England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		30 July 2008

1. LORD JUSTICE MOSES:

Introduction

2. Mr Ewing has been declared a vexatious litigant. He seeks a declaration that he is not required to seek permission, under section 42(3) of the Supreme Court Act 1981 ("the 1981 Act") to bring proceedings for judicial review. In those proceedings he seeks to challenge a decision of the CPS to discontinue a private prosecution brought by Mr Ewing against a Mr Davis in respect of offences Mr Davis is alleged to have committed against a Mr Hayward.
3. The order under which Mr Ewing has been declared a vexatious litigant is a "civil proceedings order" under section 42(1A) of the 1981 Act. The issues is whether proceedings for permission to apply for judicial review are civil proceedings, even though the decision of the CPS was to discontinue a prosecution, and thus they were said to be a decision relating to a criminal cause or matter.

The statutory provisions

4. Section 42 of the 1981 Act (as amended) provides:

(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, [or

(c) instituted vexatious prosecutions (whether against the same person or different persons),]

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.]

[(1A) In this section -

'civil proceedings order' means 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 in any court before the making of the order shall not be continued by him without the leave of the High Court; and

(c) No application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court;

'criminal proceedings order' means an order that -

(a) no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and

(b) no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and

'all proceedings order' means an order which has the combined effect of the two other orders.

(2) An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

(3) Leave for the institution or continuance of, or for the making of an application in, any [civil] proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.

[(4A) Leave for the laying of an information or for an application for leave to prefer a bill of indictment by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant.]

(4) No appeal shall lie from a decision of the High Court refusing leave [required by virtue of this section.]"

5. It will be noted that section 42 contains no definition of what is meant by "civil proceedings" or "criminal proceedings". The statute only identifies the scope of the restrictions under a criminal or civil or all proceedings order. I should observe at the outset that the scope of a "criminal proceedings" order does not embrace the whole range of criminal proceedings. For example, there is no restriction on appealing by way of case stated from a criminal conviction pursuant to section 111(1) of the Magistrates' Court Act 1980. Such proceedings are plainly criminal proceedings yet there is no power to restrict an appeal even if the appellant is subject to a criminal proceedings order. Mr Ewing is not the subject of a criminal proceedings order and in any event did not require the permission of a High Court judge to appeal by way of case stated against the decision of the District Judge at Hastings Magistrates' Court that Mr Ewing's private prosecution against Mr Davis was an abuse of process (see The Queen on the application of Ewing v Davis [2007] EWHC 1730 at paragraph 3).
6. The distinction drawn between criminal and civil proceedings in section 42 as amended stems from the need to ensure that the High Court has power to restrict the institution of criminal proceedings as well as civil proceedings. Section 1 of the Vexatious Actions Act 1896 conferred a power on the Attorney-General to apply to the High Court for an order restricting the institution of legal proceedings against the person who:

"... has habitually and persistently instituted vexatious legal proceedings".

7. In Re Boaler [1951] 1 KB 21 the Court of Appeal held that "legal proceedings" within the meaning of the 1896 Act did not include criminal proceedings and therefore there was no bar upon Boaler applying to a magistrate for a summons. Clear words would be required to restrict the right of a citizen to bring criminal proceedings; any doubt as to what was encompass within the meaning of civil proceedings was to be resolved in favour of the litigant (see Scrutton J at page 39). That same principle of interpretation was applied in relation to the meaning of civil proceedings in Ex-parte Ewing No 2 [1994] 1 WLR 1553 (at 1558E).
8. Prior to amendment in 1985, section 42 did not distinguish between civil and criminal proceedings but merely conferred the power on a court to order that no legal proceedings should be instituted by one who the court is satisfied:

"... has habitually and persistently and without any reasonable ground:

'instituted vexatious legal proceedings... or

(b) made vexatious application in any legal proceedings.'"

9. The order which the High Court was empowered to make was:

"(i) that no legal proceedings shall without the leave of the High Court be instituted by him in any court; and

(ii) that any legal proceedings instituted by him in any court for the making of the court shall not be continued by him without the leave of the High Court; and

(iii) that no application ... shall without the leave of the High Court be made by him in any legal proceedings..."

10. The amendment was introduced by section 24 of the Prosecution of Offences Act 1985 in the realisation that as drafted there was no power on the High Court to restrict the institution of a vexatious prosecution, following the principles expressed by the majority of the Court of Appeal in Re Boala.

Criminal cause or matter

11. Mr Ewing's primary submission is that an application for permission to apply for judicial review of a decision to discontinue a prosecution is a criminal proceeding because the order which is sought to be reviewed itself relates to criminal proceedings. His starting point is that the order which he seeks to review is an order in a criminal cause or matter. The principle on which he relies was expressed by Sir John Donaldson, MR in Carr v Atkins [1987] 1 QB 963 at 967:

"The nature of an order made or refused in judicial proceeding must depend not upon that order but upon the order that is sought to be reviewed."

An application which is ancillary or incidental to proceedings, the outcome of which may result in conviction and sentence, is a criminal cause or matter (see Amand v the Home Secretary and Ministry of Defence of Royal Netherlands Government [1943] AC 147 (eg, the speech of Lord Wright at 162) and Coughi v the Governor of Brixton Prison [1997] 1 WLR 1346 at 1353C). The principle was more recently endorsed in R on the Application of Mehmet v the Clerk to the Justice of Miskin Cynon Valley etc [2002] EWCA Civ 1248 paragraph 4. If Mr Ewing were successful in quashing the decision of the CPS then he will be free to resume his criminal prosecution. I did not understand the amicus, appointed pursuant to an order of Ouseley J, to dissent from the proposition that the underlying decision which Mr Ewing seeks to challenge is a decision in a criminal cause or matter.

12. In those circumstances, Mr Ewing asserts that it follows that the proceedings by way of judicial review, if he gains permission, are criminal proceedings, and the application for permission to bring those proceedings are themselves criminal proceedings.

The statutory regime

13. In order to assess whether that submission is correct it is necessary to consider the statutory regime in which the questions falls to be decided.
14. Section 42 is primarily concerned with control over the initiation of proceedings or over a litigant who adopts an active role by making an application. Hence, in civil proceedings the trigger for an order is the institution or making of an application in such proceeding. In criminal proceedings, it is the institution of a prosecution which triggers a criminal proceedings order. Again, the restrictions which may be imposed relate to the institution or making of an application in civil proceedings and the institution of criminal proceedings.
15. Since the focus of an order under section 42 is on the institution of proceedings or the active role adopted by the vexatious litigant, it is easy to see why it is that the statute does not define criminal or civil proceedings by reference to the underlying subject matter. Other statutes define "civil proceedings" in different ways according to the underlying subject matter. Section 12 of the Administration of Justice Act 1969, conferring the power to grant a certificate to appeal to the House of Lords, defines civil proceedings as proceedings other than proceeding in a criminal cause or matter (see section 12(8)). In the Civil Evidence Act 1972 civil proceedings are defined as proceedings before any tribunal in relation to which the strict rules of evidence apply for the purposes of considering the mode of proof in foreign law (see section 5(1)).
16. In Ex-parte Waldron [1986] 1 QB8 24 it was held that in section 139(1) of the Mental Health Act 1983 the words "civil proceedings" did not cover proceedings for judicial review. There is no universal definition of civil proceedings; different statutes define such proceedings in different ways according to the objective which that statute is seeking to achieve.
17. In particular, the statutory concept of any criminal cause or matter is deployed in order to identify the route of appeal. By section 18(1)(a) the Supreme Court Act 1981 no appeal lies to the Court of Appeal:

"... from any judgment of the High Court in any criminal cause or matter."

The contrast between the statutory provisions of section 42 and such provisions relating to the conduct of an appeal, is striking. Under section 42 it is simply not relevant to ask whether the proceedings relate to or are "in" a criminal cause or matter. The statutory question is focused on the stage when proceedings are instituted or an application made. Once permission has been given to apply for judicial review and the substantive proceedings are heard, the question then arises as to whether the judgment of the High Court was "in any criminal cause or matter" (see section 18(1)(a)). Similarly, that section prevents an appeal against the refusal of the High Court to grant permission to apply for judicial review in a criminal case but the absence of any right of appeal does not assist in determining the nature of the proceedings in which the original application for permission is sought.

Applications for Judicial Review

18. The proceedings in question are part of a two-stage process which separates a preliminary stage in which permission is required from a substantive application for judicial review pursuant to CPR 54. There was ample authority under the predecessor of that rule, Rules of the Supreme Court Order 53, rule 3, for the proposition that an application for leave to apply for judicial review constituted the institution of civil proceedings and accordingly, an applicant subject to a civil proceedings order under section 42(1) of the 1981 Act, required leave to make the application for judicial review. Ex-parte Ewing [1991] 1 WLR 388 concerned Mr Ewing's application for leave to apply for judicial review of the issue of a summons by Islington Borough Council in relation to the enforcement of the community charge. Lord Donaldson, MR, focused on the preliminary stages of proceedings in which leave must be sought, describing them as separate proceedings before the main proceedings (page 393C). He continued:

"One can multiply examples of cases in which there have to be preliminary proceedings before the proceedings proper can be begun. For my part, I have no doubt but that all orders made under section 42 contemplate that the leave of the High Court shall be obtained by those to whom the section applies in relation to those preliminary proceedings, as much as to the substantive proceedings which may follow if leave is granted. (393E)"

Nicholls LJ said that it would be strange if an application for leave to apply for judicial review under Order 53, rule 3 was not itself civil proceedings:

"It would mean that a litigant against whom a civil proceedings order had been made would be at liberty, notwithstanding such an order, to apply for leave to make an application for judicial review but, if that leave were granted under Order 53, rule 3, the litigant would then and thereafter still have to obtain leave from the High Court under section 42 before he could proceed further. He would have to do that because, if the application for leave under Order 53 rule 3 does not itself constitute the institution of civil proceedings, then the making of the application for judicial review must constitute the institution of the proceedings in question. The grant of leave under Order 53 rule 3 would not dispose of the litigant's need to obtain leave under section 42 thereafter. That sequence would be topsy-turvey... In my view, the undefined phrase 'civil proceedings' is sufficiently flexible to embrace an application for leave under Order 53 rule 3 and is to be understood as having that meaning in section 42."

19. Mr Ewing parries that proposition by pointing out that the substantive proceedings in that case would have been civil proceedings and not proceedings relating to a criminal cause or matter, as he contends the instant proceedings to be.
20. In Ex-parte Ewing (No 2) [1994] 1 WLR 1553, Mr Ewing contended that judicial review proceedings were not civil proceedings within the meaning of section 42 in relation to an application to move for judicial review of administrative decisions of the Legal Aid Board. Sir Thomas Bingham, MR, accepted Mr Ewing's principle of the construction based upon in Re Boala that in the event of ambiguity the expression "civil proceedings" should be resolved in favour of the litigant since section 42 restricted his right of access to the court. The Master of the Rolls found no such ambiguity because, he said:

"It seems clear to us that the draughtsman intended all court proceedings to be comprised under the heading of either civil or criminal proceedings. He intended 'all proceedings' to be just that, and cannot have intended to leave a well-defined class of proceedings uncovered."

It may be that section 42 does not have the all-embracing effect perceived by the Master of the Rolls. But it is noteworthy that the Court of Appeal was not persuaded by Mr Ewing's reliance upon section 139 of the Mental Health Act and the decision in Ex-parte Waldron. The Court of Appeal's reasoning in Ex-parte Ewing (No 2) in part depended upon the underlying purpose of section 42. Sir Thomas Bingham, in giving the judgment of the court, said:

"In the ordinary case, we can see no reason why Parliament should not have intended a vexatious litigant seeking judicial review to obtain leave under section 42(3) as well as leave to move. It is true that an application for leave to move would not vex the proposed respondent unless or until leave to move was given, but it would be appropriate to subject an application by a vexatious litigant to more than routine scrutiny ... In our view the manifest purposes of section 42 compelled the court to reach the conclusion it did."

21. The manifest purposes of section 42 were identified by the Court of Appeal as primarily concerned with the vexation of other fellow citizens:

"The compulsive authority of the state vested in the court and the Judiciary shall not be invoked without reasonable cause to the detriment of other citizens and that where someone takes this course habitually and persistently, that person should be restrained from continuing to do so, but shall nevertheless be as free as any other citizen to use those processes if he has reasonable cause for so doing. (Attorney General v Jones [1991] WLR 859 at 862H-863A)"

It is true that Order 53 has now been replaced by CPR Part 54. But the requirement for a separate preliminary stage in which permission to apply for judicial review is required, remains. In R v (Ewing) v Deputy Prime Minister [2006] 1 WLR 1260 no doubt was expressed on the proposition in Ex-parte Ewing [1991] that an application for permission to apply for judicial review was itself a proceeding requiring leave under section 42. The court in that case gave guidance on the basis that vexatious litigants in judicial review do require leave (see paragraphs 32-39).

22. R (Ewing) concerned an application for judicial review of planning decisions. Like the other cases to which I have referred, the application for judicial review did not relate to a criminal cause or matter. On that basis Mr Ewing contends they are to be distinguished and the correct view is that because the application to apply for judicial review relates to a criminal cause or matter it must follow that the application constitutes criminal and not civil proceedings, in respect of which no order has been made or can be made under section 42.
23. The answer to Mr Ewing's contentions lies in the analysis of the statutory regime imposed by section 42 of the 1981 Act as amended, which I have attempted to give in paragraphs 12-16. The statutory question in the instant case is whether Mr Ewing is seeking to institute civil proceedings. The fact that the underlying decision which the applicant seeks to challenge relates to a criminal cause or matter provides no answer to the statutory question. The question is whether the application for permission to apply, plainly distinct from the substantive proceedings once an application is successful, is a civil proceeding, not whether it relates to a criminal cause or matter.
24. Once the nature of the statutory question is identified, it seems to me to be irrelevant that that which the applicant seeks to impugn relates to a criminal cause or matter. In seeking to apply for judicial review, those separate, preliminary proceedings are in my view plainly civil proceedings. They are miles away from the criminal proceedings identified in section 42. The nature of the proceedings, at the stage at which permission is sought, does not differ in any way from those proceedings identified as civil proceedings in the authorities to which I have already referred in which Mr Ewing was involved in 1991, 1992 and 2006. Their character, in invoking the jurisdiction of the High Court under Order 53 or CPR 54, is not altered by reference to the irrelevant consideration of the underlying subject matter.
25. Moreover, there is every reason, in order to achieve the purposes of section 42, to characterise these proceedings as civil proceedings. Even if Mr Ewing was subject to a criminal proceedings order, or an all proceedings order, if he is right there would be no restriction on his application for judicial review. Thus, it would be open to any vexatious litigant, subject to an all proceedings order or a criminal proceedings order, to institute judicial review against public bodies in any case involving a criminal cause or matter, for example, the decision not to prosecute or to discontinue whether the vexatious litigant had a sufficient interest in the matter or not. It seems to me that the purposes of section 42 are undermined if so gaping a hole in its ambit is identified.
26. As I have already indicated, that is not to say that all proceedings are embraced within the ambit of section 42. An appeal by way of case stated is clearly a proceeding but cannot be restricted by that section. That is not wholly surprising since such an appeal may only be advanced by one who has been convicted before the Magistrates' Court pursuant to section 111(1) of the Magistrates' Court Act 1990. Blake J in argument expressed concern that a defendant who sought permission to apply for judicial review of a conviction by the Magistrates' Court, if he was subject to a civil proceedings or all proceedings order, would require leave under section 42. If he was merely subject to a criminal proceedings order that would not restrict such an application.
27. I do not believe that the possibility that one convicted by the magistrates who seeks to challenge the conviction by way of judicial review inhibits the construction I favour. Cases arising out of a decision of a Magistrates' Court, in which judicial review is appropriate, are rare. In most cases, appeal by way of case stated is the appropriate statutory route after a conviction by a Magistrates' Court, if the right of appeal to the Crown Court is not chosen. It is only in rare cases that judicial review will be appropriate where it is alleged the magistrates have been guilty of some procedural impropriety or unfairness (see paragraph 2-160 Archbold (2008 Edition)). If one who has been the subject of a civil proceedings order seeks to make such an allegation I do not regard it as particularly arduous or unfair that he must seek the leave of the High Court to advance those allegations of impropriety. Section 42 does not inhibit the normal grounds of appeal following conviction by the magistrates. If he has serious grounds for alleging impropriety then the needs to seek leave under section 42 provides no real obstacle to so rare a ground.
28. Thus far, I have favoured an interpretation which compels Mr Ewing to seek leave under section 42 without reference to one further authority to which our attention has been drawn by the amicus. In a case of which we have no full report or transcript, R v Tottenham Magistrates Court ex parte Gleaves [1993] COD 332, the Divisional Court ruled that the application to apply for judicial review was a civil proceeding despite the fact that the decision that the vexatious litigant sought to impugn was a decision of a Magistrates' Court to refuse to issue a summons alleging a criminal libel. The argument advanced on behalf of the application was the same as that which is advanced by Mr Ewing, namely, that the case concerned a criminal cause or matter. According to the note of the decision, the court said that no distinction was to be drawn between civil and criminal proceedings in relation to the preliminary application for leave to move. The note reads:

"So far as these proceedings were concerned there was no prosecution and no defendant. Indeed, except in the special circumstances of this case, the intended defendant in the Magistrates' Court was not necessarily a party to these proceedings. The applicant was seeking to invoke the powers of the civil court for the purposes of the criminal proceedings which he was seeking to institute in the Magistrates' Court. That did not, however, alter the fact that he was invoking the powers in the civil court and that an application under Order 53, at all its stages, even when the application related to a criminal cause or matter, was nevertheless properly to be regarded as a civil proceeding."

29. This court should follow that decision unless it is plainly wrong. For the reasons I have given, I do not think that it is. The proceedings in which Mr Ewing seeks to apply for judicial review are civil proceedings, notwithstanding that the underlying decision which he would be challenging, were he granted permission, related to a criminal cause or matter. That consideration is irrelevant to the proper characterisation of the proceedings in question in this application. In my view, Mr Ewing requires leave under section 42 to make the application for judicial review.
30. MR JUSTICE BLAKE: We have been asked to decide as an interlocutory application whether the claimant, in seeking permission to bring judicial review of a decision of the DPP in proceedings that relate to a criminal cause or matter, are civil proceedings and also therefore whether it requires the consent of the court under section 42(1)(a) of the Supreme Court Act 1981. I agree with my Lord, for the reasons that he has given, that we should answer that application in the way that he proposes and dismiss it.
31. In deference to the importance of the point and the assistance we have had, particularly from the amicus appointed pursuant to directions of Ouseley J, I add two further comments of my own. Two aspects cause me some initial concern. First, it is apparent from the example of appeal by way of case stated that even a section 42 "all proceedings" order does not embrace every kind of proceedings. If certain proceedings are not considered either civil or criminal within the meaning of the statute, then it could be asked: why should not an application for judicial review relating to a criminal cause or matter fall outwith the scope of section 42? The analogy with judicial review of an unfair decision of the magistrates was then pressed by Mr Ewing.
32. Second, for the reasons noted in Ex-parte Waldron [1986] 1 QB 824, and by parity of analogy with that test, judicial review proceedings are often not generally regarded by the law as civil proceedings. I would add to the statutes that my Lord has mentioned the Crown Proceedings Act 1947 section 38(2) that excludes judicial review in crown side proceedings from the definition of civil proceedings.
33. Judicial review proceedings cannot be issued as of right but always require permission. Historically, therefore, the subject is not vexed in such proceedings until the judge has decided there is an arguable case. Admittedly the subject may now be vexed to the extent of providing an acknowledgment of service, but I doubt whether the procedural changes in CPR 54 can transform the scope of section 42.
34. In the end, I have been satisfied, for the reasons given by my Lord and the exposition of the authorities, that the courts have long since embraced the proposition that judicial review proceedings generally can fall within the ambit of section 42. If this is so, then the different appeal routes afforded in judicial review, depending upon whether the subject matter is a criminal cause or matter cannot, in my judgment, drive the answer to the question that we have to decide. The requirement for permission will not greatly restrict the existing rights of the individual as permission is generally required in judicial review in any event. Indeed, it may be easier to persuade the judge that the contemplated proceedings would not be vexatious and an abuse of process than the existence of a good arguable case.
35. In those circumstances I would dismiss the application for the declaration sought.
36. LORD JUSTICE MOSES: The application will be dismissed.
37. APPLICANT: I wonder if I could ask for leave to appeal? Or does that have to be subject of a separate -- application for leave to appeal, or will that be subject of a separate section 42 application?
38. LORD JUSTICE MOSES: I do not know whether you can. I don't know whether can you or not without studying it, but in any event I will refuse permission.
39. APPLICANT: Yes. Whether I could ask for a section 42 leave to seek the Court of Appeal's permission to appeal.
40. LORD JUSTICE MOSES: I do not know whether it is the Court of Appeal. Anyway it may be you will have to go to the House of Lords.
41. APPLICANT: Well the --
42. LORD JUSTICE MOSES: I am not giving advice on that. We haven't looked into it. All we are prepared to say today is if you are allowed to ask for permission, about which (inaudible) refuse permission, and you will have to decide where it is you should go.