England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		13th July 2004

1. LORD JUSTICE KENNEDY: This is an application by the Attorney General for a Criminal Proceedings Order pursuant to section 42 of the Supreme Court Act 1981. On 7th July 2000 the Respondent was made the subject of a Civil Proceedings Order under the same section, and it is the case for the applicant that since June 2000 the Respondent has simply continued the behaviour which led to the making of that order by switching his activities to the criminal courts.
2. The Attorney General relies on eleven sets of criminal proceedings commenced by the Respondent in which he has made over 50 separate allegations of criminal conduct against a total of 12 different defendants. The proceedings fall into two broad categories --

(1) Proceedings against individuals directly connected with a long-running civil dispute which led to the making of a bankruptcy order against the Respondent.

(2) Proceedings against members of the judiciary and the Court Service involved in litigation pursued by him.

3. Between 26th June 2000 and 29th June 2000 at Hendon Magistrates' Court, the Respondent instituted proceedings against four separate defendants, namely --

(1) Ralph Woolf

(2) Midland Bank plc

(3) Jessica Weisfogel

(4) Jacob Isaac Rabinowicz

Mr Woolf was alleged to have procured the execution of a valuable security, namely the assignment of a judgment, by dishonesty. The bank was alleged to have been guilty of falsification of documents, obtaining a money transfer by deception, concealment and fraud. Ms Weisfogel was alleged to have committed perjury and Mr Rabinowicz was alleged to have lodged a false application, knowing the same to be false.

4. As a result of the actions of the Respondent, those four defendants were summoned to appear at the Magistrates' Court, and counsel, appearing for all four defendants, then applied for the proceedings to be stayed. District Judge Wiles heard the application and on 11th September 2000 he granted it. He said:

"(2) It is abundantly obvious that Mr Ebert feels a sense of grievance following that extensive litigation and has come to this Court in a last ditch attempt to achieve satisfaction. I believe that all the issues alleged in the summonses have effectively been canvassed in the High Court and that Mr Ebert simply refuses to accept the various Orders and Judgments made against him. I further believe that to a large extent therefore his present actions are dictated by malice and that he is attempting to use the criminal justice system for his own ends and not in order to further the interests of justice.

(3) This intention is evidenced by the nature of the ill-founded allegations contained within the summonses, e.g, the s.17 allegation against Midland Bank where it is alleged that a "Statement of Claim" is an accounting document as envisaged by that section, that the other summons against the Bank alleges an offence contrary to legislation not in force at the time, that s.135 of the County Courts Act 1984 applies to High Court documents and the allegation of perjury contrary to s.1(1) where even Mr Ebert concedes the defendant in question never gave evidence as a witness."

The District Judge was then asked by the Respondent to state a case for the consideration of this court and he refused to do so, saying:

" . . . I consider the application to be frivolous, in that it is misconceived and hopeless. The whole basis of my decision to order a stay was because all the issues raised in the summonses have been fully aired on a number of occasions in civil proceedings before a number of senior Judges in the High Court, culminating in his being declared a vexatious litigant.

It is only because Mr Ebert has failed in the High Court that he has turned to the criminal law to seek redress in respect of his misconceived feelings that he is the person who has been wronged, and his refusal to accept the various Judges' decisions."

5. In about August 2001, the Respondent tried another Magistrates' Court, on this occasion at Haringey, where he laid informations alleging that there had been criminal conduct by two defendants, namely Mr Ralph Woolf and Miss J Y Venvil. They were alleged to have committed forgery, obtaining property by deception, misrepresentation and contempt of court. Mr Woolf was accused of making a false instrument and contravening section 135 of the County Court Act 1984 and section 17 of the Theft Act 1968. Miss Venvil was accused of unlawful eviction.
6. The informations were considered by District Judge Wiles on 20th August 2001. The Respondent submitted that he should disqualify himself on the basis that he had acted without jurisdiction in September 2000. The District Judge then refused to grant the summonses on the basis that no criminal offences had been disclosed, and said:

"The complaints which Mr Ebert was making within the written submissions were the same or similar to those he had made at Hendon, all of which had been the subject of numerous applications and hearings in the High Court by Senior Judges, culminating in Mr Ebert being declared a vexatious litigant. A number of Senior Judges had concluded that Mr Ebert's allegations of wrongdoing by the proposed defendants in this application, were totally without foundation or merit.

I was of the opinion that this present application was simply a device to commence identical proceedings in another Court without seeking removal of the stay which exists, or appealing that decision."

7. The Respondent then, on 30th August 2001, went to the Administrative Court to seek judicial review of the decision of District Judge Wiles to refuse to issue summonses. The grounds for the application are, as so often, cast in extravagant language. Ground 1, for example, reads:

"It is outrageous and scandalous of a Judge to declare a genuine Application which is supported by concrete evidence made by a victim of the crime as an abuse of the process."

And the written application continues at a later stage:

"The facts are that D.J Wiles has acted, bias, unreasonable, unlawful and in breach of his duty, abused His (sic) power to assist a crime of perjury, forgery, theft and prevent the due course of justice that amounts to torture and unlawful eviction."

The application was, of course, within the scope of the Civil Proceedings Order made by this court on 7th July 2000.

8. The Respondent then moved to another Magistrates' Court, namely Bow Street, were he asserted that HSBC (formerly Midland Bank) had dishonestly falsified an account payment sheet and by serving a statutory demand in 1995 had been guilty of blackmail. District Judge Nicholas Evans considered the 25 pages of documentary material with which he had been provided, and on 19th December 2002 he concluded thus:

"The papers do show unexplained discrepancies and I do not understand these, but I need to be provided with material which would give cause for the issue of process. At this stage there is insufficient before me to justify the issue of proceedings."

On behalf of the Attorney General it is submitted by Mr Holder in his written statement that the allegations made against the Bank were the same as those which had been made at Hendon. Certainly they arose out of the same civil proceedings and, as the District Judge found, they were unsubstantiated.

9. The Respondent then turned his attention to the senior judiciary. In about January 2003, at Bow Street, he laid informations alleging that Neuberger J, Smith J and Lloyd J had committed criminal offences. In the case of Neuberger J the allegations were of perjury, making a false representation and forgery. Smith J was alleged to have made an order which she knew to be false and made a false representation, and Lloyd J was alleged to have dishonestly procured the Respondent to accept a bankruptcy order by deception. He was also alleged to have made a false instrument.
10. District Judge Evans considered those applications for the issue of summonses on 16th January 2003. As he pointed out, the offences allegedly committed by the three judges all related to decisions they had made in relation to the Respondent's civil litigation. By 16th January 2003, District Judge Evans had learnt what had been happening at Bow Street and put it to the Respondent that he should have disclosed his earlier applications. The Respondent said that as there were different prospective defendants with different criminal allegations he had no obligation to disclose. The District Judge did not agree. As to the current allegations, the District Judge found there to be "not even the slightest suspicion" of perjury, no evidence of any dishonest execution of a valuable security, and nothing to suggest any forgery. He was satisfied that "there was no reasonable suspicion of any offence and no proper basis for the issuing of any summonses". In a letter dated 17th January 2003 the Respondent forcefully asserted that the District Judge had accepted that he had proved a prima facie case, and he also informed the District Judge of his wish to return to Bow Street on 20th January 2003 to issue further summonses. In due course he did as he had indicated.
11. On 5th February 2003 the Respondent applied by letter to Bow Street for the issue of a summons against Mr Jacob Rabinowicz, a solicitor involved in the original bankruptcy proceedings. He was alleged to have committed blackmail and perjury. District Judge Evans, in a written decision of 7th February 2003, declined to issue the summons. There was, he said, nothing to raise any suspicion of blackmail and he concluded thus:

"I am satisfied, on the material provided, that there are no reasonable grounds to suspect the commission of any offence by Mr Rabinowicz and no proper basis for the issuing of any summons."

The Respondent then applied to renew his application orally and was heard by District Judge Evans on 24th February 2003. The District Judge had by then acquainted himself with the attempts to litigate against Mr Rabinowicz, making allegations which Laddie J had said were unjustified and had always been unarguable. District Judge Evans said that the application for a criminal summons:

" . . . is a (futile) attempt to resurrect (some 5 years later) the same old points which Mr Ebert consistently failed to establish in the civil proceedings."

12. At the conclusion of the hearing on 24th February 2003, the Respondent lodged with the court a new application for a summons against Miss Venvil. He chose not to volunteer that he had previously sought criminal summonses against her. The allegations were of offences contrary to section 135 of the County Court Act 1984 and section 1 of the Protection from Eviction Act 1977. The District Judge found both allegations to be misconceived. She had been the trustee in bankruptcy and there was no basis for saying she acted improperly. The application failed to disclose any reasonable suspicion of any offence. Further applications were then referred to the Senior District Judge for directions. District Judge Evans was unable to deal with them because the Respondent, on about 4th March 2003 at Bow Street, asked for the issue of summonses addressed to Lord Irvine, then Lord Chancellor, Yvette Cooper, then a Minister of State in the Lord Chancellor's Department, and District Judge Evans. Both the Lord Chancellor and the Minister of State were alleged to have committed offences contrary to the Forgery and Counterfeiting Act 1981, section 271(1) of the Insolvency Act 1986, section 135 of the County Court Act 1984, the Misrepresentation Act 1967, section 5 of the Perjury Act 1911, and sections 15 and 20(2) of the Theft Act 1968. District Judge Evans was alleged to have committed offences contrary to sections 1 and 3 of the Forgery and Counterfeiting Act 1981, and section 5 of the Perjury Act 1911. Allegations of criminal conduct were also made against the Court Service.
13. Those applications were considered by District Judge Workman on 6th March 2003. He said this:

"I have examined each of the allegations against each of the proposed defendants and I have been unable to find any evidence to support the slightest suspicion that the alleged offences have been committed."

Legal Issues

14. Section 42 of the 1981 Act is specific as to the circumstances in which an order can be made. It can only be made if this court is satisfied that the Respondent has habitually and persistently and without any reasonable ground, instituted vexatious prosecutions (whether against the same person or different persons) and the order can only be made after we have heard the Respondent and or him an opportunity to be heard.
15. As to what is meant by the word "vexatious", Mr Sheldon for the Attorney General drew our attention to what was said by Lord Bingham in Attorney General v Barker [2000] 1 FLR 759 at 764C, namely:

"'Vexatious' is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment 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."

We were reminded that as long ago as 1990 Lord Donaldson, then the Master of the Rolls, in Attorney General v Jones [1990] 1 WLR 859 at 863D, made it clear that a person against whom an order is sought cannot challenge the conclusion of various judges in the underlying proceedings that his conduct in those particular proceedings has been vexatious or involved an abuse of the process of the court.

16. We were also reminded of the observations of Lord Woolf CJ in Attorney General v Matthews [2001] EWCA Civ 254, at paragraph 61, that when deciding whether the conditions set out in section 42 are met, it is necessary to look at the whole picture, and the cumulative effect.
17. At the end of the day we have to exercise a discretion, which inevitably involves considering whether any lesser measure would suffice to protect potential defendants and the court's resources without further restricting the Respondent's right to litigate. Mr Sheldon submits that in summary the case is overwhelming. The evidence speaks for itself. It shows that the Respondent has habitually and persistently and without any reasonable ground, initiated vexatious prosecutions, and no measure less than the order sought is likely to have any significant effect.

The Right to be Heard

18. At the outset of the proceedings before us, the Respondent complained that although he had received from the Treasury Solicitor the witness statement of Mr Holder, and the bundle of documentary material to which that statement referred, he had not received the skeleton argument of Mr Sheldon or the authorities to which Mr Sheldon proposed to refer. We were told by Mr Sheldon, and we accept, that the skeleton argument and the list of authorities were sent to the Respondent by fax on 18th June 2004, three days after the deadline prescribed by the rules and set out in the letter from the Administrative Court Office giving notice of the hearing date. Despite the Respondent's attempts to suggest otherwise, nothing turns on the slightly belated service of the skeleton, and if it be necessary to do so we grant an extension of time. But the Respondent's more substantial complaint is his assertion that the faxed transmission was never received by him. We find that difficult to accept. Other faxed transmissions sent to him were received and replied to, and the Respondent chose to communicate by fax without revealing his address. As the Treasury Solicitor knew, the address on his letterhead was not where he lived. Whether or not our suspicions as to his receipt of the skeleton argument are well-founded, the fact is that he had ample knowledge of the case against him, and he was furnished with a copy of the skeleton argument at the start of the hearing. We are satisfied that he was therefore in no way prejudiced in the preparation and presentation of his case before us.
19. The Respondent also purported to be initially under the misapprehension that this case was listed before us only for directions, and he has submitted two lever arch files with a statement headed "Skeleton for the Directions Hearing". He was told by the Administrative Court Office that, as had always been the position, the case was listed for a substantive hearing.
20. At the conclusion of the case on behalf of the Attorney General, which had lasted for one hour, the Respondent was told by the court that he must conclude his submissions by 3.30pm. It was then about 12.45pm, and the case had been listed for half a day. The Respondent then produced for the first time a file containing at Tab 2 what are described as his "written and oral submissions" on the issues relating to the application for a Criminal Proceedings Order. That document is 101 pages long, and starts with a previously undisclosed time estimate of two days. Since the conclusion of the oral hearing we have taken the opportunity to read that file. Although the Respondent had not concluded his oral submissions when he was required by the court at 3.30pm to bring those submissions to an end, we are satisfied that he was heard to the extent required by the statute.

The Oral and Written Submissions

21. The Respondent began his oral submissions by accusing us of bias, on what basis was not made clear. He said he had not received from the Treasury Solicitor documents he needed to prepare his case. He drew attention to the wording of the claim form, which he said was defective because it did not contain the word "vexatious". He said that none of the proceedings relied upon had been instituted by him because the laying of an information is a statutory duty, not the institution of proceedings. It is in fact clear from the wording of Section 42(1A) that the laying of information and any subsequent application for the issue of a summons does fall within the scope of Section 42(1)(c). The Respondent asserted, contrary to the findings of various judges, that whenever he laid informations he had reasonable grounds for doing so, and therefore, he contended, he was entitled to be persistent.
22. In paragraph 11 of his witness statement, Mr Holder refers to a decision of this court made on 21st September 2001 when an order was made that the Respondent should not attend at this building disrupting court business or wasting the time of the court staff. The Respondent in his oral submissions described that paragraph as "blackmail, defamation, slander, with the intention to pervert the course of justice". Moreover, he asserted, "The Attorney General is fully aware that he is obtaining by deception".
23. The Respondent then invited our attention to details of his civil litigation, which for present purposes are irrelevant. He said that "This proceeding has been instituted by Mr Rabinowicz, who is a persistent criminal". That is plainly untrue, not only as to the institution of proceedings but also as to the character of Mr Rabinowicz.
24. In his written submissions the Respondent raises issues such as whether this court is an independent and impartial tribunal if either member has ever, when at the Bar, appeared on behalf of the Attorney General. The issue is not worthy of serious consideration. He seeks disclosure of bench memoranda, to which he is plainly not entitled. He questions whether these proceedings have been properly instituted. Plainly they have been properly instituted. He submits that proceedings cannot be vexatious where the Clerk of the Court has directed the issue of a summons (as happened at Hendon Magistrates' Court). That simply does not follow. He questions the validity of the order made on 21st September 2001, a matter with which we are not concerned. His submissions are replete with references to the European Convention on Human Rights and decided cases, hardly any of which seem to us to be, for present purposes, of any relevance. He invites us to consider, and we do consider, whether a Criminal Proceedings Order of indefinite duration, which is the form of order sought by the Attorney General, would be disproportionate. He contends that such orders "serve no purpose whatsoever and are entirely disproportionate". He further contends that the wording of Section 42 of the 1981 Act is "too vague and meaningless and too wide in their ambit to be compatible with ECHR". We disagree.

Conclusion

25. In our judgment it is clear from the evidence before us that the Respondent has habitually and persistently and without any reasonable ground, instituted vexatious prosecutions. When we look at the whole picture it is possible to see the cumulative effect, and it is clear from what has already happened that nothing less than a full Criminal Proceedings Order of indefinite duration will have any effect. Such an order would therefore be entirely proportionate. We therefore, in the exercise of our discretion, make that order. It means that --

(a) no information shall be laid before a Justice of the Peace by the Respondent without the leave of the High Court, and

(b) no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court.

Nothing we have said has any impact upon the validity, and continuing validity of the order made by this court on 21st September 2001.

26. MR SHELDON: My Lord, thank you very much. I have nothing further with which I need to concern your Lordships.
27. MR EBERT: My Lord, first of all can I have a copy of the judgment?
28. LORD JUSTICE KENNEDY: When it is available, you will have a copy of the judgment.
29. MR EBERT: Secondly, I did not have an opportunity, before you decided to make the order to say that his Lordship is fully aware that you made the order on a false statement.
30. LORD JUSTICE KENNEDY: We are not hearing any more submissions Mr Ebert.
31. MR EBERT: When will I get the judgment?
32. LORD JUSTICE KENNEDY: When we have had an opportunity to consider the transcript and approve it. Thank you.