England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th May 2004

Lord Justice Auld :

1. The Attorney General, by an application made on 12^th November 2003, applies for a civil proceedings order against Mr John Pepin pursuant to section 42 of the Supreme Court Act 1981.
2. The Attorney General's case against Mr Pepin is that he has habitually and persistently and without reasonable grounds instituted vexatious legal proceedings against a variety of defendants, his litigation exhibiting two main traits: 1) serial re-litigation of the same issue, namely 10 sets of proceedings 8 of which arose out of the essentially the same facts; and 2) conduct of each of those proceedings in a persistently aggressive manner.

The Facts

3. In more detail. The facts giving rise to all that litigation are as follows. In 1997 a teacher at Sydenham Girls' School complained to the Metropolitan Police that messages had been received at the School seeking pen pals and asking for confidential information from pupils about access to pornography on the internet. Inquiries established that the message had come from Mr Pepin's internet address. As a result the Metropolitan Police obtained a warrant to search Mr Pepin's home, which they executed on 9^th September 1997 (the subject of claim 2 and in part claim 7) They found nothing on his computer; in response to their questions, Mr Pepin told them that he had recently "wiped", that is, eradicated, part of the material on, its hard drive. His explanation for the many messages sent from his internet address - which were under various aliases – was that in the summer of that year he had allowed his friends' children and their friends to use the computer to obtain access to the internet. He said that many of the messages to the school from his internet address were from them. As to the messages inviting children to state whether they had accidentally come across pornography while surfing the internet, he said that he had been looking for data for an article he had intended to write.
4. In the Autumn of 1997 Mrs Anne Turner, the head-teacher of Woking High School received a telephone call from Mr Pepin, man calling himself Andrew Cranstone. He gave her details of bullying at the school that he said he wanted investigated. He made other similar calls, and Mrs Turner and her deputy head-teacher met him. He said that he had no children at the school and no direct connection with it, but repeated the allegations, while declining to reveal the source of his information. Enquiries by the School substantiated some, but not all, of the allegations. Mr Pepin subsequently explained that he had been informed by a friend's son of the bullying and had reported that information to Mrs Turner using a pseudonym to protect the identity of his friend's son. Mrs Turner discussed the matter with PC Watts, the Community Liaison Officer, because she was concerned about the refusal of the man she knew as Mr Cranstone, to tell her the source of his information. P C Watts told her that the police knew nothing about a Mr Cranstone.
5. Mr Pepin contacted Mrs Turner again in early 1998 – 4^th February 1998. He told that on the previous evening he had paid the train and taxi fares of two female pupils who had run away from a school theatre trip; Mr Pepin later acknowledged that he had done that, after speaking to the girls' parents, following a telephone call from the girls saying that they had been bullied. Mrs Turner discussed the matter with PC Watts and with the two pupils concerned, and she learned from those discussions that Mr Cranstone was Mr Pepin. The pupils told her that he was a friend of one of their mothers and used pseudonyms because his life was in danger as a result of his business activities abroad. Mrs Turner spoke to Mr Watts again, and he sent her a confidential fax containing information from the file maintained on him by the Criminal Intelligence Service (the subject of most of his 10 claims).
6. Mr Pepin came to learn about PC Watts' fax to Mrs. Turner and took exception to it. His concern about that also figures in one way or another in most of the 10 actions he instituted over the ensuring 3 or 4 years.
7. He brought his first claim in December 1998 against PC Watts and the Chief Constable of Surrey. In it he alleged that PC Watts, in passing information about him held by the Criminal Intelligence Service, breached the Data Protection Act 1998. The defence was one of lawful disclosure, coupled with an acknowledgment of an initial denial of the disclosure itself, and the content of the disclosure was scheduled to the defence pleadings. Over a period of a year, he amended and served no less than nine amended and further amended sets of particulars of claim, administered three interrogatories and one request for further and better particulars of defence. In February 2001 when a date for trial had been fixed, he served a witness statement in support of an application to vacate the date to enable him to complete an application for legal aid and inspect documents disclosed at the end of 2000. In September 2001 there was a hearing to consider the disclosure he had requested. He then seems to have taken no steps to bring this matter before the court until September 2003, when he applied for a case management hearing. That hearing took place on 10^th May 2004, at which a District Judge gave directions for trial towards the end of this year. He also gave directions as to evidence and further disclosure by the Chief Constable, and ordered him to make a contribution to Mr Pepin's costs of the application. It should be noted that the Attorney General does not maintain that this, the first of the claims the subject of this application, was vexatiously issued, but that it was vexatiously conducted.
8. Mr Pepin commenced his second action just after he began the first, – in January 1999. It was a claim against the Commissioner of the Metropolitan Police alleging that the search warrant authorising the police search of his house in September 1997 had been maliciously procured and executed. Just as in the first action, but this time over a period of two years, he peppered his interlocutory conduct of the matter by a variety of unsuccessful applications and notices, followed by a failure at the last minute to stay the course to trial. There were two sets of interrogatories, four notices to admit facts, a prolix and oppressive request for further and better particulars of defence, and three Part 18 requests for further information. The action was stayed twice pending his discharge of costs orders made against him at interlocutory hearings. After all that, he sought in early April 2002, about three weeks before the date fixed for trial, to have it adjourned because, he maintained, leading counsel for the Commission was unfit to conduct the defence, an application that the judge refused. He then attended on the first day of trial without his documents, again seeking an adjournment, which the Judge refused. And on the second day he did not attend at all, sending a letter purportedly from a doctor stating that he suffered from agitated depression and was unfit to attend and again asking for an adjournment. The judge was of the view that the application was not made in good faith, but as part of a course of conduct to frustrate the trial. He refused the sought adjournment and dismissed the claim. In January 2003 Mr Pepin was refused permission by the Court of Appeal to appeal that dismissal.
9. One might have thought that that would have been the end of that action, but nearly a year later, in December 2003, Mr Pepin was back before the Court of Appeal seeking permission to challenge an order of Henriques J in September of that year refusing to allow him to appeal against an order in the proceedings over a year before on 31^st July 2002, possibly to do with costs. Laws LJ, refusing him permission, was so concerned about his conduct that he included in his order of refusal a direction that there should be another hearing in front of two Lords Justices at which the Court would consider whether to make an order on its own initiative in some form to prohibit or control Mr Pepin's applications to the Court or whether any other action should be taken. The Court has now set 22^nd June 2004 as the date for considering that matter.
10. Mr Pepin instituted his third action at about the same as he had begun the second, in February 1999. It was a further claim against PC Watts and the Chief Constable of Surrey, this time an allegation for defamation, alleging malice in response to a defence of qualified privilege, in respect of PC Watts' faxed information to Mrs. Turner – essentially an attempt to re-litigate the subject matter of his first claim. As before, Mr Pepin served a number of interrogatories. It ended in failure, taking three and half years to do so, via a Master's strike-out, an unsuccessful attempt to set aside the strike-out, an unsuccessful application to the Court of Appeal to appeal that order, and two further unsuccessful permission applications to the Court of Appeal to argue points of costs.
11. In the course of the third claim, Mr Pepin, in March 2000 issued a fourth, one of only two of the ten not aimed one way or another at PC Watts, alleging defamation by a Mr Taylor, a teacher, in a number messages posted on internet news groups. That was met in turn by a counterclaim from Mr Taylor that Mr Pepin had defamed him by posting an untrue allegation on an internet newsgroup, namely that he had been "in prison more time than out". That litigation ended in August 2002 with the Court of Appeal upholding an order by Gray J striking out the major part of Mr Pepin's claim and giving Mr Taylor summary judgment on his counterclaim. The matter was finally disposed of on 25^th March 2003 by a consent order before a Deputy District Judge striking out the entirety of the claim and ordering that the counter- claim be discontinued with no orders for costs and the giving of cross-undertakings. It is apparent from the documentation before us that Mr Taylor had exhausted all his finances in defending the wholly unfounded claim of Mr Pepin and had neither the means nor the stomach to continue the remains of the litigation on Mr Pepin's claim or even to enforce the summary judgment on his counterclaim.
12. In his fifth action, begun in December 2001, Mr Pepin turned his attention back to PC Watts and his fax to Mrs Turner, this time alleging that he had committed the tort of misfeasance in public office in sending it and in initially denying that he had done so. This was a further attempt to re-litigate the subject matter of claims 1 and 3. This proceeding dragged on inconclusively for over two years following a wrangle, in which Mr Pepin twice unsuccessfully invoked the Court of Appeal, over where it should be tried, over costs and over a very late application by him to join another police officer as a co-defendant. The current position is that on 5^th May 2004, Crane J granted Mr Pepin permission to appeal an order of a Master Yoxall of 17th February 2004 striking out his claim.
13. It may be that the fifth action ended inconclusively because Mr Pepin felt he did not have sufficient information to press forward with it, because, at an early stage of it, he began a sixth action, again against PC Watts and the Chief Constable of Surrey, seeking pre-action disclosure of the identity of a person alleged to have deleted data from a police computer, a claim that was adjourned generally in mid 2002.
14. In his seventh action, begun at about the same time – mid 2002 – Mr Pepin collected together a number of allegations similar to those in his second action, that against the Metropolitan Police Commissioner, in respect of the search warrant executed at his home in September 1997, this time alleged directly against one of the officers involved in the search, DC Storey. He alleged misfeasance in public office, trespass, false imprisonment and breach of the Data Protection Act 1998. Within a comparatively short time - so far as these matters go - his claim was, in March 2003, struck out as an abuse of process in seeking to re-litigate an earlier claim.
15. The eighth matter was a claim in October 2002 that a police officer, PS Moxon, had posted defamatory messages about him on an internet forum, an allegation that prompted a counterclaim of harassment from that officer. In December 2002 Mr Pepin served a defence to counterclaim and issued three witness summonses. But then little seems to have happened until 10^th May of this year when a District Judge dismissed PS Moxon's application to strike out Mr Pepin's claim, and ordered trial of the action.
16. The ninth action, commenced by Mr Pepin at about the same time as the eighth, that is, in October 2002, was again against the Chief Constable of Surrey and again about data protection. He complained that the Chief Constable had deliberately failed to deal with his request for data subject access made under the 1998 Act. The defence was that, over the course of the previous litigation between the parties, Mr Pepin had received disclosure of all the documents to which he could possibly be entitled under the Act and that, in any event, any breach by the Chief Constable could not have caused him any loss. The matter seemingly ground to a halt in March 2003 with Mr Pepin unsuccessfully appealing a District Judge's direction that he give standard disclosure by list. On 10^th May this year a District Judge adjourned the Chief Constable's application to strike-out to a date in August.
17. At the end of February 2003 Mr Pepin issued his tenth action, his fifth, against the Chief Constable of Surrey, this time claiming misfeasance in public office and/or breach of the Human Rights Act 1998 in failing properly to investigate the conduct of PC Watts and Chief Inspector Boon. In April 2003 a District Judge adjourned a defence application generally with liberty to restore. And there those proceedings rested until 10^th May this year when a District Judge adjourned to August the Chief Constable's application to strike-out this claim.
18. There have been a number of recent developments in the underlying grievances of Mr Pepin against the Surrey Police, in particular, about PC Watts' fax to Mrs Turner six years ago and failure to disclose to a senior officer, DCI Boon, what he had done, and also against PC Moxon. On 30^th October 2003 Mr Pepin complained about those matters to the Police Complaints Authority.
19. As to PC Watts, in December 2003, the Authority, by way of review of an earlier decision prompted by an unsuccessful application of Mr Pepin for leave to claim judicial review, were critical of PC Watts' conduct, but were of the view that it could be dealt with by way of advice.
20. As to PC Moxon, in about December 2003 Mr Pepin made an unsuccessful application for permission to claim judicial review of a decision in November 2003 of the Authority about the messages posted by PS Moxon, the subject of claim 8. The Authority had expressed the view that it was undesirable for a police officer to participate in such a dialogue on the internet and that it had been "imprudent" of PS Moxon to have done so, but that no action beyond advice to that effect was required.
21. The Court has also been informed of an application made by Mr Pepin on 28^th April 2004 for permission to claim judicial review against the Information Commissioner in respect of his decision, in response to his, Mr Pepin's, renewed complaint in January of this year that he should investigate the Surrey Police's information to him in 1998 that PC Watts had not disclosed his CIS record to Mrs Turner.
22. So, quite apart from the recent flurry of activity by Mr Pepin since the Attorney General lodged this application, of the 10 actions the subject of this application, 6 (claims 1, 3, 5, 6, 9 and 10) lie against police authorities and individual police officers arising out of the same subject matter – PC Watts' disclosure to Mrs Turner of the CIS Report; 5 (claims 3,5,6,9 and 10) amount to re-litigation of claim 1; claim 7 amounts to re-litigation of claim 2 – the search warrant; and 4 (claims 2, 3, 4 and 7) have been finally struck out.

The case for the Attorney General

23. Mr James Maxwell-Scott, on behalf of the Attorney General, submitted that Mr Pepin's institution in the last three or four years of these various proceedings has been a series of unsuccessful attempts by him to re-litigate the same underlying set of facts – a classic case of persistent and vexatious conduct. And the two claims, claims 4 and 8, arising out of different circumstances were, submitted Mr Maxwell Scott equally without merit and vexatious. The vexatiousness lies, he submitted, not only in the repetition of essentially the same claims dressed up in different legal forms, but in the aggressive interlocutory manner in which he has conducted them, in pursuing every hopeless avenue of appeal however peripheral, and, after causing all that trouble, largely letting the claims go quiet. This pattern, said Mr Maxwell-Scott, suggested a desire on the part of Mr Pepin to harass and oppress the defendants to his suits rather than any expectation or intention to advance his claim. An illustration of that, he suggested was Mr Pepin's second action, the only one that reached the stage of trial, which, as the trial judge found, he deliberately and in bad faith did not attend. He also drew attention to Laws LJ's recent observation in December 2003, when Mr Pepin attempted yet again to resuscitate that claim, that matters had got so bad the Court should consider making an order on its own initiative to prohibit or control his litigiousness.
24. Mr Maxwell-Scott added that, although Mr Pepin has recently sought to revive some of his claims and has apparently obtained legal representation to do so on a conditional fee basis, he has in the past tended to litigate in person. His continuing appetite for that activity is, he said, illustrated by his recent institution of further proceedings in person, all arising out of the same basic facts giving rise to those the subject of the application. Without a section 42 order, he submitted, there would be nothing to prevent Mr Pepin from continuing to feed that appetite. As to draconian nature of such an order, he pointed out that it would simply regulate his litigious behaviour by requiring him to obtain permission to pursue any individual claim and thus prevent him from continuing to harass others and waste the time of the courts by vexatious conduct. He added that, if, as Mr Pepin maintains, he has valid claims, including his first claim against the Surrey Police, he would no doubt be granted permission to pursue them on a case-by-case basis.

The case for Mr Pepin

25. In his defence to this application, Mr Pepin concedes that he has litigated persistently and that he has, at times, been a poor litigant. He also concedes that the genesis of most of his actions is the same set of facts, namely the police search of his home and PC Watts' disclosure to Mrs Turner of information from his record held by the Criminal Investigation Service. However, he maintains that he has not acted without reasonable grounds or been a vexatious litigant because: 1) the recent developments in a number of his actions to which I have referred tend to show that his grievances may yet prove to be well-founded; 2) the "emergence" of information about PC Watts' improper conduct in respect of the CIS Report, which Mr Pepin claims to derive from the Police Complaints Authority's recently expressed criticisms of that conduct; 3) "confirmation" from the recent Police Complaints Authority Report that PS Moxon had posted defamatory messages about him on a web-site; and 4) advice from experienced counsel that he has a valid claim for damages against the Chief Constable of Surrey for the wrongful disclosure by PC Watts of material to Mrs Turner.
26. Mr Martin Soorjoo, on Mr Pepin's behalf, has urged the Court, in view of the arguable – and yet-to be determined – merit of his grievances, not to find him a vexatious, but simply a poor litigant, and not to prejudice his chance to vindicate himself now at the 11^th hour by making a civil proceedings order against him. He maintained that such order would be unjustified and certainly disproportionate when Mr Pepin is about to resume his claims in a responsible manner with the benefit of legal representation, apparently arranged or to be arranged on a conditional fee basis.
27. Mr Soorjoo acknowledged that, in accordance with Attorney General v. Jones [1990] 1 WLR 859, it is not open to the Court on an application under section 42 to challenge the claims in a number of the underlying proceedings. However, he submitted that where, as here, claims in a number of the proceedings have yet to be determined, and in respect of which Mr Pepin now has more information than before, it is necessary for the Court to consider both pending as well as spent litigation when considering whether the requirements of the section are met. This is particularly so, he emphasised, in relation to the first claim, the institution of which the Attorney General does not maintain was vexatious and which is now to be tried towards the end of this year.
28. Mr Soorjoo submitted that, even if the Court is of the view that Mr Pepin's litigation over the last few years has been vexatious within the meaning of section 42, the Court should, in the discretion given to it by that provision, not make an order. Indeed, he suggested in the light of the recent decision of the Court of Appeal in Bhamjee v. Forsdick [2004] 1 WLR 88, setting out the range of options open to a court to control its own procedures, that the Court, on a first consideration of such conduct, cannot properly exercise its discretion to make an order under section 42. If it considers some restraint is necessary, it must, he submitted, opt for one of the lesser options, leaving the draconian remedy of a section 42 order only for future consideration and as a solution of last resort if the vexatious conduct continues. He relied for the purpose of that submission on the following passages in paragraphs 36 and 54 of the judgment of the Court given by Lord Phillip of Worth Matravers MR:

"36. Quite apart from the familiar remedies available under CPR 3.4 there are now at least three techniques available to a court when concerned with actions or applications which are utterly devoid of merit (i) It may make an order striking out the action or application of its own initiative under CPR 3.3; (ii) It may make a Grepe v. Loam order … to the effect that no further applications in that action may be issued without the permission of the court; (iii) It may make an extended Grepe v. Loam order so that the range of activities covered by the order is extended to embrace the institution of separate actions concerned with the same subject matter. If all these steps prove to be of no avail, then resort has to be made to the more severe restraint embodied in a section 42 order."

"54. In conclusion, the nuisance described in Bhamjee v. Forsdick [2003] EWCA Civ 799 is now such that we consider that the time has come when the courts should make use of their inherent jurisdiction to control it. Strasbourgh jurisprudence requires the responses of the courts to be proportionate, and we consider the two-year civil restraint orders of the type we have described in this judgment represent the kind of step-by-step process approved by Strasbourg jurisprudence which may ultimately end, if the vexatious litigant's conduct is not only persistent but also habitual, in the making of a long term section 42 order. The inherent jurisdiction of the court has always existed side by side with its rule-derived jurisdiction (see now CPR r.3.1(1)), and the rules committees will no doubt wish to consider in due course whether it would be desirable to exercise this rule-making powers in this regard. All we are doing in this judgment is to provide a modern incarnation of the protection described by Bowen LJ in Willis v. Earl Beauchamp [1886] 11 PD 59,63 in these words:

'the rules … do not deprive the court in any way of the inherent power which every court has to prevent the abuse of legal machinery which would occur, if for no possible benefit the defendants are to be dragged through litigation which must be long and expensive.'

Today it is also the resources of the courts themselves that require

protection."

29. Mr Soorjoo also prayed in aid Strasbourg jurisprudence in support of the uncontroversial proposition, of which the Master of the Rolls' exposition of our law in Bhamjee is illustrative, namely that courts should not restrain access to their procedures in such a way as to impair the essence of the right sought to be enforced or as to be disproportionate in the means employed in pursuing the legitimate aim of proper administration of justice. However, he suggested, again in reliance on the Master of the Rolls's words in Bhamjee, that it would be disproportionate and hence in violation of article 6, for the Court to make a section 42 order unless there had been at least one previous disposal of lesser sort in other proceedings.

Conclusion

30. Before the Court can make an order under section 42 it must be satisfied that the defendant has "habitually and persistently and without any reasonable ground" instituted vexatious proceeding or made vexatious applications in any proceedings. In Attorney General v. Barker [2001] 1 FLR 759, QBD, CA, Lord Bingham of Cornhill CJ set out what he described as the "hallmarks" of the terms "vexatious proceedings" and "habitually and persistently". As to "vexatious proceedings", he said at 764C-D:

"… The hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process."

31. In setting out that "hallmark" of a vexatious proceeding, it seems to me that Lord Bingham was, in fact, setting out three basic hallmarks, the second and third of which must be present, but, depending on the circumstances, not necessarily the first. That must follow from the expressly disjunctive provision in section 42(1)(b) for vexatious conduct of proceedings. Equally, I do not read the passage as an intended exhaustive list of hallmarks of such a proceeding. For it is well established that the Court must look at the whole history of the proceedings and may find them vexatious even though, in each case looked singly, there may have been reasonable grounds for the proceedings and the pleaded claim may disclose a cause of action; see Re Chaffers, ex p A-g (1897) 76 LT 351 and. Re Vernazza [1959] 2 All E R 200. QBD, affd [1960] 1 QB 197, CA.
32. As to the meaning "habitually and persistently", Lord Bingham said at 764G-H:

"… The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when any rational and objective assessment the time has come to stop."

33. The main thrust of Mr Pepin's defence to the Attorney General' s application is, as I have indicated, that he had and has genuine grievances about PC Watts' conduct and the other matters that have figured in his various claims, and that there is sufficient merit in them, despite the forensic history, to justify the Court in declining to make a civil proceedings order. Not only that, he invites the Court not to prejudice, by the making of such an order, his chances of pursuing the various matters open to him as a result of the recent court orders I have mentioned.
34. It is, as I have said, clear law that on such an application the Court may not reconsider the merits of the underlying actions; see Attorney General v. Jones. And the fact that one or more aspects of his complaints have since attracted criticism from a regulatory body cannot of itself be a basis for re-opening any of those matters. Nor is there any substance in Mr Pepin's claim that he has only recently learned of, or had confirmed, matters that support some of his claims, in particular in respect of PC Watts' conduct. He has known and had available the basic evidence in support of such matters for years now. And, as I have said, the vexatiousness of which the Attorney General complains in this application is not just in the repetitive attempts by Mr Pepin to re-litigate the same matters over a period of years. It is also about the aggressive and oppressive manner in which he has done so, to the great and unnecessary inconvenience and expense of the individuals and public bodies who have been his victims. Whatever, if any, merit he may have had, or have, in any of his underlying complaints is not a reasonable ground for conducting his claims in that manner. His conduct cannot, in my view, be dismissed as merely the poor efforts by a layman, they were and are clearly intended to be harassing and vexatious. In short, I am of the view that the Attorney General has made out his case that Mr Pepin has habitually and persistently and without reasonable ground (a) instituted vexatious legal proceedings against a number of defendants; and (b) has made vexatious applications within those proceedings.
35. The only question is whether, in the light of the circumstances and seriousness of that conduct and the matters Mr Martin Soorjoo has advanced on his behalf, the Court should, in the exercise of his discretion, not make a civil proceedings order.
36. As to the first of the fetters on that discretion suggested by Mr Soorjoo, that the remarks of the Master of the Rolls in paragraphs 36 and 54 of his judgment in Bhamjee (see paragraph 28 above) effectively prevent the Court from making an order under section 42 in the absence of an earlier lesser order, which has failed to have its intended effect, I do not consider that the Master of the Rolls so intended. He was simply (in a case which did not involve a section 42 application by the Attorney General) setting out a range of options available to courts of different jurisdictions and levels in the absence of a section 42 application having been made by the Attorney General to this Court. It was in that context that he used the words "step by step process" in paragraph 54, clearly envisaging, as his subsequent words in that paragraph demonstrate, a level of nuisance at such a stage of the process falling short of "the vexatious litigant's conduct …[being] not only persistent but also habitual" justifying the making of a section 42 order. As his concluding words in paragraph 54 indicate, the Court's prime concern was to ensure a step-by-step process by courts generally in the exercise of their own inherent power to control their procedure, not necessarily as a response to the Attorney General's invocation of the more draconian statutory power in section 42 when, in the exercise of his independent role under that provision, he considers that a litigant's abuse of the process has become so serious as to warrant it. He was not, as I read those paragraphs, prescribing a step-by-step process of previous disposals before this Court could consider, on an application by the Attorney General, the making, in its discretion of, a section 42 order.
37. Clearly, in any case coming before it on an application under section 42, the Court should consider first whether any of those lesser options are available and, if so, which, if any of them might be sufficient in justice to the defendant and effective in preventing future like conduct, before turning to the remedy sought by the Attorney General exercising his public and independent role under section 42. But, in my view, none of the lesser options is applicable to or, in my view, would be sufficient to remedy the mischief that needs remedying on the facts giving rise to this application, namely a multiplicity of claims arising out of more than one subject matter which, unless restrained or controlled, Mr Pepin clearly intends to pursue and, it seems from his recent activity, extend.
38. As to the second of Mr Soorjoo's suggested fetters (perhaps "restraints" is a better word in this context) on the discretion of the Court to make an order under section 42 - Strasbourg jurisprudence and proportionality - it adds little of substance to his first or to this Court's established common law interpretation of the provision. Although, as the Master of the Rolls observed in Bhamjee, at paragraph 24, a section 42 order is a draconian order, it is Convention compliant in the sense that it is capable of being made when the circumstances of the case demand it and it is proportionate to do so, regardless of whether there has been a previous less serious disposal; see Ebert v. Official Receiver [2001] EWCA Civ 340; [2002] 1 WLR 320, CA, per Buxton LJ, giving the judgement of the Court, at paras 7-13. Moreover, a mechanistic approach of the sort suggested by Mr Soorjoo would produce absurdity in those cases where, despite the high degree of vexatiousness of a litigant's conduct, his victims have not sought some form of alternative order, and various courts dealing with individual cases forming part of such conduct have not acted on their own initiative to do so. One of the strengths of section 42 proceedings is the machinery that it provides for a comprehensive, as well as independent, investigation by the Attorney General before deciding whether, overall, a litigant's conduct is so abusive of the processes of the courts that it merits an application under the provision. One of the matters that may be relevant in such an application is whether, in the past, courts have used, without success, other powers to curb a litigant's recourse to them, but such a history is not a pre-condition of the making of a section 42 order.
39. The question, therefore, is whether in the circumstances of this case it is necessary to achieve the protection for the administration of justice and those who may be unwillingly drawn into it by Mr Pepin's vexatious conduct, to restrain him from continuing it by a section 42 order. As I have said, none of the lesser options to which the Master of the Rolls expressly made reference in paragraph 36 in Bhamjee is appropriate. But that is not an exhaustive list – far from it as the Master of the Rolls emphasised in the immediately preceding paragraph of the judgment:

"35 … In what follows we must not be taken to be excluding the possibility that other forms of order may be made if the situation seems to demand it. For instance, it may on occasion be thought appropriate to direct that permission to make an application or to institute an action will only be considered if an advocate with higher court rights of audience considers there is merit init, or that the requisite application in the High Court should be made to a master in the first instance. The possibilities are unlimited. What is important is that the remedy should always be proportionate to the mischief that needs remedying."

40. In my view, there is need for a firm restraint on Mr Pepin's litigious activities, given his long history to date of vexatious litigation, as an unrepresented litigant, in the institution of repetitive proceedings on the same subject-matters, in the manner of his conduct of them and the recent signs that he has not lost his appetite for it. Also, in my view, protection of the sort for which section 42 provides is necessary. As Mr Maxwell-Scott pointed out, this is quite a different case from that considered by this Court in Barker where it held that the three months period of vexatious conduct some three years before the hearing of the application had not been "habitual and persistent" and that, in any event, on the facts, it would not have been an appropriate case for an order since the defendant had not continued with it since and was unlikely to repeat it.
41. However, as I have said, Mr Pepin's institution of the first claim, in respect of PC Watts' disclosure of the CIS Report is not vexatious and is scheduled for trial towards the end of this year. And he now has the benefit of legal representation through solicitor and counsel in respect of it. It is his past conduct of that claim and his institution and conduct of the following 9 claims, in the main repetitious of it, that are vexatious. In the circumstances, I consider that it would be proportionate if the Court were: 1) to make, without limit of time, a civil proceedings order against him as defined in section 42(1A)(a), (b) and (c); and 2) to grant him permission to continue his proceedings under that claim only, but only if an advocate with higher court rights of audience so advises and only if and so long as such an advocate continues to represent him in the conduct of the claim. If Mr Pepin wishes to continue any of the others already instituted or to institute new ones, his remedy is to seek permission as provided by section 42.
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