QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MITTING
|HER MAJESTY'S ATTORNEY GENERAL||(CLAIMANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The DEFENDANT appeared via videolink as a litigant in person
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"(55) The trouble in this case, in my judgment, lies with Miss Douglas' unwillingness to refrain from pursuing her complaints against the Law Society and the educational instruments of that society at the College of Law. In my judgment, the history that I have recorded, the applications, both to the County Court and to the Employment Tribunal, and the applications to this court for permission to apply for judicial review, have the hallmark and can properly now be described as coming within the statutory definition of section 42(1). I say nothing about the applications for permission to appeal to the Court of Appeal. This is now a without notice procedure and although she made these applications which took up a good deal of court time, I would not place so much weight on those apart from expressing concern about the new set of applications which were triggered off in May of last year.
(56) But what rings out from this history is that there was a period of her life in which she was psychologically very concerned and troubled about the way that her hopes of pursuing a professional career had been thwarted. There was a period of under two years between September 1998 and the time when these proceedings were instituted last year when she behaved in a way which can be properly stigmatised by the language used in section 42."
Having been impressed with the polite and courteous way in which Miss Douglas had addressed the court and had expressed an intention to change her ways, Brooke LJ said this at paragraph 63:
"With some hesitation I consider that the appropriate course to take would be to adjourn these proceedings for a period of 12 months. The purpose of this adjournment will be to see if Miss Douglas is willing to desist on her own initiative from any further applications or actions of the type in which she has taken part too often in the past. There will be liberty to apply, so that if at any time during this period of 12 months the Attorney General wishes to restore this application, he will be at liberty to do so. The matter will be adjourned for 12 months. At the end of the period the Attorney, given the history of the previous 12 months, can form a view as to whether there is any need to press for an order, or whether the matter can now be said to have been satisfactorily resolved, there having been, by then, quite a long period since the litigious activity between September 1998 and June 2000 will have come to an end . . .
(65) In effect, when she came down to court this morning, having travelled all night by coach to be here, she was saying to the court, 'give me a chance'. We are willing to give her a chance, and I hope that she will enter the spirit of the court's willingness to give her a chance and desist from any further litigation. If she does not, then it seems to me almost inevitable that the order will have to be made against her under section 42 of the Act. I would, therefore, adjourn these proceedings for a period of 12 months."
Newman J agreed, adding this:
"I desire to emphasise that it has been central to my concurrence with the course which has been proposed by my Lord that the defendant should be given the opportunity to implement the substance of that which she offered to the court as an unconditional undertaking. That means that she cannot repeat her conduct of resorting to litigation in connection with past grievances and must not resort to litigation as a means of expression of frustration against each and every negative response that she receives. She will undoubtedly suffer rebuffs and set backs in the pursuit of her career."
"The Attorney General . . . has told us today that he does not wish the court to make an order on his application which is therefore dismissed. He made it clear that if the nuisance of which he made complaint resumes at any time in the future, he will not hesitate, if so advised, to come to this court again to apply for an order under section 42 of the Act. He has made it quite clear that if he does so he will maintain his right to rely on all the material which he put before the court on the previous occasion. This is a quite understandable attitude to take, in my judgment. I only hope that it will be unnecessary and that the happy story which Miss Douglas has told the court in a letter which it has just received will mean that she is able to continue with her hopes of developing a legal career without feeling she has to have recourse to litigation in the way that coloured her approach to her ambitions in the months leading up to the hearing on 18th July."
" . . . not because I consider this adequate, but because I intend to refer the matter to the Attorney General for further consideration as to an application under section 42. To my mind there is a need to regulate Miss Douglas for a far longer period than I can impose. It is also apparent that she has engaged, and indeed is still engaging, in litigation elsewhere -- there have been applications for judicial review and to tribunals."
"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 any reasonable ground --
(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person 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 of being heard, make a civil proceedings order."
"In considering whether the proceedings are vexatious one is entitled to, and must look at, the whole history of the matter, and it is not determined by whether the pleading discloses a cause of action."
In Attorney General v Barker  FLR 759, Lord Bingham of Cornhill CJ considered the words "vexatious" and "habitually and persistently". He said this at paragraphs 19 and 22:
"(19) The hallmark of a vexatious proceedings 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 . . .
(22) The hallmark [of section 42] usually is that [the claimant] 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 any 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 on any rational and objective assessment the time has come to stop."
"It is now well settled law that consideration of the question whether a person has habitually and persistently instigated vexatious legal proceedings does not depend on a minute examination of the question whether in each particular action there was a reasonable ground. The court must consider the number of actions brought, their general content and their results and must not review the merits of the underlying decisions."
He also added, and I of course keep in mind, that although the standard of proof is the civil standard, it is heightened to take into account the seriousness of the issues at stake.