England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		29th June 2005

1. MR JUSTICE CRANE: On 17th January 1986, an order was made (later corrected) under section 42 of the Supreme Court Act 1981 declaring the applicant, Mr Johnson, a vexatious litigant. The effect of the legislation at the time would mean that this was a Civil Proceedings Order.
2. The applicant now applies to set aside those proceedings on the ground that the Notice of Motion, by which the Attorney General sought to commence proceedings, was not sealed as the relevant rule required. No leave has been sought by Mr Johnson to make this present application. No point is taken against him that he needs leave for this particular application and without deciding the matter I assume, for present purposes, that he does not need leave.
3. The rules that were enforced at the relevant time were, of course, the Rules of the Supreme Court. By Ord 8, r 3(6):

"Issue of the notice of an originating motion takes place upon its being sealed by an officer of the office out of which it is issued."

The purpose of that, as set out in the notes to the 1988 Supreme Court Practice, was to give a clear and unmistakable message that the originating Notice of Motion was being served with the authority of the Supreme Court. That is to be found in the note 10/1/14. As I understand it, and as Mr Johnson has submitted, once sealed the Notice of Motion would be returned to the Treasury Solicitor for service on Mr Johnson.

4. The copy of the Notice of Motion, that was annexed to the application, does not bear any court seal and Mr Johnson has shown me today the documents that he asserts were originally served upon him all those years ago. There is no reason to doubt that they are in the form in which they were served. He states that he noticed the omission of the seal, or at least noticed its significance in April of this year. The court file has not survived nor has the Attorney General's file.
5. It is the submission made by Mr Sheldon, on behalf of the Attorney General, that the presumption of regularity applies and that I should be prepared to dismiss this application on the ground that in the absence of documentation from the court, or from the Attorney General, the applicant has failed to make out his case as to the irregularity. Having seen the documentation produced by Mr Johnson, it seems to me that at the very least there is a real possibility that an irregularity occurred and that there was an omission to place the seal on the notice.
6. What is the consequence? The Rules of the Supreme Court, Ord 2, r 1 read:

"(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.

(2) Subject to paragraph (3) [which is not relevant] the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit."

Ord 2, r 2 reads:

"(1) An application to set aside for irregularity a proceeding, any step taken in a proceeding, or any document or order therein, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion."

7. Of the authorities cited by Mr Sheldon in his grounds for resistance, the most helpful quotation is from the judgment of Lord Denning MR in Harkness v Bell's Asbestos and Engineering Limited [1967] 2 QB 729 at page 735, where he said this:

"This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that 'it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.'"

That was a quotation from Pontin v Wood [1962] 1 QB 594, per Holroyd Pearce LJ at page 609. The honest litigant would clearly include the Attorney General.

8. As so often Lord Denning set out clearly and helpfully the state of the law from that time onwards, including, of course, the time with which I am concerned. It is not necessary, in my view, to look at the Civil Procedure Rules, except to say that the present application is correctly brought, so far as procedure is concerned.
9. Mr Johnson has presented his case concisely and with great politeness taking me through his very helpfully set out Points on Oral Submission. It is clear that the omission of the seal, which may well have occurred, was not a nullity. Plainly no steps were taken to rectify that or to seek to set aside the order within a reasonable time, although Mr Johnson has plainly taken steps within a reasonable time of discovering the error, if there was one. He does not suggest that there was any actual prejudice. Following the service of the documentation on him there was a full hearing. There can be no doubt, to return to the passage in the notes to which he drew my attention, that the clear and unmistakable message that the Notice of Motion was being served on him, with the authority of the Supreme Court, came fully home to him. He was in no doubt, and he does not dispute this, about what was being served on him or that the Supreme Court was going to consider an order against him. He was able to take part in the proceedings.
10. It seems to me that in exercising my discretion, which I clearly have, the arguments ultimately are clearly in favour of the Attorney General. There is no actual prejudice. There was no actual prejudice at the time. The applicant knew what was being alleged against him. He knew there were court proceedings in the High Court. He took part in them and he has known about the order against him ever since. It seems to me that the time has long passed, if it ever existed in this case, where justice required that the court reconsider or set aside the order that was made. For those reasons I must dismiss his application.
11. THE APPLICANT: My Lord, it's sad to hear what you've said, but may I help the court in this way? My Lord stated "24th January". That was not the correct hearing before the Court. It was on 17th January and the order made on the 17th was amended under the slip rule on the 24th. So that may help.
12. MR JUSTICE CRANE: I am grateful for being corrected about that. I gave the date of the correction of the order and I am quite prepared to accept that it was originally made on the dates that you have just given me.
13. THE APPLICANT: I have them here, if my Lord wishes to see them. That is the date.
14. MR JUSTICE CRANE: Thank you very much.
15. THE APPLICANT: My Lord, I am minded to ask for permission to appeal. I think there is some considerable mileage in the appeal and I think that in today's age of civil rights I think there needs to be a matter looked at currently. I acted swiftly, promptly and as quick as I could when I found that the matter had not been sealed, that the document had not been sealed in March and I came quickly to this court. I didn't go headlong dashing in. I did some research so between actually the discovery and submitting the documents I did talk to the court, to the Administrative Court which has now taken over from the Crown Office.
16. My Lord, there is, in my view, a necessity to take this matter further. I do not need, as you correctly state, section 42 permission because these are in the proceedings in which I was made a section 42 ex-vexatious litigant. So in that section it says I do not need permission to appeal, but I do need your permission to appeal under the Civil Procedure Rules. I ask you to consider on the following grounds: (a) I believe there has been some injustice to me considerably over the years;(b) it impinges upon my work as an expert witness.
17. Since this order was made I have gone to university and I started doing a degree at the age of 42 and at the age of 46 I came out with a bachelor's degree in Minerals Estate Management and not wishing to blow my trumpet for the court's prize a 2/1 honours. I then proceeded to qualify as a Chartered Mining Engineer and I then proceeded to qualify as a Chartered Civil Engineer. I proceeded to become a European Engineer which allowed me to practice right across Europe.
18. In my qualification, as a European Engineer, I am registered as a consultant within the areas of mining engineering and civil engineering. I am also recognised as a consultant especially in the area of mining subsidence as my background is from the mining industry. I am registered as an educationalist because I formerly, after I qualified, became, through progression on merit, a course leader in civil engineering at Newcastle College and I now am back after 6 years, finishing in December 1999, I am back working as a consultant.
19. I have took the expert witness course and I have been used as an expert witness. One of the questions that I must say, that I am not sure whether I should do this, but I should really tell clients that I'm a vexatious litigant, but I don't think that is necessary because, as Mr Sheldon and yourself will know, the matter is published in the London Gazette every time a vexatious litigation order is made. So the whole public knows. I don't think I need do that but it will come up.
20. MR JUSTICE CRANE: It certainly will if they read the London Gazette.
21. THE APPLICANT: Yes. Yes, it is but a narrower field, isn't it? But, as I say, my qualification is that I'm a consultant, I'm an educationalist. I lecture and currently I am lecturing the law on a foundation degree in Northumberland College, which I have done for the last nine months, which is an evening class and it is a matter that I think if it ever raised its head substantially I will be -- there will be an injustice and I will lose work. I think it falls within the area of the Convention in the Human Rights Act that I will be possibly denied some form of employment because of this order.
22. I have not today applied to you to set aside that order, but to set aside a service and that will necessarily mean it will all be wiped out. As Mr Sheldon did mention in his submission, his written submission, although he didn't say it in words today, that Brooke LJ did say 'Go back to the court and ask to have it set aside': the vexatious litigation order. But the events -- that was in February and that is why I started to look at the whole thing.
23. I've got a degree which includes law. I did law in every year of the Bachelor's degree and subsequently I've also obtained a Masters Degree in Geo Technical engineering which is a very, very specialist field. It is going to come up. I am sure somebody is going to say, 'There's Ken Johnson, a chartered engineer in court. He's a vexatious litigant.'
24. My Lord, I think that this point is a sufficient point to ask your permission to allow me to take the matter to the Court of Appeal. I think there's some mileage in it justifiably, for me personally, because that is injustice impingent on my employment, my work and that we are now in an age that HRA is active and I'm sure you, my Lord, will have done your training with HRA and looked at it very seriously and will say "You have to be careful where there is a restriction on a vexatious litigant."
25. I'm not the same person as in 1986. I'm a grown-up lad now. I was a litigant with a hot head. I admit that there was some errors and I do say to this day that some of the stuff in the papers that was put before Kennedy J, on 17th January, I still dispute them to this day because I have the evidence, but I am saying, my Lord, I'm looking at me today. I am not going to rake over the past. I think that this particular point that if we have a situation where informal, and that's what I'm saying it was, an informal document contained (?) in court be made an order against you under section 42, I think that should be done precisely.
26. A Treasury Solicitor, as far as I am concerned, is the top solicitor of this country. He is acting for the top lawyer, the Attorney General, and I think their work should be precise, just as I have to be precise as an engineer. I think that they should be precise and I think that I am entitled to have been served the document which is sealed and has been served with the authority of the Supreme Court. I could labour the point, my Lord, but you see where I'm coming from, I'm sure. May I have your permission to take the matter to the court?
27. MR JUSTICE CRANE: I am afraid, Mr Johnson, I am against you. All I am considering today is whether the original order should be set aside because of the irregularity--
28. THE APPLICANT: No, my Lord.
29. MR JUSTICE CRANE: Just a minute.
30. THE APPLICANT: I'm sorry. I do apologise.
31. MR JUSTICE CRANE: I do not doubt what you tell me about your activities as an expert witness and it may be that you are now caused some problems in that connection. However, on the issue that I have been asked to decide, I take the view that there is not any real prospect of success, or, to use your words, I do not think there is any "mileage" in your point. So I am afraid I shall refuse permission.
32. THE APPLICANT: I clearly understand my Lord and I'll now have to ask the Court of Appeal for permission and in that application I will have to put the case law in a better format, which I think you are entitled to hear.
33. MR JUSTICE CRANE: That is a matter for you.
34. THE APPLICANT: Thank you for your time.
35. MR JUSTICE CRANE: Thank you.
36. THE APPLICANT: My Lord, I'm sorry. A friend of mine just shouted across the room. I hope you don't mind that.
37. MR JUSTICE CRANE: I did not hear what he said.
38. THE APPLICANT: Oh well, he did shout because I'm partially deaf. My Lord, can I impose on your generosity? Can I have a transcript of these proceedings?
39. MR JUSTICE CRANE: You are entitled to apply but I am not prepared to order one at public expense. You can apply in the usual way.
40. THE APPLICANT: Thank you very much.
41. MR SHELDON: My Lord, my instructions are to ask for the Attorney General's costs of this application to be assessed, if not agreed. My Lord, the basis for that submission is simply that costs in a matter of this sort will ordinarily follow the event. There is no good reason to depart from that course in this case.
42. It was the Attorney General's intention, in filing a full and detailed grounds of resistance, to make Mr Johnson clear as to the basis upon which his application was to be resisted. To ensure that he was able to take the decision as to whether or not to proceed in possession of the full facts and merits of this case. He chose to proceed nonetheless. He has lost and the Attorney General is, in my submission, entitled to his costs.
43. MR JUSTICE CRANE: Mr Johnson?
44. THE APPLICANT: No, my Lord, for the reason being I asked you not to make that order because, as I said before, the Attorney General, in my view, ought to have had a solicitor, or a Treasury Solicitor, who was precise. Because I brought the matter some 20-years, the Attorney General did not ask for costs at the hearing before Kennedy J in January 86 and he should not have his costs now. At that time it was by Mr John Laws, now Lord Laws, who was counsel at the time. Mr Laws, as he was then, did not ask for costs and I don't think the Attorney General should have his costs now.
45. In any event, the matter will evolve itself in such a way that the Attorney General has not been put to any great expense, in my view, but has been shown that his Treasury Solicitor has not been up to the mark and therefore he should not get his costs.
46. MR JUSTICE CRANE: I shall make an order for costs to be determined, if not agreed. On this particular issue Mr Johnson has failed and the Attorney General has succeeded. The usual order of costs is that the loser pays and I see no sufficient reasons to depart from that principle in the present case.