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
		24 January 2012

1. MR JUSTICE CRANSTON:

Introduction

2. This is an application by the Attorney General for an all proceedings orders against Mr and Mrs Singer pursuant to section 42 of the Senior Courts Act. These orders would prevent Mr and Mrs Singer from bringing any civil or criminal proceedings in any court, either individually or jointly. Alternatively, Mr Blundell, on behalf of the Attorney General, seeks an all proceedings order against Mr Singer alone, but extended so as to prevent him bringing proceedings either in his own or someone else's name, in particular that of his wife, Mrs Singer.

Background

3. Mrs Singer is the tenant of Flat 11, Hartsbourne Park, High Road, Bushey, Hertfordshire, under a lease dated 10 June 1997. It seems that from time to time Mr Singer has also lived at Flat 11. There has been a long-running service charge dispute with the management company for the flats at Hartsbourne Park. As is usual for long residential leases, the lease contains a mechanism for the recovery of costs that the management company, Bushey Management Limited ("BML"), expends by way of a service charge due from a tenant.
4. From approximately 2003, Mr Singer has, on his wife's behalf, disputed the amount of service charge which BML has sought to recover. The dispute has become bitter. Both parties have in the past been criticised for the way in which the litigation has been conducted in the Leasehold Valuation Tribunal ("the LBT" or "the Tribunal"). This has resulted in BML appointing a professional management agent, Mr Benjamin Mire of Trust Property Management Limited.
5. There have been over 30 claims and applications made by or against either Mr or Mrs Singer since 2003. 12 of these claims have been in the Leasehold Valuation Tribunal relating to service charge disputes. Eight were commenced by Mrs Singer, four by BML. In one case, the Tribunal found that the management costs for those at Hartsbourne Park were higher than they would otherwise be because any other management agent would either decline instructions or demand an increased fee. In the most recent decision, dated 18 January 2012, the Tribunal found that Mrs Singer's application was clearly an abuse of process in view of the numerous previous applications made, and also considered that the application was vexatious.
6. There have also been 14 claims in the Watford, Barnet, St Albans and Northampton County Courts. These have related to service charge disputes, but have also involved claims in defamation, malicious falsehood, a claim for damages for unlawful arrest and a claim alleging the fraudulent obtaining of costs. The unlawful arrest case involved Mr Singer suing a police officer. Six of the cases were commenced by either Mr or Mrs Singer and eight by BML, including a bankruptcy petition brought by directors of BML arising from adverse cost orders in BML's favour against Mr Singer.
7. Finally, there have been seven actions in the magistrates' courts. In five of these, Mr or Mrs Singer alleged failures against BML or its directors to comply with their statutory obligations. One was against Mr Mire for alleged breaches of the Data Protection Act 1998. Another of the cases was a successful prosecution of Mr Singer by the Crown Prosecution Service for the homophobic harassment of Mr Levene, a tenant at Hartsbourne Park. Mr Singer's conviction was upheld on appeal.
8. Before us today, Mr and Mrs Singer have both addressed the court. Mr Singer has contended that since 2003 he has simply acted in the interests of his wife relating to the service charges being levied on her. He contends that the management company and others have pursued false claims in relation to his wife, and that is the origin of the litigation in which he has engaged. In two witness statements presented to us, he has canvassed the details of some of that litigation. However, it is not within our jurisdiction to enter the territory of the merits of those various cases.
9. Mrs Singer has explained that she does not have detailed knowledge of the legal technicalities, but that the other residents and the management company have acted unfairly or worse in relation to her. She accepts that she signed the forms and the applications which have given rise to the litigation. She has also explained the very sad circumstances surrounding the cancer, and later death, of her daughter, and also the strain imposed on her as a result of the care of her grandson.

Legal framework

10. Section 42 of the Senior Courts Act 1981 provides, so far as is relevant, as follows:

"(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."

11. A civil proceedings order prevents the institution or continuance of an application in civil proceedings by the person against whom the order is made without the leave of the High Court. A criminal proceedings order prevents the subject of the order laying an information before a justice of the peace or applying for leave to prefer a bill of indictment without the leave of the High Court. An all proceedings order means an order which has the combined effect of the two other orders (section 42(1A)). An order may be for a specified period or indefinitely (section 42(2)).
12. In Attorney General v Barker [2000] 1 FLR 759, Lord Bingham CJ said:

"1. ... [B]efore the court can make an order under the section it must be satisfied that the statutory precondition of an order is fulfilled, namely that the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious civil proceedings or made vexatious applications whether in the High Court or any inferior court and whether against the same person or against different persons.

"2. ... Whether, where the condition is satisfied, the court will exercise its discretion to make an order, will depend on the court's assessment of where the balance of justice lies, taking account on the one hand of a citizen's prima facie right to invoke the jurisdiction of the civil courts and on the other the need to provide members of the public with a measure of protection against abusive and ill-founded claims. It is clear from section 42(3) that the making of an order operates not as an absolute bar to the bringing of further proceedings but as a filter."

13. Later, Lord Bingham said that the hallmark of a vexatious proceeding was that it had little or no discernible basis in law, and that whatever the intention of the proceeding the effect was to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant. A vexatious proceeding involves an abuse of the process of the court; in other words, a use of the court process for a purpose or in a way which is significantly different from its ordinary and proper use (paragraph 19). Lord Bingham then continued:

"22. From extensive experience of dealing with applications under section 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop."

14. In section 42 proceedings, the fact that some of the cases brought by the potential subject of an order have been successful does not mean that the proceedings as a whole are not vexatious. The successful claims must be set against the unsuccessful claims and the applications to determine whether they are the hallmarks of vexatious litigation (Attorney General v Ford [2008] EWHC 2066, [62]). It is necessary to look at the whole picture and the cumulative effect of a person's activities, both against those implicated in the proceedings and on the administration of justice (Attorney General v Covey [2001] EWCA Civ 254, [61]). It is not open to the potential subject of an order to question findings already made in the earlier proceedings.

Is the Tribunal a court for the purposes of section 62?

15. As I have said, 12 of the proceedings involving the Singers collectively had been before the Leasehold Valuation Tribunal. Section 42 of the Senior Courts Act 1981 refers to vexatious civil proceedings in the High Court or an inferior court. If the Tribunal is a court within the meaning of section 42, all of the Singers' conduct in the proceedings before it falls to be taken into account in determining whether the prerequisite of vexatiousness has been met. Moreover, an all proceedings order granted under section 42 will take effect in that tribunal.
16. The Tribunal was established by section 142 of the Housing Act 1980, which transferred the jurisdiction of the Lands Tribunal under sections 21(1)-(3) of the Leasehold Reform Act 1967 to it. The Tribunal's jurisdiction now derives from section 173 of the Commonhold and Leasehold Reform Act 2002 ("the 2002 Act"). There is a right of appeal from the Tribunal to the Upper Tribunal, with permission, under section 175(1) and (2) of that 2002 Act. Section 175(8) specifically excludes the jurisdiction of the High Court under section 11(1) of the Tribunals and Inquiries Act 1992.
17. The jurisdiction of the Tribunal is contained in schedule 1 to the Leasehold Valuation Tribunal (Procedure) (England) Regulations 2003, 2003 SI No 2099. The specific jurisdiction of the Tribunal to determine service charge disputes is derived from section 27A of the Landlord and Tenant Act 1985, introduced by section 155 of the 2002 Act. Procedure in the Tribunal is dealt with in schedule 12 of the 2002 Act. Paragraph 3 deals with transfers to the Tribunal from the courts of certain matters. Paragraph 10 addresses costs and provides that the Tribunal may order a person to pay costs where either an application has been dismissed as frivolous, vexatious or an abuse of process, or where he has in its opinion acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably in connection with the proceedings.
18. Procedure is further dealt with in the 2003 Regulations. Regulation 11 deals with the dismissal of frivolous and vexatious applications. Regulation 14 provides for the conduct of the hearing of the Tribunal, which will generally be in public. Regulation 16 empowers the Tribunal to take all reasonable steps to ensure that parties receive the relevant documentation before a hearing. Under regulation 18, the Tribunal must give reasons for any decision. By regulation 19, any decision of the Tribunal may, with the permission of the County Court, be enforced in the same way as orders of that court.
19. There has been considerable case law in a variety of contexts relevant to whether a body like the Tribunal is a court. In Attorney General v Jones [1990] 1 WLR 859, a vexatious litigant argued that no account could be taken under section 42 of proceedings in the Court of Appeal. Lord Donaldson MR said that section 42 was ambiguous. That meant it was permissible and necessary to have regard to its purpose, which is that the compulsive authority of the state vested in the courts should not without reasonable cause be invoked to the detriment of others, and that where someone takes this course habitually and persistently, person should be restrained from continuing to do so without reasonable cause (see 862D-863C).
20. In Attorney General v British Broadcasting Corporation [1981] AC 303, Lord Scarman referred to how Griffith CJ had characterised the concept of judicial power in Huddart, Parker & Co v Moorehead [1909] 8 CLR 330 at 357:

"[T]he power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."

21. In the BBC case, the question was whether a local valuation court which dealt with the valuation of property for the purposes of rating disputes was an inferior court, contempt of which the Divisional Court had jurisdiction to punish. The House of Lords held that, although it might be a court, it was one with administrative purposes. For the present, it need simply be noted that there were a variety of approaches among the Law Lords.
22. The BBC case was applied in another contempt case, Peach Grey & Co v Sommers [1995] ICR 549, where the Divisional Court held that an industrial tribunal was an inferior court. Rose LJ, with whom Tuckey J agreed, said that despite the fact it was not a court of record, required the County Court to enforce its awards and to deal with taxation of costs, and did not need to apply the strict rules of evidence, nonetheless the industrial court was still an inferior court. Its other attributes demonstrated that it "exercises the judicial power of the state". The case also illustrates that the protective jurisdiction of the Divisional Court may be needed for administrative tribunals where there is interference with witnesses.
23. Both the BBC and Peach Grey cases have been considered by the High Court in the context of vexatious litigant proceedings under section 42 of the Senior Courts Act 1981 (see in particular In re Ewing (unreported, 20 December 2002), In re Ewing [2003] EWHC 2051, and Vidler v UNISON [1999] ICR 746). Respectively these held that the Information Tribunal, the Investigatory Powers Tribunal and the Employment Tribunal were courts for the purposes of section 42.
24. Applying the case law to the jurisdiction and powers of the Leasehold Valuation Tribunal, in my view it is clearly a court for the purposes of section 42 of the 1981 Act. Its purpose is to resolve disputes between private individuals concerning various aspects of their proprietary interests which would otherwise fall to be dealt with by the civil courts. In R (on the application of Sinclair Gardens Investment (Kensington) Ltd) v Lands Tribunal [2005] EWCA Civ 1305, Neuberger LJ, as he was, said this at paragraph 42:

"In a powerful passage in paragraphs [42] and [43] of his judgment, Sullivan J explained why he was of the view that the statutory scheme in the present case was 'fair, adequate and proportionate'. At paragraph [42], he said this:

"'[T]here is a 'coherent statutory scheme' for dealing with disputes relating to service charges. It does not ensure that an LVT's decision will be 'reviewed' by a legally qualified judge, but that is not inconsistent with the underlying purpose of the scheme: to remove such disputes from the Courts, and dispose of them simply, expeditiously and inexpensively by a hearing before a specialist tribunal, the LVT, with a limited right of appeal to the Lands Tribunal.'"

25. In the context of a service charge dispute, the purpose of the Tribunal is ultimately to determine the liability for the payment of a service charge as between competing private parties, namely the landlord and the tenant to a lease. That involves the construction of the lease, a contractual document which would otherwise fall to be interpreted in the County Court or the High Court. That is consistent with the concept of judicial power described by Griffith CJ in Huddart, Parker & Co v Moorehead.
26. In my view, the Tribunal's functions are classically judicial rather than administrative. There is, crucially, a considerable scope for the transfer of proceedings from the civil courts to the Tribunal where that is appropriate. Moreover, in terms of the purpose of section 42, purpose being important to the reasoning of the court in the BBC case, it is clearly consonant with the legislation that the Tribunal should be regarded as an inferior court.

Whether the section 42 test was met

27. In my view the section 42 test is met in this case with respect to both Mr and Mrs Singer. They have habitually and persistently and without any reasonable ground instituted vexatious civil and criminal proceedings. That is so whether all the litigation is considered or whether the Tribunal proceedings are ignored. There have been, as I have said, a total of 33 cases involving, it appears, some 50 court appearances. The Singers have not won any of the litigation in the County or Magistrates' Court, although they have had limited success in the Tribunal. The terms of the judgments indicate that their claims have rarely had any basis in law and the claims have sometimes been branded as "without merit".
28. All the litigation stems from a dispute over the operation of the service charge, but that dispute has led to a range of other claims and prosecutions. The criminal prosecutions against BML or other individual directors are particularly worrisome given, it seems, the lack of substantive evidence to support them. Then there is Mr Singer's own prosecution for harassment, which underlines his culpable behaviour in terms of the section 42 test. There have been routine appeals, whether or not there has been any prospect of success.
29. All of this has cost money, not just to the other residents, who must pay higher management fees, but to the public purse. There have been a number of costs awards in the criminal cases paid to BML out of central funds. The litigious activity has shown no sign of abating, as demonstrated by the most recent case in the Tribunal. It appears that a key feature of Mr Singer's conduct has been that he repeats arguments already made and lost. Unless restricted by this court, that activity on behalf of both Mrs Singer and him is likely, in my view, to continue.
30. As I have said, Mr Singer has explained his behaviour. Mrs Singer has explained the sad events which she has experienced over the last two years, but the litigious activity predated that trauma. In my view, while sympathy must be extended to Mrs Singer's difficult position, it has no effect on whether these orders ought to be made.
31. For these reasons, Mr and Mrs Singer's conduct, in my view, clearly reaches the required threshold for making the order. I would make all proceedings orders against both parties.
32. LORD JUSTICE TOULSON: I agree. As Cranston J has said, both the Singers and Mrs Singer's landlord have been criticised in the past for the way in which the dispute between them has been conducted. Mrs Singer has told us today that she has suffered harassment, but there is an established history of vexatious applications by the Singers. They have not lost every point, but there have been a large number of repetitive and abusive applications. As the Leasehold Valuation Tribunal chairman recently observed in striking out another case claimed by them:

"[...] it is against public policy for the judicial system to deal with a dispute and then allow the same dispute to be tried again and again [...]."

33. So there has been, as I say, an established history of vexatious applications, and I am satisfied that it is right to make the order sought in order to stop a perpetuation of vexatious litigation.
34. This is not a finding of contempt. It is not a punishment. It will not prevent the Singers from bringing proper applications before the court, but they will need first the permission of the High Court.
35. Like Cranston J, I am particularly mindful of the miserable situation in which Mrs Singer finds herself. Life has been cruel to her in many ways, and it is rather touching the way that she has relied on Mr Singer. She has not involved herself greatly in the details of the litigation, but she has had to sign the necessary documents, trusting in him that he was doing what was wise and right and sensible. However well motivated he may have been in trying to protect her interests, what he has in fact done has not, on repeated instances, been appropriate or right or wise or sensible.
36. The order may seem hostile, but its purpose is simply to stop hopeless applications being brought again and again, which help nobody and do nothing to reduce Mrs Singer's distress, quite apart from the expense which they cause to everybody else. The purpose of the order is not to prevent proper legal steps being taken to protect Mrs Singer's interests as and when they may be necessary, but it will be for the High Court in future to see that hopeless litigation is not repeated, while not stopping Mr and Mrs Singer from properly protecting her rights in such circumstances as may occur.
37. For those reasons, which are a repetition of what Cranston J has said in fuller detail, I agree that it is right that this order should be made.
38. MR BLUNDELL: I am grateful, my Lords, for those judgments. There is just one point that I can perhaps pick up in the judgment of my Lord, Cranston J. I think I heard my Lord say that the latest judgment from the LBT was dated in September last year. In fact, although that is when the case commenced, the judgment is in fact 20 January of this year. I just thought I should raise that with the court.
39. My Lord, other than that, I ask for an all proceedings order against both Mr Singer and Mrs Singer. For the avoidance of doubt, there is no application for costs.
40. LORD JUSTICE TOULSON: Thank you very much indeed.