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
		17 November 2004

1. LORD JUSTICE ROSE: The Attorney General seeks a civil proceedings order under section 42 of the Supreme Court Act 1981 in relation to the defendant Kess Thomas Lewis. That section provides that if on an application by the Attorney General the High Court is satisfied that a person has habitually and persistently and without reasonable ground instituted vexatious civil proceedings the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order.
2. It follows that the first question for consideration by this court is whether it is satisfied that the defendant has habitually and persistently and without reasonable ground instituted vexatious civil proceedings and the second question, if it is so satisfied, is whether the court should, in the exercise of its discretion, make a civil proceedings order.
3. The authorities as to the approach which this court should adopt are clear, few in number and can be briefly rehearsed. In re Vernazza [1959] 1 WLR 622 at 624 Lord Parker CJ said that the court is entitled to and indeed must look at the whole history of the matter and is not limited to the question of whether or not a pleading discloses a cause of action. The court is entitled to look at the history and if, in the light of the history, an action is vexatious a pleading can be struck out and the action dismissed. Lord Bingham CJ in Attorney General v Barker [2000] 1 FLR 759 at paragraphs 19 and 22 of the judgment indicated the hallmarks of vexatious and habitually persistent proceedings. The hallmark, he said, is that the proceedings have little or no discernible basis in law. The effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue. It involves an abuse of the process of the court, namely using the court process for a way significantly different from its ordinary and proper use.
4. Lord Bingham referred to the hallmarks consisting of the suing of the same person repeatedly in reliance on essentially the same cause of action, a consequential burden being imposed on defendants of resisting repeated claims and further Lord Bingham identified the automatic challenge of every adverse decision by appeal and the refusal to take notice of or give effect to orders of the court as further indicia of vexatious and habitual and persistent litigation. The essential vice he said is:

" ... keeping on and on litigating when earlier litigation has been unsuccessful and when, on any rational and objective assessment the time has come to stop."

5. The nature of such activity, of course, does not depend on repeated suing of the same party or repeatedly raising the same cause of action. There may be numerous claims against a wide range of defendants in circumstances where no reasonable cause of action exists (see Attorney General v Matthews [2001] EWCA Civ 254). It is also to be noted that the court is entitled to rely on the conclusions reached by judges in proceedings determined by them (see Attorney General v Jones [1991] W.L.R. 859 at 863).
6. The submission which is made by Mr Bourne on behalf of the Attorney General in the present case is that for four years since September 1999 Mr Lewis has started over 40 sets of proceedings, mostly in courts but some in tribunals. Mr Bourne accepts that the proceedings in the tribunals are not in themselves capable of supporting an application of this kind.
7. Of that large number of actions there is only one, namely action number 1 in the schedule to the affidavit of Mr Holder, on which Mr Bourne relies, in which it could be said that Mr Lewis has been in any way successful. That was an action in September 1999 when, in the county court, Mr Lewis sued a former employer claiming £300 in unpaid wages. Subsequently, the parties agreed that the amount payable was £46 and there was a modest judgment to some extent in Mr Lewis' favour.
8. Mr Bourne seeks, helpfully, to summarise under a number of heads some of the more obviously outstanding characteristics of Mr Lewis' litigation as set out in detail in the documents before the court and summarised in the schedule to Mr Holder's affidavit.
9. In the vast majority of these cases the claim has either been struck out by the court, frequently on the court's own motion, on the ground that no reasonable claim is disclosed or that they were an abuse of process, or, in relation to certain applications for judicial review, permission has been refused, sometimes orally, sometimes on the papers and sometimes both.
10. There have been a number of defendants who have been sued repeatedly by Mr Lewis, no doubt to their distress and financial disadvantage. A Mr Bennett, for example, was a one time landlord of Mr Lewis. Four actions were brought by Mr Lewis against him. They are actions 10, 13, 20 and 32 in the schedule. The nature of the claim in action number 10 made in the county court in December 2001 was damages for nervous shock caused by the landlord's alleged negligence. Action number 13 was struck out as an abuse of process. It proceeded along similar lines so far as the cause of action was concerned. Mr Lewis appealed directly, but unsuccessfully, to the Court of Appeal against the striking out.
11. In action number 20 there was a further claim in the Worcester County Court against Mr Bennett alleging harassment; that was struck out. There was an application to reinstate which was also dismissed and an application for leave to appeal which was dismissed. Action number 32 was again a claim against Mr Bennett for negligence and breach of statutory duty. It was struck out by the court and it was one of the actions which was included in an extended civil restraint order made on 22nd September 2003.
12. Another defendant repeatedly sued was Tesco Stores. Against them Mr Lewis brought five civil actions and he also made four complaints to an employment appeal tribunal based, in particular, on an allegation of racial discrimination. All of those proceedings were struck out and the complaints dismissed.
13. The proceedings in the county court are actions 15, 15A, 25, 27 and 31 in the schedule. A flavour of the matter can be gained from looking at actions 15 and 15A brought within a space of weeks in the Birmingham County Court claiming racial discrimination against Tesco and both of them having been struck out. Actions 25 and 27 were likewise based upon alleged racial discrimination by Tesco. Both were struck out on the basis that there were no reasonable grounds for bringing the claim. Action number 31 was proceedings instituted in the same county court the following May, based, apparently, on the same facts as actions number 25 and 27, with some additional particulars. That was struck out with an order for costs by the district judge. Mr Lewis attempted to appeal directly to the Court of Appeal against that decision, the Court of Appeal having of course no such jurisdiction.
14. Mr Johansen was also, at one time, a landlord of Mr Lewis. He and his girlfriend, a Miss Ralph, were subjected to action number 4 in the schedule which claimed unlawful eviction, theft of property and harassment. The claim was unsuccessful whereupon Mr Lewis, undaunted, laid a series of informations before the magistrates against Mr Johansen and Miss Ralph, all of which were dismissed as an abuse of process.
15. There then followed what one might describe as ancillary litigation, because Mr Lewis sought redress in action 5A against the West Mercia Constabulary who, he claimed, were negligent in relation to his being evicted by Mr Johansen. Similarly, there were proceedings brought in action number 6 against the Crown Prosecution Service, in the person of a Mr Hardy, for supposed negligence in failing to advise Mr Lewis that Mr Johansen had been committing criminal offences.
16. In actions against two police officers who had refused Mr Lewis' request that Mr Johansen be arrested, Mr Lewis sought relief, but those proceedings were stayed as an abuse of process. That in turn led, in actions 8 and 22, to a challenge by way of attempted judicial review by Mr Lewis. There were then further actions 9, 14 and, by way of judicial review, 18 against the county council, a detective officer and the Police Complaints Authority.
17. Exemplification of Mr Lewis' determination to relitigate issues already decided can be provided by action 31, which we have already described as a repeat of the unsuccessful action 27, and, similarly, action number 32 was a repeat of the unsuccessful action number 13; those proceedings were against Mr Bennett.
18. In the great majority of his litigation, Mr Lewis has challenged or sought to challenge the results of unsuccessful actions by way of an appeal or an application to set aside. All of those attempted appeals and applications have been unsuccessful. It is possible to enumerate the actions in which that has been the outcome. They are numbers 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 16, 19, 20, 24, 26, 29, 31, 34 and 39. It is to be observed that, in relation to actions 7 and 9, the court made an order that no further application should be made to the court without leave of the court.
19. There have been a number of occasions when Mr Lewis has failed to attend hearings in connection with the litigation which he has instituted. Some of his claims, for example numbers 19 and 21, have been brought hopelessly out of time.
20. It is, perhaps, worth referring specifically to a judgment of the Divisional Court on 4th April 2003, which is action number 22, when Kennedy LJ and Hooper J refused permission judicially to review a number of decisions of the magistrates.
21. The present position, so far as restraint of Mr Lewis is concerned, is this: on 22nd September 2003 at the Worcester Crown Court HHJ Geddes, in relation to action number 22, made an order restraining Mr Lewis until 22nd September 2005 from bringing any proceedings or making any application in existing proceedings in Worcester and a number of geographically close county courts without permission of Judge Geddes. Furthermore, on 18th December 2003 in relation to action number 41 HHJ MacDuff QC at Birmingham County Court forbade Mr Lewis for a period of two years from issuing any new proceedings alleging racial discrimination against any defendant in the Birmingham County Court and from issuing any application or appeal in relation to existing actions without first obtaining the permission of the court.
22. Furthermore, on 2nd February 2004, Mr Lewis having issued five sets of proceedings for judicial review between 5th September 2003 and 1st October 2003, those are actions 35, 36, 37, 38 and 40, the Divisional Court restrained Mr Lewis from issuing any further claim in any court, directly or indirectly relating to investigation of the alleged theft of his washing machine in 1998, without first obtaining permission from a county court judge.
23. It is apparent from that history that the civil restraint orders made have not proved successful in preventing Mr Lewis from litigating. And, indeed, he shows no sign either in the documentation before us or in the way in which he has advanced his submissions to this court of any intention to change his ways. In essence, the summary made by Mr Bourne is that there is a very substantial body of evidence showing a sustained willingness to abuse the process of the court. Mr Lewis has, on repeated occasions, engaged in litigation which is vexatious and devoid of merit. He has caused inconvenience and expense to other parties. He has used up the court's resources to the detriment of other court users and there has, save for the modest benefit in action number 1 to which at the outset I referred, been no apparent benefit to Mr Lewis. This conduct has, on the material before this court, persisted for some four years. Therefore Mr Bourne submits, in the exercise of its discretion, the court should make the order which is sought.
24. In his submissions to us, Mr Lewis denies all the claims which are made against him. He submits that there is no or insufficient evidence to support the Attorney General's claims. He submits that there is no evidence to justify the order made by Judge MacDuff in December 2003. He believes that he has been unfavourably treated by the courts on racial grounds. I comment, in passing, that there is not a scrap of evidence to support that allegation.
25. Mr Lewis referred this court to a large number of authorities, of some of which he provided photocopies for the court. Some of those cases provided examples, to which Mr Lewis drew attention, of cases where, in the circumstances considered by the court, it was held that there had been no abuse of the court's process. There are examples in the authorities to which he has referred where the court held that there was an arguable cause of action and, in consequence, no abuse of process had taken place.
26. As to the principles applicable in relation to an application of the present kind, I have sought to summarise at the beginning of this judgment the authorities which seem to me to be pertinent. From the further authorities to which Mr Lewis referred, for my part, I did not derive assistance in relation to principle.
27. Mr Lewis made reference to a number of other legal principles, including Wednesbury unreasonableness and the doctrine of ultra vires, which did not have any obvious relevance to the issues for this court's consideration. Mr Lewis said that suspicion of, to use a shorthand, "misbehaviour" on his part would not be enough to justify the making of the order presently sought; with that proposition I agree.
28. Mr Lewis concluded his submissions by producing a number of letters which he had sent to the Civil Appeal Office and which he says have been returned to him. The substance of his submission is, first, that it is not shown that he has behaved vexatiously, habitually and persistently, and that, in any event, this court should not exercise its discretion to make an order of the kind which is sought. It seems to me that there is an overwhelming body of material from which the inevitable and irresistible conclusion must be drawn that Mr Lewis has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings.
29. Furthermore, as it seems to me, in the light of that litigation and the period over which it has been conducted, and the likelihood that it will continue if not restrained, this is a case in which the discretion of the court ought to be exercised in favour of making a civil proceedings order under section 42. For my part, therefore, I would make such an order.
30. MR JUSTICE LEVESON: I agree. Mr Bourne accurately concedes that the Attorney General cannot rely on proceedings before an employment tribunal as providing a basis for this claim, but it should not be thought that such actions play any part of substance in the evidence before the court. Of the 43 proceedings which the court has considered in the period following September 1999, three were commenced before the employment tribunal. Excluding the one successful action to which Rose LJ has referred, 28 were commenced in the county court and no fewer than 14 have been started in the Administrative Court. Notwithstanding Mr Lewis' submission to the contrary, the simple recitation of these statistics, bearing in mind that each has been struck out, or in the case of proceedings for judicial review permission has been refused, is significant. Further, many of the decisions were the subject of entirely unmeritorious appeals, all of which have been unsuccessful. In the circumstances the criteria set out in section 42(1) of the Supreme Court Act 1981 are more than amply satisfied.
31. LORD JUSTICE ROSE: Accordingly, we make the order under section 42, a civil proceedings order, as sought.
32. THE DEFENDANT: I will be appealing that order.
33. LORD JUSTICE ROSE: Will you? That is absolutely fine.
34. THE DEFENDANT: I will be seeking permission to appeal.
35. LORD JUSTICE ROSE: If you are seeking our permission, our permission is refused.
36. THE DEFENDANT: Fine, but I will be seeking permission from the Court of Appeal.
37. LORD JUSTICE ROSE: That is your privilege.
38. THE DEFENDANT: And also I want a copy of that order please.
39. LORD JUSTICE ROSE: I have no doubt that you will get a copy of the order.
40. THE DEFENDANT: And the judgment.
41. LORD JUSTICE ROSE: Well, you can have the transcript of the judgment in due course certainly.
42. MR BOURNE: There is no other application, my Lord. Thank you very much.
43. THE DEFENDANT: And is that for a limited period or unlimited? Is the order limited?
44. LORD JUSTICE ROSE: It is unlimited, Mr Lewis.