s.42(2). As a matter of history such orders have been made very rarely, and by reason of the presence of some special feature or features in the case. But everything in this case points to the need for a civil proceedings order unlimited in time. That is the order I would make.
Silber J:
55 I respectfully agree but just want to add a few words explaining why the civil proceedings order should be of unlimited duration.
Under Section 42(2) of the Supreme Court Act 1981 (as amended), a civil proceedings order may be of limited duration and so it is necessary to consider whether to make an order for a limited time period. We were told of two cases in which this Court has made such orders.
56 In Attorney -General v. Price [1997] COD 250, it was considered that an appropriate balance had to be struck between the need to bring to an end the existing vexatious use of proceedings and the desirability of removing the restriction from a respondent when it would no longer be likely to serve any very useful purpose. On the facts of that case, the court decided that the civil proceedings order should last for 15 years against the 53 year old respondent, who had brought numerous vexatious proceedings against, inter alia, an organisation with whom he had previously had business contacts.
57 In Attorney-General v. Yeo (CO-3736/99-8 Dec. 1999), a civil proceedings order was made against a defendant who had brought numerous proceedings, inter alia, challenging the will of his former lover and seeking to prevent the sale of his lover's former house. The court took the view that the respondent acted had vexatiously in bringing three actions in 1996 and 1997 and that the trustees of the will had to be protected from further action being brought against them. In determining the length of the civil proceedings order, the court in that case considered that it was not the worse case of vexatious litigation and that an order for 10 years would cause the respondent to cease wasting public resources while giving him the opportunity to recover from the anger which he had plainly felt as a result of being excluded under the will of his lover.
58 It seems clear that a civil proceedings order should cease when it would no longer serve any useful purpose. In determining if that time might come in a particular case, the court must consider all the circumstances of the case including how long it would be before a respondent would cease wasting public resources and such an exercise entails considering the past and likely future approach of the respondent to litigation, and I now embark upon it and will mention some salient features.
59 First, as until now my Lord the respondent has demonstrated a determination to keep making vexatious and unjustified claims and this determination seems to increase rather than diminish when his applications fail. As Simon Brown LJ., said in paragraph 11 of his judgment of 31 January 2000, Mr. Ebert's conduct "involves innumerable and apparently wild and hopeless applications which constantly attempt to litigate all the main issues which have long since been resolved, apparently decisively against [him]". I agree with Laws LJ. that Mr. Ebert's conduct in seeking repeatedly to relitigate points " a very extreme instance of vexatious litigation". The existence of the Grepe v. Loam order has had no deterrent effect as there have been numerous applications made since these orders were granted as we have already explained.
60 Second it seems quite clear from having seen and heard the respondent, that he will continue to make applications as he still considers himself an aggrieved party who has been unfairly treated by the judicial system. I do not believe that when he is discharged from bankruptcy that this will affect this approach. He clearly regards the behaviour of the Wolff brothers and others acting for them as so outrageous that he must continue to use the courts for redress. He has shown time after time that he is quite unable to accept defeats or the clear and cogent reasoning of Neuberger J. showing why his applications are misconceived. I believe that he is likely to continue to bring vexatious actions for many years to come unless restrained by this court, even though the allegations in those actions have been clearly and rightly rejected on many occasions in the past. He has ignored and will continue to ignore clear judicial warnings about the failings of his case. I see no prospect of this changing in the future and repeated experience has shown that each defeat in the courts will act as an incentive to further litigation raising the same or similar issues.
61 Thirdly these applications by the respondent have taken and will take up a great deal of the time of the court in the absence of a civil proceedings order. It is obvious that Neuberger J. even with the Grepe v. Loam Orders has had to spend literally hundreds of hours dealing with these applications; in addition the Court of Appeal has had to consider many applications for permission to appeal from his inevitable defeats in front of the judges of first instance. This is a totally unjustified use of judicial time. This court has to take note of the demands of other users of the courts whose legitimate and justifiable claims are being postponed because of the time taken up dealing with the vexatious applications of the respondent, both at first instance and when seeking permission to appeal.
62 Fourth, I am conscious of the overriding objectives of the Civil Procedure Rules 1998 under rule 1.1 of the these Rules it is pointed out that the overriding objective is "enabling the courts to deal with cases justly" (sub. - rule 1) and this includes so far as is practicable "allotting to [any particular case] an appropriate share of the court's resources, while taking into account the need to allot resources to other cases". (sub. - rule 2(e)). Although those objectives are concerned with the interpretation of the CPR, they are of importance in deciding how to consider the duration of a civil procedure order.
I am very conscious of how serious a matter it is to impede the right of the citizen to have access to the court. As I have explained the effect of a civil proceedings order is to require the consent of the court before fresh proceedings can be commenced on existing proceedings pursued. This requirement leads to delay and additional work and expense for the person subject to the order. Nevertheless it does not prevent actions being commenced after permission has been granted (see Practice Direction - Striking out a Statement of Case paragraph 7). If permission is refused, the person subject to the civil proceedings order cannot appeal (Section 42(4) of the 1981 Act and so he is deprived of an important and basic right.
63 Against all these points I bear in mind the consequences that would be suffered by the respondent while a civil procedure order is in force against him. The respondent has said that he is a professional landlord and a civil proceedings order would cause serious difficulties for him. I bear this in mind and appreciate how serious a matter it is to deprive a citizen of his unfettered right of access to the court. Nevertheless he would still be able to litigate but would need the consent of a High Court Judge who would merely need to be satisfied under section 42(3) of the Supreme Court Act that "the proposed proceedings or application are not an abuse of process of the court in question and that there are reasonable grounds for the proceedings or application". This is not a high threshold.
64 Nevertheless I cannot forget the respondent's conduct until now and in particular his continuing and remorseless determination to continue to seek redress against the Wolf brothers and those connected with his bankruptcy. This case is uniquely strong in the light of the respondent's burning determination to continue with these claims in the face of many defeats in the courts and see no reason why this will not continue. As Laws LJ has just said this is a very extreme instance of extreme litigation and so I believe that this is precisely the type of case in which there should not be an order of limited duration. In those circumstances I believe that the civil proceedings order should be of permanent duration.
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LORD JUSTICE LAWS: Then the court makes the civil proceedings order unlimited in time, as sought by the Attorney General.
There are copies of my judgment in draft which are now available to be distributed on the strict understanding that they are unrevised drafts only, and there will, of course, be a perfected version in due course which will have been corrected by me.
Ms Ayling, I do not imagine there is any other order that you seek.
MS AYLING: There are a couple of matters I wish to raise before the court this morning. The first is that the respondent appears to have changed course over the last two or three weeks, in that he has begun to issue criminal proceedings against some of the people involved in the course of the action so far, rather than civil proceedings.
Clearly, it is too late at this stage to ask the court to make a criminal proceedings order, but I would ask that the court suggest to Mr Ebert that he consider his position on continuing those criminal proceedings.
LORD JUSTICE LAWS: We know nothing about those, Ms Ayling, and there is no application before us in relation to them.
MS AYLING: I simply wish to bring them to the attention of the court this morning.
LORD JUSTICE LAWS: The respondent hears what you have had to say.
MS AYLING: There is one further point. Those criminal proceedings have been brought not just in the name of Mr Ebert himself, but also in the name of his wife and, I believe, his son. Therefore, I would ask that the section 42 Civil Proceedings order be extended to bringing or continuing any civil action either by himself or through third parties.
LORD JUSTICE LAWS: Has Mr Ebert had any notice of that application? Is there any affidavit supporting it? Is there any summons before this court seeking that relief?
MS AYLING: My Lord, no.
LORD JUSTICE LAWS: I am very surprised that the Attorney thinks fit to ask for it on the hoof.
MS AYLING: This was brought to our attention very late last night --
LORD JUSTICE LAWS: I follow. I far from wish to diminish the difficulties that anyone may have if that sort of thing is being done, but, not least in the context of section 42, it is essential that we proceed properly in accordance with the rules. If an amendment, or a widening of the section 42 order is sought because of distinct evidence not before us in May, at the moment, I see no escape from that having to be to done in the ordinary way.
MS AYLING: I am grateful, my Lord. I will consider our position.
LORD JUSTICE LAWS: Thank you.
THE LITIGANT: My Lord, I would first of all ask the court for leave to appeal. I would also ask, if possible, if leave is given or refused to allow me six weeks to put in the appeal. The reason is very simple: since yesterday at 1 o'clock, I am homeless. As a result of the homelessness, my son and my wife became also homeless and they -- not they, the police, last night at half past 11 made criminal charges against a few people, and that is the reason they want to stop my wife and son also, as I understand --
LORD JUSTICE LAWS: That is another matter. We are not concerned --
THE LITIGANT: The point is the timing, my Lord. I do not know if, secondly, I should be able to get, and pick-up from the court office, the judgment because I have no home address.
LORD JUSTICE LAWS: You will be able to have an unrevised copy of the judgment now.
MR JUSTICE SILBER: You will also be able to have an unrevised version of mine probably later this morning.
THE LITIGANT: I am very thankful. I would like to come and pick it up on Monday, and also the order because I have no address where it should be sent. I am on the street. If the court does or does not give me leave I need an extension of time to come to the Court of Appeal because I am on the street now so I might miss the 14 days especially under the new rules. I have 14 days to do it.
I believe I am entitled to go to appeal. It is not the issue, a lot of things happened --
LORD JUSTICE LAWS: What you are asking for is permission to appeal and/or, in the alternative, a stay of this order for six weeks until you can get to the Court of Appeal. That, I think, is what you are asking for.
THE LITIGANT: No, the order is made, my Lord. The time to make the appeal application --
LORD JUSTICE LAWS: You want an extension of time within which to appeal?
THE LITIGANT: Exactly.
LORD JUSTICE LAWS: Very well, I understand.
THE LITIGANT: I am on the street now. That is why I am asking. That is not the issue now, but it is an issue. The basis has been, yesterday, signed and agreed that the whole scenario was a fraud. This is the ground that I am asking for appeal, all the parties have signed yesterday admitting fraud and everything. Just for your information.
LORD JUSTICE LAWS: I see.
THE LITIGANT: That is the reason I am asking for leave.
LORD JUSTICE LAWS: Thank you.
THE LITIGANT: Secondly, against each and every one that applied to the Attorney General to make these applications are summonses issued by Magistrates' Court.
LORD JUSTICE LAWS: That is not before us, Mr Ebert --
THE LITIGANT: I know --
LORD JUSTICE LAWS: Please do not interrupt me. I am not going to listen to you in relation to criminal proceedings which are not before this court. I understand your application for permission to appeal and an extension of time. Is there anything else you would wish to say strictly in support of those applications?
THE LITIGANT: Just that the court should allow me leave to appeal because there are summons to this issue --
LORD JUSTICE LAWS: Thank you very much.
We will refuse permission to appeal. Anything else is for the Court of Appeal. We will not grant an extension of time within which to seek that court's permission. Thank you very much.
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