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 WC2A 2LL
		13th May 2008

1. LORD JUSTICE MAURICE KAY: There is before the court an application by Her Majesty's Attorney General pursuant to Section 42 of the Supreme Court Act 1981. The Attorney General seeks a civil proceedings order against Mr Haider Ali. The application was issued on 1st August 2007. At the time of that application, it referred to 44 claims issued by Mr Ali in the period since December 2004. 42 of the 44 were against the prison authorities or prison staff in one form or another. At that time, 10 of the claims had been struck out, and on 3rd October 2006 His Honour Judge O'Brien in the Cambridge County Court had made a General Civil Restraint Order.
2. Thereafter, Mr Ali brought 13 further claims, which came before the Cambridge County Court as applications for permission to proceed, notwithstanding the General Civil Restraint Order, but permission was refused in the 13 cases. I should add at this stage that there are, I think, three other cases in which permission to issue or proceed has been granted. Faced with this multiplicity of litigation, and notwithstanding that 23 or so cases were the subject of strike-out orders or refusals of permission to proceed, His Honour Judge O'Brien made a further order on 18th April 2007, staying all of Mr Ali's outstanding claims until he satisfied the court that he was fulfilling his duty to assist the court pursuant to CPR 1.3.
3. That was the background that led to the present application. I shall refer to it in a little more detail later, but it is necessary to have summarised it at this stage because the hearing today commenced with an application made by Miss Burge on behalf of Mr Ali to adjourn today's hearing. The basis of that application was that Mr Ali had only instructed his present solicitors quite recently, in the middle of last month. There was then an application for public funding, which had a low financial limit for a time. That limit was not removed until last Thursday, and it was only on Friday of last week that the solicitor was able to see Mr Ali in prison for about 2 hours, in what were no doubt difficult circumstances.
4. Miss Burge sought an adjournment on the basis that the instructions she has support the view that there may be merit in a significant number of Mr Ali's cases, and that the underlying problem may be one not of an absence of merit, but of shortcomings in the formulation of his cases, all of which he has formulated as a litigant in person. She sought the adjournment on the basis that an adjournment of some few weeks might enable the matter to be investigated further by Mr Ali's new solicitors, and that she might thereafter be able to make good the submission that she was making on instructions about the underlying merits.
5. We refused that adjournment on the basis that, to the extent that the application under Section 42 relies on matters of existing adjudication and orders, it is not for this court to go into the underlying merits of those cases. That is clear on long-established authority, in particular Attorney General v Jones [1990] 1 WLR 859 at page 863. We took on board the fact that in relation to the cases which have not been struck out, and which are not the subject of a refusal of permission to proceed, there is simply a stay, no order having been made reflective of any merit or absence of merit in those cases.
6. Mr Bourne indicated his acceptance of the position and said that he was content to pursue the application on the basis of the struck-out cases and the cases in which permission to proceed has been refused. He seeks no inference to be drawn about any absence of merit in the stayed proceedings. However, he relies on the fact that the stay was imposed in each case on the basis that Mr Ali, if he is to lift the stay, must establish to His Honour Judge O'Brien's satisfaction that he is not in breach of CPR 1.3, which reads:

"The parties are required to help the court to further the overriding objective."

(That objective being set out in CPR 1.1).

7. It seemed to us that in those circumstances the matter could fairly be resolved today, and the interests of justice did not call for an adjournment. In reaching that conclusion we also took account of the fact that the application was issued as long ago as 1st August 2007, and the fact that Mr Ali has only recently instructed solicitors, with no doubt a rush to obtain legal aid after that. This did not suggest that any prejudice that he might have suffered was not of his own making. However, so far as we can see, he has not in fact suffered any prejudice by the hearing proceeding today. We say at once that Mr Ali has been extremely well-represented by Miss Burge today. Accordingly, having refused the adjournment, we heard the application and I now give judgment on that.
8. The history of litigation between December 2004 and 1st August 2007 is set out in the witness statement of Anneke Dessens, filed on behalf of the Attorney General. It enumerates the actions (claims) numbering 44 in total, to which I have referred, and it narrates the strikings out, the General Civil Restraint Order and the refusals of permission that followed it. By way of summary, the 44 claims, and especially the 42 that were directed against the prison authorities or prison staff, in the widest sense of that word, included claims relating to the opening of legal correspondence by prison staff, claims of race discrimination and interference with religious rights pursuant to ECHR Article 9, claims of assault and inhuman treatment, claims of clinical negligence, claims of mistreatment of property and a failure to provide certain items of property (including prison clothes and a laptop computer), and so on.
9. The 10 claims that were struck out were struck out on the basis that they disclosed no reasonable grounds and/or they amounted to an abuse of process. As I have indicated, on the authority of Attorney General v Jones, it is not for us to go behind the adjudications. Those were claims which disclosed no reasonable grounds and/or were an abuse of the process of the court.
10. The General Civil Restraint Order was made because the judge was satisfied that the circumstances called for it and the test for imposition was satisfied. Again, it is not for us to go behind that finding. We must take it as a given that, prior to the making of the order, claims had been made which were totally without merit. Thereafter, up to the date of issue on 1st August 2007, there had been 17 unsuccessful applications for permission to pursue new claims, and four unsuccessful applications to make applications in existing cases. Once again, we accept, as we are bound to do, that those refusals were proper and that the new claims and the applications in previous cases, at the very least, were advanced in a way that made it inappropriate to subject the defendants to litigation formulated in that way. Similarly, as regards the stay of the actions that have not been struck out or subjected to a refusal of permission to proceed, the concern of the judge was an apparent failure to have regard to the duty under CPR 1.3, and once again we can do no other than take that as a given.
11. For an application under Section 42 to succeed, the Attorney General must satisfy the court that the subject of the application:

"42.——(1)... 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..."

That is the first part of the test. If satisfied about those matters, the court may make a civil proceedings order. That is the second stage of the test, the word "may" connoting the discretion to grant or withhold the making of an order, the first stage having been satisfied. The law on the meaning of "vexatious" and "habitually and persistently" is well known and is common ground in this case. It is most clearly set out by Lord Bingham of Cornhill Chief Justice in Attorney General v Barker [2001] FLR 759 at paragraphs 19 and 22. It is not necessary to set out the actual passages, there being no dispute about their relevance in this case.

12. In my judgment, there is absolutely no doubt that the Attorney General satisfies the first stage of the test in Section 42. She has established that Mr Ali has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings, almost entirely against the prison authorities and staff, and has made vexatious applications within those proceedings. I base that judgment on the 10 claims that were struck out as disclosing no reasonable grounds and/or as being an abuse of the process of the court, and the 17 unsuccessful applications for permission to pursue new claims, together with the four unsuccessful attempts to make further applications within previous cases since the making of the General Civil Restraint Order. I also place importance on the fact of the General Civil Restraint Order, and the fact of the reason for the stay being related to CPR 1.3.
13. Miss Burge has invited the conclusion that, at least in relation to matters that have not been struck out or subjected to a refusal of permission, and preferably by including those cases as well, we should see this case as one of incompetent formulation of claims, rather than the persistence in making claims that are lacking in legal merit. Limiting myself, as I do, to the 10 strike outs and the 17 unsuccessful applications for permission to issue new claims, together with the four unsuccessful applications to proceed in previous cases, I take the view that it is in itself vexatious to subject a defendant, or several defendants, to persistent litigation which is incompetently and unintelligibly formulated. I of course appreciate that Mr Ali has had a hard time in prison, has had to formulate his claims alone, and that he has health problems of one sort and another. Nevertheless, this is a large number of cases against related defendants that have been found not to disclose reasonable grounds and/or to be abusive or without prospect of success. In those circumstances, as I have said, I conclude that the first test is satisfied.
14. I therefore turn to the second issue, which is that of discretion. So far as that is concerned, Miss Burge urges us not to make an order under Section 42. She advances two main points in support of her submission. First, she says that it is plain that almost all of the claims relate to treatment in prison, and Mr Ali will soon be released from prison, it is thought within the next month or thereabouts. Miss Burge submits that that should produce a reduction in resort to litigation. So far as that is concerned, it is possible that it will. On the other hand, limitation periods run for a considerable time, varying with the cause of action and, moreover, it is within the experience of the court that those who do succumb to vexatious litigation habits, once they so succumb, do not always desist when the first and original target of their litigation is no longer in a position to give rise to further causes of action, whether real or perceived or neither. Accordingly, I attach little significance to Mr Ali's release date.
15. Secondly, Miss Burge says, on instructions, that Mr Ali is content to offer an undertaking to the effect that he will only bring claims through a solicitor, and that he will comply with any application to strike out claims which are not so brought. She refers to HM Attorney General v Flack as an illustration of such an undertaking being sufficient to dissuade the court from making an order under Section 42. In answer to that proposal, Mr Bourne submits that an undertaking would be insufficient protection for the following reasons:

(1) The General Civil Restraint Order has not stopped the making of unmeritorious claims, and if an order has not done so, why, he asks rhetorically, should it be supposed that an undertaking will?

(2) It is easier to police a Section 42 order than it is an undertaking.

(3) The court should be wary of accepting an undertaking from someone who has been found to be vexatious in his litigating, although Mr Bourne accepts that it is sometimes done, as the authority relied upon by Miss Burge makes clear.

(4) If the undertaking were to break down, any return of the Section 42 application could be both lengthy and expensive and would leave the public inadequately protected.

(5) Mr Ali has been to and instructed other solicitors on previous occasions. It is unsafe to assume that his current relationship with his new solicitors will survive, particularly if, for example, public funding of his proposed actions is not forthcoming.

In my judgment, those are cogent reasons for preferring the making of an order to the acceptance of an undertaking in the present case. I am persuaded by Mr Bourne's submissions, and in my view a Section 42 order ought to follow.

16. That leaves one final issue, namely whether a penal notice ought to be attached to that order. It is the experience of the court, and Mr Bourne has referred to it, that when a Section 42 order has been made it is not uncommon for the subject of it to find courts and places where he can commence litigation in contravention of the order, and that matters can continue in that way before someone with an interest finds out what has happened. Even allowing for the possibility, and I emphasise the word "possibility", that some of Mr Ali's stayed claims may, and I emphasise "may", have some merit, the totality of the picture presented by his litigation activity drives me to the conclusion that this is a case in which a penal notice ought to be attached to the Section 42 order. Miss Burge invites us to take a different view, particularly in view of the fact that Mr Ali has complied with the General Civil Restraint Order, at least in the sense that he has made applications for permission under the GCRO, even though they have been largely unsuccessful. I have regard to that fact, but it does not dissuade me from the view that a strong order ought to be made in this case so that it can apply in its fullness, particularly after Mr Ali has been released.
17. The final observation which I make, reflecting one of Mr Bourne's submissions, is that in this, as in any other Section 42 case, the court is conscious that it is making an order which is restrictive of a person's access to the courts, and that one is conscious of the constitutional importance of access to justice. However, a Section 42 order is not a prohibition on future litigation; it is the imposition of a condition. As the history of this case shows, if and when Mr Ali has a claim which has some merit, he will be permitted to advance it, as he has been in relation to, I think, two of the discrimination cases that are proceeding against the Prison Service, widely defined, and also a wholly unrelated claim for breach of contract against a commercial concern against whom he has a pleaded cause of action. If he has meritorious cases, particularly if he seeks to advance them in a properly formulated way (and if he is not in a position properly to formulate them, then properly formulated through legal advisers), then he will be permitted to litigate, but the onus ought, in my view, to be on him to satisfy a court before proceeding so that defendants can be protected from receiving claims that disclose no intelligible grounds and/or are abusive. Accordingly, for my part, I would make the order and attach the penal notice.
19. MR JUSTICE PENRY-DAVEY: In this case the court has had the advantage, unusual in Section 42 proceedings, of clear, concise and competent submissions made on behalf of both parties. In the result, I agree with my Lord that both aspects of the test have been amply met, and I too would make this order.
20. LORD JUSTICE MAURICE KAY: Thank you both very much.
21. MR BOURNE: My Lords, I am very grateful and there is no other application.
22. LORD JUSTICE MAURICE KAY: Thank you. As we both indicated in our judgments, Miss Burge, the court is most grateful to you and those who instruct you.
23. MISS BURGE: I am grateful, my Lord.
24. LORD JUSTICE MAURICE KAY: Thank you very much.