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
		11 October 2006

1. LORD JUSTICE MAURICE KAY: There is before the court an application on behalf of HM Attorney General for an order under Section 42 of the Supreme Court Act 1981 against the defendant Tanveer Kumar. Mr Kumar is not present in court today. There is absolutely no doubt that he is aware of today's hearing because he has referred to it in correspondence. He has also expressed himself in terms which suggested that unless the Administrative Court Office responded favourably to his request made in correspondence he might not attend today. We know that he now lives in Edinburgh; that is the address he gives on his most recent correspondence from earlier this week. We have to consider, first of all, whether to proceed in his absence in view of the fact that he clearly knows of the hearing date and he has equivocated as to his intention to attend.
2. In view of the fact that he has not made a persuasive application for an adjournment, we shall proceed with the judgment. I should add that in uttering his indication that he might not attend today Mr Kumar was doing so in the context of a request that certain applications made by him in connection with these proceedings should be heard before the application of the Attorney General. The applications to which Mr Kumar refers include applications effectively to strike out the application of the Attorney General on the ground that it is totally without merit with no reasonable prospect of success and on other similar grounds, including a suggestion that this court has no jurisdiction because of the fact that Mr Kumar now resides in Scotland. All matters of criticism as regards the Attorney General's application could have been ventilated at today's hearing if Mr Kumar had attended. For my part, it seems to me that the criticisms which he has expressed in the acknowledgement of service and his own claim form, together with an application notice dated 2 August 2006, are utterly without merit so far as the application by the Attorney General under Section 42 is concerned.
3. I turn to the Attorney General's application. Mr Barr draws our attention to the fact that Mr Kumar, who is of Indian nationality, only arrived in this country in early 2003. The litigation history which gives rise to the Attorney General's application comprises 14 sets of proceedings in England and one in Scotland. We are told by Mr Barr that there have been further proceedings started in Scotland about which information has only come to hand in the last few days. We can deal with the present application without any further information about those more recent cases in that jurisdiction.
4. The law in this area can be simply stated. Section 42 (1) provides:

"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; or

.....

the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order."

The application sought by the Attorney General is for a civil proceedings order, Mr Kumar's litigious activity all having occurred within the civil jurisdiction.

5. Mr Barr has helpfully referred us to the well-known authorities in this area, in particular the observations of Lord Parker CJ in Re Vernazza [1959] 1 WLR 622, 624 to the effect that when considering whether proceedings are vexatious the court must look at the whole history of the matter and the issues are not to be determined by whether the pleadings disclose causes of action. It is axiomatic that this court does not go behind the judgments and orders made in the litigation which has given rise to the application (see Attorney General v Jones [1990] 1 WLR 858, 863 per Lord Donaldson MR). In Attorney General v Barker [2000] 1 FLR 759, paragraph 19, Lord Bingham of Cornhill CJ described the hallmarks of vexatious litigation in these terms:

" ..... 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."

6. I turn to the 15 items of litigation upon which the Attorney General relies. The striking feature is that Mr Kumar's litigation has been uniformly unsuccessful. I cannot identify anything in the history of the 15 cases that could be described as a qualified success. It is necessary to refer to the 15 cases but I propose to do so only in the briefest of detail, assisted by Mr Barr's schedule.
7. The first case was against the Home Office, alleging breach of human rights in handling the immigration application made by Mr Kumar. The claim was issued on 20 May 2003. It was struck out by Mr Justice Poole on 28 November 2003. Lord Justice Clarke (as he then was) refused permission to appeal on the papers on 23 November 2004 and Lord Justice Longmore refused permission to appeal following an oral hearing on 14 January 2005.
8. Claim No 2 names as the defendants Margaret Mulholland and Peter Salt. It was commenced on 6 June 2003. The claim was struck out by a deputy district judge on 13 October 2003 on the basis that it was without foundation and/or totally without merit. The alleged cause of action had been "libel, breach of trust, harassment and injury to feelings".
9. The third claim was against the Lord Chancellor's Department and the Home Office. It was, in form, an application for judicial review relating to the facts and circumstances that had arisen in relation to claims 1 and 2. It was filed on 21 October 2003. On 20 December 2003 Mr Justice Munby considered the application on the papers. He refused permission and expressed the view that the proceedings were an abuse of process. Mr Justice Pitchford expressed similar views following an oral hearing on 18 February 2004. Applications to the Court of Appeal were unsuccessful in May and June 2004.
10. Claim No 4 named as the defendants The Migrant Helpline. It was issued on 13 January 2004. It sought damages for breach of the Human Rights Act and an injunction. It went through a number of interlocutory stages before failing in the Croydon County Court. On 18 June 2004 Mr Justice Buckley refused permission to appeal. On 21 July 2004 Mr Justice Wakerley dismissed the same application following an oral hearing. Although there have been subsequent applications, none has resulted in any success.
11. Claim No 5 was the first of a series of claims against NASS and the Home Secretary to do with asylum support. Claim No 5 was issued in Croydon County Court on 15 January 2004. It was dismissed on 21 January 2004.
12. Claim No 6 was against the same defendants. It was issued on 21 January 2004. It was struck out on 8 June 2006 because no steps had been taken for more than two years.
13. Claim No 7 was also against NASS and the Secretary of State. It was an application for permission to apply for judicial review. It sought emergency accommodation and support, and it alleged breaches of Article 3 of the European Convention on Human Rights. On 19 May 2004 Mr Justice Collins refused permission. He described the asylum claim as manifestly ill founded and the factual account of Mr Kumar as being wholly unsatisfactory.
14. Claim No 8 was in the form of an action for damages for professional negligence against Alan Edwards & Co, issued on 8 April 2004 after various interlocutory orders had been made. The proceedings ran aground before Master Eyre on 26 August 2004, and subsequently before Mr Justice McCombe on paper and Mr Justice Pitchers following an oral hearing when they refused permission to appeal.
15. Claim No 9 was in the form of an action for damages against the Home Secretary for breach of the Human Rights Act and the Data Protection Act 1988. It was issued on 15 April 2004 and it soon hit the buffers at interlocutory hearings. Again High Court judges subsequently refused permission to appeal, Mr Justice Simon observing that the appellant's notice gave no proper grounds and Mr Justice Royce eventually dismissing the application for permission following an oral hearing.
16. Claim No 10 was against the Department of Constitutional Affairs. It harked back to claims 1 and 2. It was issued on 24 June 2004. It was struck out by a district judge on 19 November 2004.
17. Claim No 11 also named the Secretary of State for Constitutional Affairs. It was in the form of an application for permission to apply for judicial review of the handling of Claim No 10. It was issued on 13 October 2004. On 22 October 2004 Mr Justice Munby refused permission on the papers, concluding that the proceedings were an abuse of process. Mr Justice Moses refused permission following an oral hearing and made a general Civil Restraint Order for two years. That was on 8 November 2004. Mr Kumar appealed to the Court of Appeal with permission granted by Lord Justice Brooke and with the outcome that the general Civil Restraint Order was reduced in duration from two years to, I think, one year.
18. Claim No 12 was an application for permission to apply for judicial review against the Immigration Appeal Tribunal. It was commenced in March 2005. Mr Justice Wilkie refused permission, observing that the application was "without any merit".
19. Claim No 13 was brought against the Home Secretary in the Administrative Court alleging breach of the Human Rights Act and the Data Protection Act. On 27 April 2005 Mr Justice Wilkie dismissed it, observing that on the incomplete material lodged there was no sensible basis on which to form a view as to the nature of the claim sought to be made or its merits.
20. Claim No 14 was an application to the Employment Tribunal in Birmingham made on 10 October 2005. It was against an employer following a very short period of employment. There were also named individual respondents. I should add at this stage that it is well established that the language of Section 42 is wide enough to accommodate proceedings in Employment Tribunals (see Attorney General v Douglas [2001] EWHC Admin 610). That application - alleging unfair dismissal, wrongful dismissal, sexual orientation discrimination and race discrimination - was subjected to the pre-hearing review procedure. At a pre-hearing review on 7 April 2006 the chairman dismissed the claims of unfair dismissal and wrongful dismissal. The sexual orientation discrimination claim was dismissed on withdrawal. So far as race discrimination was concerned, the application was not at that stage dismissed but Mr Kumar was ordered to pay £500 as a deposit on the grounds that his claim had "little reasonable prospects of success". On 17 May 2006 the application was struck out because Mr Kumar had failed to pay the deposit.
21. Finally Claim No 15 is in the form of an action from the Scottish Courts against the Advocate General in Scotland. It was commenced on 4 April 2006. It pleads claims by reference to the Data Protection Act and the Freedom of Information Act. As I understand it, that action in Scotland is still on-going. We are informed by Mr Barr that there is some kind of hearing connected with it in the court in Edinburgh today. As I have indicated, Mr Kumar has not sought an adjournment of this application because of the distraction of that Scottish case.
22. Mr Barr has informed us of the latest two further Scottish proceedings. We know nothing of their detail and we do not propose to take them into account.
23. Against the background of the 15 items of litigation to which our attention has been drawn, I turn to the application under Section 42. Mr Barr submits that the course of litigation exhibits the following characteristics of the vexatious litigant: Mr Kumar re-litigates the same or similar issues; his actions lack reasonable grounds; he does not accept judgments against him; he conducts proceedings aggressively and he has repeatedly acted in such a manner. So far six of the 15 cases relate to issues of immigration and asylum, a further four relate to asylum support and accommodation. Seven of the 15 claims were struck out, five of them being claims for which permission was required and resulted in a refusal of permission. Two applications for injunctions were dismissed.
24. None of the claims has resulted in a substantive hearing. None of the claims or applications has resulted in a successful outcome save in the Court of Appeal when the general Civil Restraint Order was reduced in its duration.
25. It is apparent from some of the litigation that claims of the utmost extravagance were being brought with damages in large sums being pleaded. At one point in relation to Claim No 1 there was a claim for £1,000,000. In the Employment Tribunal proceedings - claim 14 - Mr Kumar sought £67,000 as a compensatory award for unfair dismissal in relation to employment which had lasted for only four days. The documents promulgated by Mr Kumar are littered with serious and unfounded allegations against other persons. He regularly alleges that civil servants have made false statements. He alleges even that Mr Justice Pitchford "deliberately ignored relevant material" and that an order had been made against him in bad faith. The claims are not formulated in a coherent and intelligible manner.
26. As I have observed, this litigation history began within a short period of months following his arrival in this country. It appears to continue unabated whether Mr Kumar here or in Scotland. The fact that he resides now in Scotland is not a bar to the making of an order in this court, contrary to Mr Kumar's assertion.
27. In my judgment this is an extremely strong application for an order under Section 42, and I would make such an order. The Civil Restraint Order is restrictive of Mr Kumar's activities to some extent, but he litigates more widely than that order can possibly restrain. It is in my judgment necessary to make the order under Section 42. It goes without saying that, in reaching this conclusion, I am wholly unimpressed by Mr Kumar's applications within these proceedings to have the Attorney General's application struck out or delayed. All his applications in that regard should, in my judgment, be refused.
28. Finally - and this bears repeating although it is not limited in its application to the present case - vexatious litigation is extremely detrimental not only to the defendants and respondents who are needlessly troubled and put to considerable expense, expense which they rarely recover even when costs orders are made as they have been on many occasions in relation to Mr Kumar. This court has to consider the interests of those existing defendants and respondents and also foresee the defendants and respondents in the future. However the public interest, expressed through the making of an order under Section 42, is a wider interest than is embraced simply by the litigants selected now or in the future by Mr Kumar. When a vexatious litigant litigates unreasonably he imposes strains on the civil justice system, eating up court and judicial time which could be put to better use for the disposal of bona fide cases which have to wait longer for a hearing as a result of the conduct of vexatious litigants.
29. I bear all those things in mind in concluding that the order should be made under Section 42 in respect of Mr Kumar.
30. MR JUSTICE BEAN: For the reasons given by my Lord I would make the order for which the Attorney General applies. I would also dismiss Mr Kumar's applications and cross-applications.
31. MR BARR: It is right that I point out there is one factual error which I do not think will affect the outcome, but I raise it. In action 11 the Court of Appeal substituted an ECRO for the GCRO. The duration remains the same.
32. LORD JUSTICE MAURICE KAY: The duration was the same.
33. MR BARR: I would like to confirm that when the order is drafted we may attach a penal notice to it. It was something that was applied for and I think there is a practice direction. It is Practice Direction B to Part 40 at paragraph 9.1:

"Non-compliance with a judgment or order

An order which restrains a party from doing an act or requires an act to be done should, if disobedience is to be dealt with by an application to bring contempt of court proceedings, have the penal notice endorsed on it ..... "

That is what this order is. There is a note -

34. LORD JUSTICE MAURICE KAY: An order not to do something.
35. MR BARR: Yes. There is authority that says the usual consequence of a breach is imprisonment.
36. LORD JUSTICE MAURICE KAY: Penal notices are not universal in Section 42 orders, are they?
37. MR BARR: I do not have great personal experience myself.
38. LORD JUSTICE MAURICE KAY: I remember someone in your position on a previous occasion - - we did look into it at one point. Those behind you will know.
39. MR BARR: Yes. They have tipped me off to the fact that it is something that has been raised before. They instruct me that the answer is to look at the practice direction to which I have just referred; and because of that - because the consequence of disobedience might be that contempt proceedings might lead to imprisonment - it would be right to attach a penal notice.
40. LORD JUSTICE MAURICE KAY: What you are contemplating is not specific, but a person the subject of a vexatious litigant order may not apply for leave but simply issue proceedings in as many locations as he thought he might get away with without it coming to anyone's attention that he was the subject of an order.
41. MR BARR: Yes. In the facts of this case although Mr Kumar has regularly targeted the same defendants, he has also on occasions brought unmeritorious proceedings against others. Of course, if he were to do that again those unsuspecting defendants might not know or have actual knowledge of the Section 42 proceedings.
42. LORD JUSTICE MAURICE KAY: What happens once an order is made? It is distributed to all courts.
43. MR BARR: My understanding is that it is certainly published - - I think it is published in the Gazette and it goes to the court centre website.
44. LORD JUSTICE MAURICE KAY: You may have your penal notice on this order. So is there anything else?
45. MR BARR: No. I think you will be aware that it is not the Attorney General's usual practice to seek costs in these matters.
46. LORD JUSTICE MAURICE KAY: It does not seem to be Mr Kumar's practice to pay them when ordered.