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
		21st July 2008

1. LORD JUSTICE RICHARDS: I will invite Mackay J to give the first judgment.
2. MR JUSTICE MACKAY: Her Majesty's Attorney General has made a claim under section 42 of the Supreme Court Act 1981 against these two defendants, Daniel Ford, sometimes described as Captain Ford and sometimes as David Sayers, and his wife Liubov Ford. I will refer to them as "Mr and Mrs Ford" in this judgment.
3. The allegation is that they have habitually and persistently, without reasonable grounds, instituted vexatious civil proceedings and made vexatious applications within civil proceedings, either instituted by themselves or others. Section 42(1), in its material part, reads thus:

"42.——(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 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..."

4. That order is an order that:

"(a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;

(b) any civil proceedings instituted by him... before the making of the order shall not be continued... without the leave of the High Court; and

(c) no application (other than one for leave under this section) shall be made by [that person], in any civil proceedings instituted in any court by any person, without the leave of the High Court..."

5. To obtain such an order, the Attorney General has first to satisfy the court that the person against whom the order is sought has indeed habitually and persistently instituted vexatious civil proceedings or made such vexatious applications. If that is proved, the court then has a discretion whether to make the order sought or not. That exercise is at the court's discretion, as described in Attorney General v Barker [2001] 1 FLR 759 at 760C, namely it is an assessment as to where the balance of justice lies, taking account, on the one hand, of a citizen's right to invoke the jurisdiction of the civil courts; on the other, to provide members of the public with a measure of protection against abusive and ill-founded claims.
6. The component of "habitually and persistently" indulging in the described activity usually involves repeated reliance on essentially the same cause of action, with occasional variations, after that has been ruled on adversely, the automatic challenge of every adverse decision on appeal and a refusal to take notice of or give effect to orders of the court. In a nutshell, the vice is that of keeping on litigating when earlier litigation has failed, and when, on any rational basis or assessment, the time has come to stop: see Barker 764F-H.
7. It is established that in considering the making such an order, the court is entitled to rely on the conclusions of the judges in the underlying proceedings, where such judges have described or found those as vexatious or an abuse of the process of the court.
8. The hallmarks of vexatious proceedings are those which have little or discernible basis in law, and their effect, whatever the intention may be, is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant. They also involve an abuse of the process of the court itself. That is to say, using the court for a purpose significantly different from its ordinary and proper use.
9. Although this power to restrain by the means of such an order is truly described as a drastic restriction of a person's civil rights, there must come a time when it is right to exercise it to protect opponents harassed by the worry and expense of vexatious litigation, and because the resources of the court system and the judicial system are fully stretched by those who wish access to justice on realistic and legitimate grounds and should not be expended on those without genuine grievances: see Attorney General v Jones [1990] 1 WLR 859 at 865C.
10. Bearing those principles in mind, I must now turn to the underlying litigation. The common thread in nearly all of the matters in which the defendants have been involved is a residential property, 58 North Street, London SW4, a corner property bounded on its flank by Turret Grove. There is an area behind the house, number 58, on which stands a garage-type building, various described as "the Coach House" or, to give its postal address, "2A Turret Grove". In all events, it is a building separate from the house, number 58. The Coach House had been converted by the defendants to living accommodation.
11. Over many years there has been a complex history of litigation, characterised by aggressive refusals, as the Attorney General claims them to be, on the part of the Fords to accept the authority of the courts. It has led to two prison sentences for each of the defendants for contempt of court. On one occasion Mr Ford is described as having committed clear perjury. On another, a judge, after a lengthy trial, described much of his evidence as untruthful. With relatively few exceptions, all applications and appeals have failed, and many have been found to be unfounded. Costs orders have been made. They have been no deterrent. They have been ignored.
12. It is appropriate to endeavour to summarise the underlying claims leading to this application. They are set out in three witness statements provided by the Attorney General. The first dated 20th July 2006, from a solicitor in the Treasury Solicitors, the second dated 3rd November 2006, and the third 11th June 2008. I will not be able to give the details of every step or application in every one of these actions or applications. In some cases transcripts of hearings are not available. It is not surprising, given the length and extent of them.
13. Claim 1 was Colyer and Others v David Sayers in Wandsworth County Court. This claim was instituted by the three tenants of 58 North Street, which is split into three flats: A, B and C. They claimed leasehold enfranchisement and brought the claim against the registered landlord, David Sayers, said to be absent and not responding to correspondence.
14. On 21st February 2001 a Deputy District Judge ordered that the requirements of notice for the proceedings should be waived and that the freehold interest of the property should be transferred to the tenants on payment into court of a price to be determined by the Leasehold Valuation Tribunal (LVT). This has been known as the "Vesting Order". It is the key order in this affair. The Fords have been trying to overturn it now for something over 5 years. Despite their many efforts, it remains standing and valid.
15. More than 2 years later, in July 2003, the Fords returned to the UK, having been living in Gibraltar, and applied to be joined into the action and have the order set aside. Mr Ford swore an affidavit, saying that he had acquired the site on which 58 North Street stood by squatting on it, against the wishes of its developer, a man called David Sayers, who owed him money for work he had done on the property many years before. He said he had been in adverse possession for some 22 years and was, as he put it, "the common law owner" and had built the Coach House on the land. His application was dismissed by District Judge Gittens on 22nd September 2003 with costs. He appealed. His application for permission to appeal was refused on paper by His Honour Judge Behar, and he renewed his application for permission to an oral hearing, which was dismissed on 15th December 2003 by the same judge.
16. It was on this occasion that Mr Ford admitted that his original affidavit was false, to his knowledge (ie he had committed perjury). He now said that he was in fact David Sayers and he was, therefore, the freehold owner of the property. He did not succeed in getting permission to appeal. It is said by Mrs Ford today that Judge Behar said he could bring a fresh claim if he wanted to. The route to appeal the Vesting Order was at this stage exhausted, but there were a number of further applications.
17. There was apparently an attempt to appeal the order for costs that had been made by District Judge Gittens to a different judge on 2nd February 2004. That was dismissed as having no prospects of success. There was a further application for permission to appeal, dismissed by His Honour Judge Walker on 4th March 2004. We will meet Judge Walker again later in this account. The Fords then endeavoured to apply for permission to appeal to the High Court, but that was refused after an oral hearing. Eventually, the attempts to appeal went right up to the Court of Appeal itself and were finally dismissed on 13th December 2005.
18. On 29th June 2006 there was a further hearing, which was the culmination of an application by Mr Ford to the same County Court, in the same action, for an order that the proceedings before the Leasehold Valuation Tribunal be discontinued on the grounds that he was now proven to be the owner of the relevant land. He said he misled the first court to which he applied with his original account of his ownership of the land because he was concerned that he did not have the ability to prove that he was also using the name "David Sayers" and he was now in the position to do so, he thought. This was a three-day action in front of the judge, at which, initially, the Fords were represented by counsel, I think for the first day. A judgment was given that Mrs Ford describes as "crucial".
19. Like so many judgments that she stresses in this case, the Fords picked the plums out of it and reject the pastry. The crucial findings that the judge made were these: he recited at length the litigious history, and by then it was quite lengthy, and then the evidence as to who Mr Ford was. It is worthy of note that the claimants in the action took no position on that issue and did not positively advance any case and left it to the judge to decide whether he was satisfied. Having summarised the evidence, he said this:

"... on the basis of this evidence, and while there remains in my mind considerable concerns as to the bona fides of the Fords, I feel that on the evidence from the Fords, and taking account of the absence of positive evidence to the contrary, I am just persuaded on the balance of probabilities that I should find as a fact, for the present purposes of this stage of this action, that Captain Ford and the David Sayers who held the freehold of the property at 58 North Street are one and the same person. This is a finding which might, I suppose, conceivably have to be revisited if fresh evidence were to emerge..." (Emphasis added).

20. He then recited the terms of section 26(5) of the Leasehold Reform, Housing and Urban Development Act 1993, and turned to consider whether he should give directions under section 26(5)(b), he having power under that subsection to:

"... give such directions as the court thinks fit as to the steps to be taken for giving effect to those rights..."

And in so doing, he considered whether there was any merit in the application for a stay of further proceedings or whether, as Mrs Ford, who had by then taken over the role of advocate, had argued, that the claimants should be made to start all over again. As Mrs Ford stresses, she had a barrister's opinion, the barrister who started that case by representing her husband, to the effect that there was no power in the court to do other than as she was seeking to persuade it, and require the claimant to recommence the enfranchisement proceedings.

21. The judge refused to do so. He said that he regarded the Vesting Order as valid and all attempts to appeal or vary it had failed. He described the whole application on which he had spent the last 3 days as no more than an attempt by the Fords "for no legitimate reason to go behind the orders already made in this court and in respect of which the Fords have exhaustively pursued all avenues of appeal, all entirely without merit on any occasion". He also pointed out that the result of the exercise would likely be illusory:

"What benefit this whole exercise is supposed to confer on the Fords is beyond me."

22. Since, without dwelling unduly on its technicalities, the effect of the application was to require the LVT to revalue the interest which the tenants were acquiring, which it had previously valued at £6,550, but this time omitting the value of the Coach House land, the result of that exercise, when later carried out, was exactly as the judge predicted: it remained the same.
23. This claim, Claim 1, will be a recurrent thread through the rest of the history.
24. Claim 2 was proceedings brought against the Fords as defendants, claiming possession of part of the land, more accurately to be described as "the premises situate at" 2A Turret Grove and "registered at HM Land Registry under title numbers SGL425046 and TGL1493, including the extension of the Coach House situated thereon". In simpler language, this was some other part of the land at the back of number 58, not including the land on which the Coach House itself stood, which was land in respect of which the registered proprietor was David Sayers.
25. The Fords made an interlocutory application to strike this claim out. That was refused. They made unsuccessful attempts for permission to appeal to the High Court, refused; and the Court of Appeal, refused. The claimants were granted an interim injunction restraining the carrying out by the defendants of certain works on the land. Appeals by the defendants to the High Court and to the Court of Appeal against those were all refused.
26. The substantive hearing of this claim, in which the Fords were asserting that they owned the disputed land, took 8 days. The Fords were claiming more than 12 years' continuous adverse possession. An order for possession was made at the end and the Fords' counterclaim was dismissed. In his judgment, which ran to over 65 pages, delivered on 23rd August 2004, His Honour Judge Dean described the affidavit which Mr Ford had put forward in his original application to the court in Claim 1 as "manifest and serious perjury, produced with a view to deceiving the court". He said he could place no reliance on his evidence and that much of his evidence at the trial was untruthful. That possession order was appealed to the Court of Appeal. The appeal was dismissed and the application for permission to appeal was dismissed. It is right to point out that no proceedings have ever been taken against Mr Ford charging him with perjury.
27. Then there followed committal proceedings by the claimants for the defendants' failure to comply with the order. His Honour Judge Harris said the defendants had treated the order with "utter contempt and disregard". He made an order declaring that they were in contempt of court and they would be committed for 28 days, suspended on terms. The defendants' appeal to the full court was unsuccessful. Mrs Ford told the Court of Appeal in terms that they had no interest in voluntarily leaving the land. In due course an order was made against both, committing them to prison for contempt for 28 days. On their release they immediately resumed their occupation of the Coach House and of the land and were ordered to be imprisoned for a further 42 days for further contempt.
28. They appealed the Court of Appeal, as of right. That was dismissed, Tuckey LJ holding in his judgment that the Fords had ever since His Honour Judge Dean's order deliberately flouted it. Scott Baker LJ said that their attitude was "whatever the court decides, they are right, they are above the law". So up to this stage there had been 20 or more applications or hearings in the course of this claim and costs orders in excess of £25,000 made against them, together with the costs of the hearing itself. None of these had been paid.
29. Claim 3 was an unsuccessful claim about Mrs Ford's immigration status. I see no light shed upon this application by it.
30. In Claim 4 there was some success achieved. The Fords obtained permission to apply for judicial review of the Leasehold Valuation Tribunal's decision regarding the valuation of the property for enfranchisement purposes. Mrs Ford makes the valid point that to get permission they had to go all the way from a written refusal, a refusal at a renewed oral application to the Court of Appeal, where they were this time successful. On 1st March 2005 Collins J granted relief.
31. Again this is a decision from which the Fords seek to extract the favourable parts and reject those with which they are not in agreement. He quashed the earlier decision of the tribunal, the Land Registry having accepted that it was in error in including, in the interest to be transferred to the tenants, the Coach House land, which was registered under the registered title TGL203329. That was always registered to Mr Sayers, and it was not contained in the leasehold title of 58A North Street, the ground floor flat. The order that Collins J made, having quashed the earlier decision, was that he was remitting the matter to the LVT "to be reconsidered in the light of the facts, as they are now known to be". It is entirely unsurprising that he made that order. It was not the basis of his quashing order that there was a fundamental flaw in the Vesting Order or anything like it; it was that a part of the land had been mistakenly included in the valuation, as if it was going to be transferred to the tenants, that should not have been included and should be excluded.
32. The result of that order was much activity. At the Fords' request, Lightman J stayed the hearing fixed by the LVT, but that was then, in the light of His Honour Judge Walker's judgment, lifted by Morgan J.
33. The defendants made strenuous attempts to stop the LVT re-hearing this claim until the hearing of their appeals and/or judicial review claims in relation to it. In the end, following their adjudications and bankruptcy, with which I will deal with below, and the defendants having vigorously opposed any hearing being conducted by the LVT before the outcome of their various appeals, the position is that Lloyd Jones J ordered that the official receiver should determine whether the appeal to the High Court against His Honour Judge Walker's judgment should continue. That was discontinued on 12th November 2007 by the official receiver. Notwithstanding their lack of status caused by their bankruptcy, the Fords appeared at the eventual LVT hearing on 21st November 2007. They were allowed to address the tribunal. True to form, they sought a postponement, because they were appealing the bankruptcy order made against them. The LVT decided to continue and proceed with its revaluation exercise. It produced precisely the result Judge Walker had predicted, a figure exactly the same as its original valuation in 2001. The defendants attempted, for all their lack of standing, to appeal that decision and apply for judicial review. That was all unsuccessful.
34. Claim 5 was a claim for defamation against the London Borough of Lambeth relating to the property. The details of it are perhaps immaterial. Gray J struck it out under CPR 3.4 on the grounds that there was no basis for it. An application for permission to appeal was made to the Court of Appeal, which included an allegation of bias by Gray J. That was refused.
35. Claim 6 was an application for judicial review of a decision by the London Borough of Lambeth to consult on the defendant's application for a lawful development certificate and to serve notice of enforcement proceedings. Collins J considered this on paper and described it as "wholly misconceived" and said it "should never have been brought". At an oral hearing of a renewed application, Ouseley J described it as "utterly hopeless". It was pursued to the Court of Appeal for permission to appeal. That was refused.
36. Claim 7 was in the Chancery Division, the title Ford v Galpin. It was a clear attempt in proceedings issued in December 2004, therefore after the possession order and final refusal of permission to appeal, to reassert a claim on the Fords' part to the freehold interest in the land which had been subject to Judge Dean's possession order. Master Teverson struck the main claim out as an abuse of the court's process and stayed the remainder. Permission to appeal was refused.
37. Claim 8 was another successful claim brought by the Fords against the Commissioner of Police for the Metropolis. It was based on an allegation of breaking and entering by the police, trespass, wrongful arrest and false imprisonment arising out of the execution of a warrant for the possession in Claim 2. The Master struck the claim out. Collins J granted permission to appeal. The defendants applied for summary judgment. There was a hearing before Grigson J, upon which there was a degree of success for both sides, as it may be described, but the claim is now settled, as we are told by Mrs Ford, and we are happy to accept it from her, although we have not seen documentary evidence of it, by the Commissioner agreeing to pay them £2,000 and waiving any costs orders he had in his favour. That was a success for the Fords.
38. Claim 9 was against Wandsworth County Court. It was an application for judicial review of its order dismissing an application by the defendants to set aside another order relating to the enforcement of the possession order. That was refused on paper and at a renewed hearing by Sullivan J, and the Court of Appeal refused an application for permission to appeal.
39. Claim 10 was a statutory appeal by Mrs Ford relating to her immigration status, which was dismissed as having no real prospect of success and clearly unfounded.
40. Claim 11 was in the High Court Bankruptcy Court. As a result of costs orders in favour of London Borough of Lambeth in Claim 6, which had not been paid, statutory demands were served, which the defendants applied to set aside. That application was dismissed by the registrar, as was an appeal to Hart J.
41. The first return date of this application was on 28th November 2006. The matter came before a differently constituted Divisional Court, which was not happy with the level of disclosure that had been made, and adjourned the application to clarify principally two things: firstly, the position concerning the defendants' judicial review application 5785/06, relating to Judge Walker's judgment of 29th June 2006 at Wandsworth County Court and the original Vesting Order of 21st February 2001; secondly, their application for permission to appeal the same order of His Honour Judge Walker. There was, then, not available that which would have been all-important, namely a transcript of Judge Walker's judgment, which we now have.
42. An important event was that on 12th October 2007 the defendants were adjudicated bankrupt. The official receiver, on their behalf, discontinued both challenges, but the defendants have ignored that and purported to pursue their own challenges in the form of eight new claims, as I will call them, although some of them are applications, properly so called, brought since the section 42 proceedings have been in being.
43. Claim 15 was launched against London Borough of Lambeth in the Chancery Division. It was an attempt effectively to appeal the bankruptcy order, seeking a stay of execution, and was dismissed by Kitchin J on 5th November 2007.
44. In that application the Fords were claiming a witch hunt against them by the London Borough of Lambeth. They make no bones about it, and in her oral submissions to us today Mrs Ford renewed the allegations. She says there is conspiracy between the London Borough of Lambeth, the Attorney General's Office and the tenants of this property to get rid of them from their lawfully-owned property.
45. Claim 16 was a further attempt to appeal His Honour Judge Walker's decision, this time in the Queen's Bench Division. It was dismissed by Wilkie J on the basis that the applicants had no standing, as the official receiver had authority to abandon the application if he so elected. He described the application as "misconceived" and in due course the official receiver did discontinue the application.
46. Claim 17 was a claim for judicial review against the LVT in connection with its decisions made on 23rd November 2007, alleging bias, breach of natural justice and ignoring of Convention rights. That was discontinued by official receiver on 29th April 2008.
47. Claim 18 was an application to the Lands Tribunal on 27th December 2007 for permission to appeal its decision of 23rd November 2007. On 21st February 2008 the Lands Tribunal cancelled the registration of the application, on receiving communications from the official receiver and on grounds of lack of standing.
48. Claim 19 was an attempt to commence judicial review proceedings against the official receiver on the grounds of his decision not to appeal Judge Walker's judgment, his decision to oppose their attempted application to the Lands Tribunal against the LVT's decision and his decision to approve the transfer of the land on their behalf. There was a stay granted by Lloyd Jones J on 15th May 2008, pending these proceedings. The claimant says that these are incompetent proceedings and that any challenge to the official receiver's actions and decision should be made under section 303 of the Insolvency Act 1986, not by way of judicial review.
49. Claim 20 was judicial review of a decision of the London Borough of Lambeth, in particular its decision to grant planning permission on land adjacent to the Fords' property, alleging malpractice and corruption. That was discontinued on 29th April 2008 by the official receiver.
50. Claim 21 was an application for judicial review against Wandsworth County Court and the decision in connection with transfer of title. That, too, was discontinued by the official receiver.
51. Claim 22 was a judicial review against Lambeth Council, who had issued an enforcement notice in connection with 2A Turret Grove. The defendants sought to challenge that. That appears, from an order we were shown today, to have been unsuccessful.
52. Claim 23 was another attempt to challenge by way of judicial review the decisions of the official receiver (as described above). The Attorney General says this is an incompetent route for the same reasons given before.
53. In their written arguments, which have been very competently drafted, the defendants say this: the Attorney General proceeds in ignorance, or apparent ignorance, of the fact that they have now proved their title to the Coach House, TGL203329, since 1981. In my judgment, the answer to that is that is indeed shown, to the extent and in the way set out by Judge Walker in the excerpt from his judgment I have given above, but it does not support the Fords in their attempts to subvert that which I am sure they are bent on subverting and removing, the original Vesting Order. They are therefore, they say, the victims of this miscarriage of justice and the crucial new evidence that ought to influence this application is that His Honour Judge Walker has found the defendant to be one and the same as David Sayers. The problem, as I have indicated in the course of dealing with that judgment, is that, in the judgment of the judge who made it, it was of no benefit at all to the defendants' cause and that he had a discretion which he exercised to proceed to give directions to the LVT, with the results that I have set out.
54. Mrs Ford made clear and forceful arguments to this court. She is a good advocate, she is an intelligent person, she has great experience and even greater determination. She says that the adjacent plot to them has changed hands recently at a grossly inflated sum and believes there are corrupt dealings and an organised conspiracy, as she calls it, between the local authority and the developers, part of whose aim is to make the Fords homeless, and that the tenants have a common interest with these people: if planning permission has been granted to the next door landowner behind closed doors, excavations will take place which will destroy their property, and they do not want to make a fair and proper offer to acquire it.
55. She adds, perhaps with more relevance, this valid point, which we have had to consider, that to achieve success as a litigant in person it is undoubtedly right that an element of courage and persistence is needed. In my judgment, Mrs Ford is short of neither quality. Her best example is the judicial review claim where she was undeterred by a written refusal and an oral refusal and went to the Court of Appeal, got her permission and got an order from the decision of Collins J which was, at least in part, what she wanted, though sadly it was not in the end satisfactory to her.
56. As to their failures, which are far more frequent than their successes, to put it mildly, most of those are, she says, due to judicial bias or disfavour against litigants in person, who are seen as a nuisance to the court system, and who are not given proper attention by the courts, and therefore do not receive proper justice.
57. At the end of it all, her submissions amount to this: all adverse decisions against her and her husband are wrong, and, if they are only given one more opportunity to demonstrate that, they will succeed. Her approach to this court is to say that either those decisions were wrong, or that they were arguably wrong, and it would therefore be, in turn, unjust to make the order sought.
58. In my judgment this litigious history has all the hallmarks of vexatious litigation, and with minor exceptions is a reworking and revisiting, in different courts and different jurisdictions, of the same points. Adverse decisions are ignored and routinely and automatically appealed. Costs orders have been unpaid. The pace of litigation has, if anything, quickened during the currency of this section 42 claim. In the past, false evidence has been advanced and untruthful evidence given and, with the exception of claims 4 and 8, and claim 4 yielded a fruitless victory, the successes have been few. They have been unsuccessful in almost every application and action, and now nearly 2,000 pages of documents are marshalled to substantiate this application. The aggregate of the other material which must be in existence somewhere relating to these claims must be many times that figure. Huge expense, delay and distress has been caused to opponents of this litigation, most particularly the three tenants of 58 North Street, who have had to wait all these years for their rights.
59. Days of valuable court time have been spent on essentially baseless and misconceived litigation. The defendants are unrepentant and unless restrained will undoubtedly devote their time to the continued prosecution of this litigation by all means they can imagine. In my judgment, this is a clear case where the need for the making of a section 42 order is made up. The result of that is that the defendants will have to satisfy a judge of the merits of any claim or application that they want to make hereafter.
61. LORD JUSTICE RICHARDS: I agree. I, too, wish to pay tribute to Mrs Ford for her sustained advocacy on behalf of herself and her husband. I am struck by the fact that in two of the claims out of which these proceedings arise the Fords have had a measure of success, notably in securing the quashing of the original decision of the Leasehold Valuation Tribunal, although the ultimate result on the fresh decision was exactly the same, and in securing a payment of compensation from the Metropolitan Police Commissioner in proceedings relating to the manner in which the warrant for possession was executed.
62. The fact that such successes have been achieved does take the Fords out of the normal run of those against whom civil proceedings orders under section 42 are sought by the Attorney General. Against this, however, must be set the large number of unsuccessful claims and applications which Mackay J has described. I am satisfied that, viewed as a whole, the history does reveal the hallmarks of vexatious litigation to which my Lord has referred. It is evident that the Fords, however genuinely motivated they may be, have been and remain intent on litigating when on any rational view the time has come to stop. I am therefore satisfied that the preconditions for an order are made out.
63. The court still has a discretion whether to make an order. It is important to bear in mind that an order does not preclude access to the court altogether, but subjects it to the filter of obtaining leave from a High Court Judge. The telling point made by Mrs Ford is that in the challenge to the Leasehold Valuation Tribunal decision permission to apply for judicial review was refused at first instance, both on paper and at an oral hearing, but was eventually granted on appeal. It does not follow, however, that there is any serious risk of meritorious claims or applications failing to get through the leave filter if a civil proceedings order is made. Applications for leave pursuant to such an order are examined with all appropriate care, in the knowledge that there is no further recourse if leave is refused.
64. A further concern expressed by Mrs Ford is that the making of an order against her and her husband will prejudice their position in injunction proceedings brought against them by Lambeth, or in other proceedings in which the Fords find themselves as defendants. In my judgment, that concern is misplaced. The court can be expected to decide any such case on the merits by reference to the evidence before it, not by reference to whether the Fords have or have not had a civil proceedings order made against them.
65. In all the circumstances, I am satisfied that the court should exercise its discretion to make an order. For those reasons, and those given by Mckay J, I would grant the Attorney General's application and make the order sought.
66. Let us just hear from Mr Tolley. The order in the form of the application can be made on the basis of our judgment.
67. MR TOLLEY: I am very grateful for that. I am perfectly happy to assist the court by drawing up the order in the usual terms and provide it to the associate, if that is of assistance.
68. LORD JUSTICE RICHARDS: Yes, please.
69. MR TOLLEY: My Lord, contrary to a submission that was made by Mrs Ford, the Attorney General's practice is not to seek costs in these applications, there is no desire to bump up costs for the sake of punishing the defendant, but I simply want to make a point, because your Lordships reserved to yourselves the question of costs arising out of the abortive hearing on the last occasion.
70. LORD JUSTICE RICHARDS: We did.
71. MR TOLLEY: I do not want to pre-empt any application by Mrs Ford made on behalf of the Fords, all I wish to say is I am not trying to use those instructing me's position on costs as any kind of bargaining chip, but merely invite your Lordships to take that into account.
72. LORD JUSTICE RICHARDS: You are not seeking costs of the proceedings as whole and you invite us to bear that in mind when considering the costs in relation to the wasted hearing last time.
73. MR TOLLEY: That is entirely my point. I am grateful, my Lord.
74. LORD JUSTICE RICHARDS: Yes, Mrs Ford.
75. MRS FORD: My Lord, I'm not sure if you're aware but the perjury, in fact charges were brought and discontinued against my husband, and accordingly -- according to the golden slate of British justice, the justice system, presumption of innocence, my husband remains innocent of allegations of perjury. County Court Judge had no jurisdiction to find my husband guilty of perjury and, therefore, as there've been -- I'm coming to application for permission to appeal, but I'm coming to it. There is also --
76. LORD JUSTICE RICHARDS: You said what you want about the perjury point. You have no knowledge in relation to the discontinuation of proceedings, have you?
77. MR TOLLEY: I am sorry, my Lord?
78. LORD JUSTICE RICHARDS: On the question about discontinuation of proceedings of perjury, discontinuance, is what we are told correct?
79. MR TOLLEY: My Lord, all I know is what His Honour Judge Dean found in his judgment. I do not have any knowledge of criminal prosecution or intended criminal prosecution.
80. LORD JUSTICE RICHARDS: So you are not able to help us one way or the other on the fact? Mrs Ford, what we can do about that is to add into my Lord's judgment, when he approves it, a reference to that point, to make clear what you have told us.
81. MRS FORD: My Lords, proceedings -- charges of perjury were discontinued and our solicitor (inaudible) wrote to my husband saying he is not surprised that they were discontinued due to the strength of my husband's defence to those allegations and for the perjury to take place there must be material involved in such perjury, and in this case there was no material whatsoever, because what -- the interest which my husband claimed as David Sayers, or as a partner with David Sayers, were one and the same. So, whichever way he claimed it, there was no material for criminal charges of perjury, and this is a criminal offence to succeed. Also you must be aware, my Lords, that there were other unsuccessful criminal prosecutions against us for affray against myself and twice for criminal damage against my husband. None of this criminal charges, though they were brought properly, ever succeeded.
82. LORD JUSTICE RICHARDS: So far as the perjury aspect is concerned, this court has relied, as it is entitled to do, on what was said by the County Court Judge, but as a matter of fairness to Mr Ford we will add in the point about criminal proceedings having been discontinued.
83. MRS FORD: We appreciate it, but -- we appreciate some of points in our favour made in your Lordship judgment. However, we believe that, not for the purposes of litigating but for the purposes of our good name, and for the purposes of interest of justice in general, we -- and for the purposes of maybe other people -- of other people, would not suffer in the same fate as it would be precedent case relied in the future proceedings against other litigants. We believe it's in the public interest to appeal this judgment and --
84. LORD JUSTICE RICHARDS: So you are seeking permission to appeal?
85. MRS FORD: Of course, my Lord, but I believe I said it in the previous proceedings but didn't believe I said it in this proceedings, we exhaust all our avenues and -- our avenues, not because we are vexatious, but because few of the cases are lodged in European Court, and you cannot lodge case in European Court of Human Rights if you do not exhaust all your domestic remedies?
86. LORD JUSTICE RICHARDS: Yes.
87. MRS FORD: So we believe this course will justify us appealing in the House of Lords. This is a complex matter, there were points in our favour, as your Lordships -- well, were not significant enough to persuade your Lordships, but we believe it's not a clean cut case; it's a complex case and we believe that in this matter, of not only restraining somebody but actually of tarnishing someone's reputation, because I honestly do not believe any judge, after being -- us being introduced as vexatious litigant, would -- whatever was said previously, would give us impartial hearing. Honestly, it's impractical. It's -- might be in writing theoretically, but in practice I genuinely believe it would prejudice any outcome of our future hearings. So we would like you to consider fairly our application for permission to appeal --
88. LORD JUSTICE RICHARDS: Before you sit down, on costs, last time round we did reserve the question of whether the Attorney should be required to pay any costs that you had incurred, of getting to court for that last hearing. What is said by Mr Tolley is that, bearing in mind that the Attorney General is not seeking the costs of these proceedings against you, we should make no order in relation to what happened last time. What do you say about that?
89. MRS FORD: Well, my Lords, our costs are -- well we cannot charge for time. Accordingly, our costs are insignificant and it's subsequently not worth your Lordships considerings of --
90. LORD JUSTICE RICHARDS: Thank you very much. As regards costs, there will be no order as to costs in relation to the proceedings, and that encompasses the costs thrown away by the adjournment on the last occasion. Permission to appeal is refused on the basis that an appeal has no real prospect of success.
91. MR TOLLEY: My Lords, just one very small point. If your Lordships are revisiting the draft judgment when it is transcribed, in describing the hearing on 28th November 2006, my Lord Mackay J said that the court was not happy with the level of disclosure made. I would simply want to invite the court to reconsider it. As I recall the position, and Mrs Ford may be invited to comment, it was simply that the court was concerned that the outcome of the challenges to His Honour Judge Walker's judgment would affect the outcome of the Attorney's application for a section 42 order. The difficulty presented was that your Lordships did not have a copy of His Honour Judge Walker's judgment.
92. LORD JUSTICE RICHARDS: The transcript was not available at that time, was it?
93. MR TOLLEY: The transcript was not available.
94. MR JUSTICE MACKAY: You call that disclosure? The judgment was 5 months old and they might have been a little concerned not have to it. It was said to be an important judgment.
95. MR TOLLEY: The problem, as I understood it, my Lord, and this is something that has been explained to me subsequently, is that His Honour Judge Walker had retired between the hearing and approving the transcript. Hence the delay in approving it. It was not that the judgment was available but not disclosed. As your Lordship will appreciate, the judgment was of assistance to the application.
96. MR JUSTICE MACKAY: I think we will consider your suggestions.
97. MR TOLLEY: I am grateful.
98. LORD JUSTICE RICHARDS: Thank you. No other factual points you want to draw our attention to? Thank you.
99. MRS FORD: Would your Lordships kindly make an order ordering transcripts of your judgment should be provided at public expense?
100. LORD JUSTICE RICHARDS: Yes, we will.
101. MRS FORD: Thank you, my Lord.
102. MR JUSTICE MACKAY: Do you want this back, which is your collective emails?
103. MRS FORD: Thank you, my Lord.
104. LORD JUSTICE RICHARDS: Thank you very much.