England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		7 April 2005

 


Thursday 7 April 2005

LORD JUSTICE LAWS:

1. Her Majesty's Attorney General seeks a Civil Proceedings Order against the defendant, Mrs Foden, pursuant to section 42 of the Supreme Court Act 1981. That section provides so far as relevant:

"(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 reasonable ground --

(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same 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 leave of the High Court be instituted in any court by a 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;

(c) no application (other than one for leave under this section) shall be made by 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."

Subsection (3) makes provision for applications for leave to the High Court as contemplated in the definition of "civil proceedings order".

2. In deciding whether any given proceedings are vexatious within this section the court is entitled to, perhaps obliged to, look at the whole history of the matter and is not confined to such questions as whether an individual pleading discloses a cause of action: see In Re Vernazza [1959] 1 WLR 622,624. It is useful also to cite this well-known passage from the judgment of Lord Bingham CJ (as he then was) in Attorney General v Barker [2000] 1 FLR 759, 764:

"The hallmark [of applications under section 42] is that the claimant sues the same party repeatedly and in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled against 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 notice of or give 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, on any rational and objective assessment, the time has come to stop."

3. Further, in dealing with an application under section 42 it is not the court's task to revisit and reconsider the merits of the individual underlying actions upon which the Attorney General relies. The court is entitled to go by the conclusions of the judges who determined those earlier proceedings: see Attorney General v Jones [1990] 1 WLR 859, 863.
4. The Attorney General's claim form in these proceedings was lodged on 8 July 2003, the application having been authorised by a certificate given by the Solicitor General. Before coming to the factual basis of the claim, I should explain the delay in the case and the fact that the defendant is not here today to answer the application.
5. The case was listed for hearing in this court before Brooke LJ and Sullivan J on 7 October 2003. The defendant did not attend. She had submitted an application for an adjournment, supported by a medical certificate stating that she was suffering stress, depression and rhinitis and could not travel from Plymouth to attend court. In his judgment delivered on 7 October 2003, Brooke LJ referred to "the huge volume of letters with which Mrs Foden has bombarded the Court Office in the days leading up to this application". The court granted the Attorney General an interlocutory injunction effectively amounting to an interim Civil Proceedings Order, though without prejudice to the final outcome of the Attorney's application, and the court adjourned the substantive proceedings. They directed that it should not be relisted within six months unless either party applied to the contrary.
6. It is right to notice that the defendant had already been granted two extensions of time for filing her Acknowledgement of Service by Stanley Burnton J on 17 July 2003 and by Richards J on 6 August 2003.
7. After 7 October 2003 further successive medical certificates were supplied by the defendant attesting her inability to attend court or prepare bundles for the hearing. At length the case was listed for mention on 29 July 2004 before Dyson LJ and Henriques J. The court ordered the defendant to supply a full psychiatrist's report within six weeks, giving details of any medical condition affecting her ability to prepare for and attend the hearing and indicating when her health might permit the hearing to take place. No such report has been provided, despite an offer from the Treasury Solicitor to meet the cost of it. The defendant has submitted yet further medical certificates. The latest, issued on 27 January 2005, extends to 25 April 2005 and certifies her unfitness to travel, attend court or prepare bundles. The case was again listed on 18 February 2005 for the court to consider how the matter should proceed. On that occasion the court (Stanley Burnton and Moses JJ) ordered that the case be listed for substantive disposal as soon as possible. The defendant has applied, by notice dated 4 March 2005, for a further adjournment of account of her continuing ill-health. That was opposed by the Treasury Solicitor in a letter dated 15 March 2005.
8. It is to be noted that, notwithstanding her inability to attend court, the defendant has continued to attempt to litigate. Since the order of this court made on 7 October 2003, she has issued at least four applications for permission under section 42(3) (or its analogue in the Divisional Court's order). Some steps have been taken but because of the defendant's ill-health it has not so far been possible to list these applications for substantive hearing. One order was made by Pitchford J only yesterday, to which I will come later.
9. I should also indicate that the defendant has intimated a request that both I and my Lord, David Steel J, recuse ourselves from these proceedings. David Steel J dealt with a matter in which the defendant was engaged in the Exeter County Court. She complains of his conduct on that occasion. For my part I have participated in at least two hearings in the Court of Appeal at which the defendant was refused permission to appeal from orders made in lower courts. In my judgment there is nothing here that begins to justify a recusal on the part of either of us.
10. In my judgment it would be quite wrong to grant the adjournment sought. Nothing has changed since the court's order of 18 February 2005 such as might justify an adjournment. That was the date when it was ordered that the matter be listed for substantive disposal. The court has seen considerable written materials from the defendant, including an affidavit of 23 July 2004, sworn in answer to the material relied on by the Attorney General, and a further affidavit of 31 March 2005, apparently sworn both for the purposes of an application to adjourn bankruptcy proceedings and for the purposes of this hearing. We have read those documents carefully.
11. We have before us a skeleton argument prepared by counsel for the Attorney General, a detailed witness statement from Mr Holder of the Treasury Solicitor's Department describing the history of the litigation on which the Attorney relies, a schedule of the defendant's various actions, and files containing the primary source materials. The defendant has brought 33 actions since 1989. The genesis of a great deal of this litigation is to be found in the purchase by her in 1984 of a bungalow in Yelverton, Devon, to house her ageing parents. They moved out of their house, No 1 Glen View, also in Yelverton, and into the bungalow. Glen View, however, was not then sold and a dispute arose as to whether the defendant enjoyed any, and if so what, beneficial interest in Glen View. Her father, unhappily, died shortly after the parents moved into the bungalow. The defendant stated her belief that her parents had agreed to leave Glen View to her after their death. Her mother understood the agreement to have been only that the defendant would receive the rental income from the house.
12. At length the defendant's mother commenced an action for a declaration that the defendant had no interest in Glen View. That is action No 2 in the schedule. The defendant counterclaimed for a declaration that indeed she did have such an interest. After a contested trial in the Plymouth County Court His Honour Judge Previte QC found in favour of the mother and dismissed the counterclaim. The Attorney General does not rely on the defendant's counterclaim directly for the purposes of section 42. There was at the time a genuine dispute. However, not only did the defendant seek to appeal to the Court of Appeal against the judge's clear findings of fact (and in that she was successful), but she has also, and perhaps more pertinently, sought to re-litigate the issue about Glen View and has embarked upon satellite litigation such as professional negligence claims against her own solicitors and judicial review of court decisions which have gone against her.
13. In Action No 12, issued on 27 November 2000, the defendant sued the executrix of her mother's will, her own daughter, to whom Glen View had been left, seeking to reopen the question whether her mother had agreed to leave the house to her. In Action No 20 she vigorously resisted her daughter's application qua executrix for the removal of a caveat which she (the defendant) had placed on her mother's will. The caveat replicated the claim which His Honour Judge Previte had dismissed. In both these sets of proceedings the defendant was conspicuously unsuccessful and in both she made unsuccessful attempts to appeal. In refusing permission to appeal his order removing the caveat, His Honour Judge Overend stated:

"Mrs Foden is a compulsive litigant. She refuses to accept the judgment of the court relating to [her mother's house]. .... Mrs Foden's litigation .... has swallowed up virtually all her mother's estate.... It is a sad case under which a line should be drawn."

14. Even after this the defendant sought permission to appeal to the Court of Appeal. That was refused on 19 December 2002. In fact her mother's estate was by now virtually worthless, having been largely consumed by the Legal Aid charge in respect of the claim for a declaration.
15. In paragraphs 11-13 of his statement Mr Holder described proceedings taken by the defendant against various firms of solicitors. In Actions 4, 8 and 11 she sued four firms (two of them in Action No 8). The firms had acted for her in her dispute with her mother in possession proceedings and in matrimonial proceedings. Each of these actions was either struck out for failure to provide particulars or otherwise dismissed without trial. In refusing the defendant's application to restore Action No 4 after it had been struck out, His Honour Judge Overend observed:

"The reality is that she has failed in her action involving her mother, in the action with the Birmingham Midshires and she has been dissatisfied with the outcome of the matrimonial proceedings.

Those matters have all gone to appeal. She has sought to litigate every aspect of everything. There is hardly a stone left unturned and very little purpose is served by this litigation, save to permit Mrs Foden to quench her thirst for further litigation."

The defendant sought to appeal Judge Overend's order, alleging amongst other things bias and lack of jurisdiction.

16. Thus in these claims also the defendant was revisiting the contest over Glen View, as well as other matters, as the terms of her pleadings demonstrate. More recently she has issued further claims against the same solicitors. Actions Nos 27 and 29 were both issued against the same firm, Messrs Humphreys and Company, who had been sued in Action No 11. Actions 27 and 29 were issued within a period of three months: No 27 on 31 July 2002, and No 29 on 16 October 2002. Actions 28 and 32 were also against firms of solicitors, and also issued on 16 October 2003 at the Royal Courts of Justice, as were actions Nos 30, 31 and 33. Action 28 was the third claim against the firm Mitchelmore Davis and Bellamy. Two other claims (25 and 26), respectively issued in the Exeter District Registry on 8 July 2002 and 31 July 2002, were both brought against yet another firm of solicitors, Messrs Bond Pearce. It seems, however, that they had never acted for the defendant. They did act for solicitors whom the defendant had sued. There is limited information as to what happened to these two cases, but they seem to have involved allegations of collusion and conspiracy. I conclude with some confidence that they possessed all the hallmarks of a vexatious process.
17. In paragraphs 14-20 Mr Holder describes certain judicial review proceedings brought by the defendant. These are Actions 9, 10, 21 and 22. He there describes certain other collateral proceedings: Actions 15 and 33 against the Lord Chancellor's Department; and Actions 14 and 23 which were attempts to set aside statutory demands issued in respect of orders for costs made against the defendant in earlier litigation. Actions 9 and 10 were respectively brought the Legal Aid Board and the Plymouth County Court. In Action 9 judicial review permission was refused by Latham J on 10 December 1999 and in the Court of Appeal on 20 March 2000. In Action 10, which suffered a similar fate, the defendant sought judicial review

"upon all cases before judges in Exeter Circuit 1989-1999"

on the grounds, amongst other things, that

"I am of the opinion the judiciary concerned in each case have failed to assimilate the facts before them and address where relevant the applicable law and all the circumstances."

The defendant's claim form in Action No 10 concluded with this assertion:

"Numerous county court judgments have been made against me obviously and I have been discredited, in my opinion, unfairly, and suffered horrendous financial destruction which I believe could be put in order by this judicial review."

In Action No 10 also it is plain that the defendant was seeking to reopen judicial decisions which had related to the property litigation and also to reopen Action No 4, a claim against the solicitors Messrs Wolferstans.

18. Action No 21 was against the Plymouth County Court and Judge Overend, and Action No 22 against the Plymouth County Court. In Action 21 Richards J refused the defendant's renewed application for judicial review permission, stating that it was "plainly inappropriate".
19. As for Action Nos 15 and 33 and 14 and 23, Mr Holder says:

"18. Mrs Foden has opened a further line of collateral attack by bringing two sets of proceedings against the Lord Chancellor's Department (actions 15 and 33). Both actions are plainly vexatious attempts to re-open past disputes. The Claim Form in action 15 opens with a claim for, 'Damages for failing to provide .... justice'. The Particulars of Claim then contain a detailed rehearsal of much of Mrs Foden's litigation. The Claim Form in action 33 is similar -- claiming: 'Damages for unreasonable judicial decisions 1990-2002', which were 'to be assessed in excess of a million pounds'.

19. A yet further species of collateral proceedings undertaken by Mrs Foden is to be seen in her protracted attempts to set aside statutory demands issued in respect of costs orders made against her (actions 14 and 23). Mrs Foden treated these statutory demands as an opportunity to re-litigate the issue that had led to the costs orders being made against her and (in at least one case) to allege fraud against the judge who made the costs order. His Honour Judge Overend having dismissed one of her applications to set aside and struck out the other, Mrs Foden appealed each application to the single judge of the Chancery Division. Lloyd J having heard and dismissed both appeals together, Mrs Foden appealed to the Court of Appeal, where her appeals were heard together be Peter Gibson LJ. In dismissing the appeals he said:

'12. I do not doubt that Mrs Foden is genuine in her believe that she is the victim of an injustice. She feels that the solicitors who have defended her claim against them are in the wrong. She feels no less strongly that the judges who have decided points against her are equally wrong, and worse. But to make generalised accusations, as she does, of bias and malice and the like against such judges is, in my view, regrettably, particularly when to any objective observer there is no evidence of such serious misbehaviour. Lloyd J was at pains to explain to Mrs Foden that the issue before him was a very limited one.

13. It is not good Mrs Foden seeking to ge back to other cases which have run their course and could not be reopened before Judge Overend, Lloyd J or this court. If there was fraud, then there should have been a separate action brought within time against those whom she was accusing of fraud. Whether such an action would survive would depend on what Mrs Foden could substantiate. The only question for Lloyd J was whether Judge Overend was right to refuse to set aside the statutory demand. The crucial fact is that each statutory demand is based on costs orders which were then, and still are, standing. To refuse to set aside the statutory demand in the circumstances was not biased or malicious. Any judge true to his judicial oath would have done the same.'"

20. On 14 January 2003, Action No 15 was stayed by Master Leslie pending any application by the Official Receiver or the defendant's trustee in bankruptcy, a bankruptcy order by then having been made against the defendant.
21. In Action No 33 an application to strike out was issued, but the documents before us do not demonstrate the outcome. The overwhelming likelihood is that it was struck out.
22. It is convenient next to refer to Action No 24. In Action No 23 permission to present a bankruptcy petition in relation to the defendant had been given by His Honour Judge Overend on 23 Mary 2002. The petition was filed on 27 May 2002. The defendant's response is contained in her affidavit sworn on 3 September 2002. The petition was described as being "'bogus' from its origin in the Royal Courts of Justice" and was said to be a "tool to prevent exposure of the unlawful activity in the Western Circuit in a period 1995 to 2002 on my cases in three major trials". She also sought to open up her earlier claims on the basis of "fresh evidence". On 17 October 2002, the defendant was adjudged bankrupt and permission to appeal refused by His Honour Judge Weeks. A stay on the advertisement of the bankruptcy was then sought, claiming once again that it had been obtained by fraud. This was rejected by District Judge Moon on 24 October 2002. There was then an appeal dated 4 November 2002 and an application, issued on 15 November 2002, to annul the bankruptcy order. Both these matters were dealt with by His Honour Judge Weeks on 17 December 2002 and were dismissed. The defendant then sought to resist the appointment of a trustee in bankruptcy on the basis of alleged "asset stripping by judiciary of the Western Circuit.
23. At paragraph 21 of his statement Mr Holder refers to the following miscellaneous matters:

"a. Mrs Foden's conduct of the debt recovery action brought against her by Transport Repair Garage (action 6). The claimant issued a small claim in respect of an unpaid repair bill of £350 odd plus VAT. Judgment having been entered against Mrs Foden at the arbitration hearing, the limited appeal regime rendered her attempts to appeal to the circuit judge and thence to the Court of Appeal entirely without foundation.

b. The personal injury action in which Mrs Foden was the claimant (action 5/7) is also striking. The defendant admitted liability and at an assessment of damages (in July 2001), at which Mrs Foden was represented by counsel, the District Judge awarded her all the special damages she claimed and £6,500 general damages -- which was the sum that had been sought by her counsel. Despite this apparent complete victory, Mrs Foden has launched a series of appeals and applications, which it appears may still be continuing. These appeals and applications were plainly wholly without any underlying merit."

24. The only other claim in the Attorney General's schedule to which I will refer is Action No 3, for which I will adapt paragraph 10 of counsel's written submissions:

"This matter was a possession action by Birmingham Midshires Building Society seeking to enforce a charge over Clevedon [the bungalow]. The action was commenced in March 1994 but did not reach judgment until March 2000, at which point it was held that the defendant should pay Birmingham £96,000 outstanding under the mortgage. The defendant disputed the rate of interest which had been agreed under the charge and alleged that it had been altered after signature, but the judge found as a fact that the rate had been properly agreed. She also contended that she had been released from the charge at the same time that her mother had been released from a charge in relation to collateral security which the mother had provided by way of a charge over Glen View. This contention was also rejected by the judge who also found that the defendant's mother had also effected a charge on Clevedon which prevented the defendant from freely disposing of that property. The consequence was that the defendant was saddled with the charge over Clevedon, could not freely dispose of it and lost a substantial amount of money on the property which had greatly dilapidated. Whilst one can understand the defendant's upset at the adverse outcome of the action, it does not warrant the subsequent attempts to re-open findings made against her."

25. There is another matter to which I should refer, which finds no place in the Attorney's schedule. On 13 August 2004 the defendant issued an application for a reference to the European Court of Justice under Article 234 of the European Union Treaty. The application is said to concern European Union law relating to "third party contracts". The subject matter appears to be the context of Action No 3, that is the proceedings between the Birmingham Midshires Building Society and the defendant relating to the bungalow. They ultimately led to bankruptcy proceedings against the defendant. The application for a reference was as it seems to me plainly misconceived. Apart from anything else Action No 3 was by the date of issue of this application all over long ago.
26. The defendant applied also for a "stay of all court hearings in the United Kingdom concerning proceedings in which the defendant was involved" pending the reference. The matter came before Ouseley J on 13 September 2004. He treated the applications as either being for permission under section 42(3) of the Supreme Court Act or under the provisions of this court's order of 7 October 2003 which were analogous to section 42(3). Ouseley J declined to grant the applications, describing them as being "vexatious and without merit", but he appears also to have directed that they be considered at the substantive section 42 application, which is now before us.
27. The defendant's application for permission to appeal against Ouseley J's order was refused in chambers by Grigson J on 12 October 2004. I agree with him. There is no prospect of any such appeal succeeding. Nothing in this application for a reference seems to me to assist the defendant in resisting the Attorney's application today.
28. Another recent event to which we should pay attention is an order of Pitchford J made only yesterday, 6 April 2005, when he refused section 42 permission to apply to the Plymouth County Court to adjourn extant bankruptcy proceedings listed before that court for 13 April 2005. In refusing permission he observed:

"An application to adjourn has already been made to the County Court and refused by District Judge Moon on 8 March 2005 [the reference is given]. A request for reconsideration was dismissed and/or an appeal was dismissed by His Honour Judge Overend on 16 March 2005 on the merits. The court refused to accept the authenticity of the medical sick note tendered. The County Court has refused to entertain further applications from the applicant without leave of the High Court under paragraph (3) of the order of 7 October 2003. In her affidavit of 31 March 2005, the applicant has failed to explain the coincidence which led the judge to reject the medical certificate. Furthermore the applicant proceeds in her affidavit to identify the grounds upon which the bankruptcy order should not be made. I do not consider the applicant has even now provided satisfactory evidence that she may be unfit to attend the bankruptcy hearing. This is merely a repetition of the application dismissed by Judge Overend."

29. In light of all this material I may express my conclusions shortly. This defendant has become a compulsive litigant who has lost touch with reality. Her remorseless pursuit of litigation is wholly without merit, is clearly vexatious and has perpetrated a waste of scarce judicial resources needed for the determination of proper claims. Nothing in the documents put in by the defendant, including her affidavits, suggests otherwise. If anything they confirm it. For my part I would make a Civil Proceedings Order without limit of time.
30. MR JUSTICE DAVID STEEL: I agree.
31. MR NAWBATT: I am grateful, my Lord. I have no further applications to make.
32. LORD JUSTICE LAWS: So be it.