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
		09/10/2013

Mr Justice Mackay :

1. This is an application by the Claimant for the discharge or variation of an order made against him on 15 February 1991 under section 42 of the Supreme Court Act 1981 (now the Senior Courts Act) declaring him a vexatious litigant. It was in the form of an all proceedings order and prevented him thereafter from bringing any proceedings of whatever character without the leave of the court.
2. After a hearing lasting more than nine days this court (Farquharson LJ and Millett J) delivered a judgment running to 66 pages describing in detail the proceedings the claimant had brought in relation to the estate of his late brother Theobald Mathew. The court's conclusion was in these terms:

"As will have been seen from the various actions we have reviewed in this judgment his hostility extends to almost everybody he has had dealings with over the estate. These include his family, his co-executor, the administrators, his own solicitors and those of the other parties and various banks and estate agents. Neither does he simply regard them with hostility. In nearly all cases he has made allegations of fraudulent behaviour based on his complete certainty that contrary to existing orders of the High Court the administration of the estate between August 1983 and May 1984 was unlawful. The position has now been reached when the court should intervene to protect those who are the objects of this prolonged and repeated litigation".

3. On 27 February 1992 the Court of Appeal dismissed an attempt to appeal against that order. On 11 March 1996 final distribution of the estate of the applicant's late brother was made.
4. In May 1999 the applicant sought to challenge in the Divisional Court (Lord Bingham CJ and Ognall J) the final accounts for the purposes of distribution on the basis of what he described as "fresh evidence" and for that purpose to have his status as a vexatious litigant set aside. The thrust of his application, as Ognall J observed, was to show that at least some of the past litigation that he had initiated had in fact been soundly and meritoriously based on the facts and the applicable law and that the 1991 order was made against the justice of the case. Ognall J described the application as misconceived and the Lord Chief Justice agreed with him.
5. There matters rested for thirteen years, until 3 September 2012 to be precise, when the applicant applied pursuant to CPR 3.1 and/or the inherent jurisdiction of the court to vary or discharge the order. His affidavit in support suggested that the reasons behind the making of the 1991 order were well and truly spent and there was no further legal foundation for it continuance. He said it was now and continued to be a disproportionate response "to what was argued and accepted by this honourable court as a specific situation at the time". He described how it had a continuing negative impact on his family life and his own morale and psychological well being, and that the indeterminate and disproportionate effect of the order might not conform to what he described as the guarantees contained in the Human Rights Act 1998. He had been the butt of continuing taunts both socially and professionally concerning his status as a vexatious litigant, which itself was advertised on the website of the UK Court Service. He expressed the earnest wish to be relieved of the ignominy and disgrace accompanying the order the purpose of which was well and truly spent. He concluded "I further say that as my financial situation has now improved I never again intend to bring any proceedings without proper advice and legal representation".
6. On 18 September 2012 Foskett J ordered the application be placed before a judge of the Administrative Court directing clarification of the Applicant's future intentions and seeking the preliminary views of the Attorney General and his comments in the light of HM Attorney General v Covey and Another [2001] EWCA Civ 254.
7. The applicant's then solicitors replied stating he had no intention of instituting any proceedings. They accepted that he had considered an application to the Consistory Court with a view to obtaining a licence to exhume his late brother's remains as he has always had doubts about the circumstances of his death and subsequent removal to England and burial. His purpose was "for once and for all removing all doubts as to whether his brother's body is actually interred in the grave". However, the solicitors concluded that he had decided not to pursue that application.
8. The Attorney General's response to Foskett J's request was that his stance was one of neutrality in relation to the application and that he accepted that in Covey the Court considered that it did have an inherent jurisdiction to vary section 42 orders which had been made "in the light of entirely new circumstances". However as Lord Woolf stated at paragraph 64:

"… that the orders should be made in the first instance in cases of this sort unlimited in period of time is in my judgment fully justified".

The Attorney General argued that this test should not be widened any further and suggested the court would no doubt want to probe the reasons why the applicant wished to discharge the order given that it did not preclude him from pursuing legitimate claims with the court's permission.

9. The matter then came before Collins J for an oral hearing in the Administrative Court on 18 January 2013 at which the Respondent was not present or represented. After a short hearing Collins J gave permission, saying that the Applicant should have the opportunity in all the circumstances and that "… he will understand obviously that the situation now is very different from what it was when the orders were made. Effectively, as I now understand it, it is that all the material litigation etc in relation to the estate has now long since been settled and there is no purpose in any further proceedings". Counsel for the applicant confirmed that that was indeed the case.
10. The events that followed that order were disturbing. On 12 April 2013, now armed with public funding, the applicant issued a claim form under Part 8 which did not confine itself to an application to vary or discharge the order of February 1991 on the ground of compelling change of circumstances. It launched a clear challenge to the correctness of the 1991 order. It was alleged at paragraph 4C that "fresh evidence" as described and set out in the accompanying affidavit of the claimant material to and surrounding the original application had emerged to the effect that might have influenced the court in its determination in 1991.
11. There is then at 4J and K a frontal attack against the propriety of the making of the order under ECHR and EU Law, culminating in a claim for damages for breach of his convention rights and under section 8 of the Human Rights Act 1998 including damages for pain, suffering and distress.
12. Needless to say this caused concern to the Respondent who sought clarification as to the scope of the proposed claim, pointing out that Collins J was never told of any intention either to challenge the making of the 1991 order or seek damages. The response of the claimant's solicitors to this in their letter of 13 May 2013 was ambiguous, to say the least. On the one hand they sought to defend the ambit of the claim saying that it was not true that the Attorney General was not aware that Mr Mathew had raised the issue of the compatibility of the original order with the ECHR/HRA in his affidavit of 31 August 2012, but on the other hand they purported to give the assurance that "our client does not seek to challenge the original Order; he does however … challenge the continuity and the effect of the Order". This ambiguity and the appearance of being willing to wound but afraid to strike has persisted throughout the remainder of this action.
13. The matter came back on paper to Collins J on 19 June 2013 when he stated in clear terms;

"I granted leave to the claimant to apply to set aside or to vary the vexatious litigant order. I did not grant leave to pursue a claim for damages. The attempt to attack the whole basis of the vexatious litigant order is not covered by the leave granted so paragraph 4C and E-K inclusive together with the claim for damages cannot be pursued without leave being specifically granted…the claimant will have to apply to the Divisional Court in relation to the further matters for which leave has not been given".

14. The matter came before the Divisional Court on 25 June 2013 when 3 hours had been set aside for the hearing of the two applications namely the application to vary or set aside and the renewed application for leave to bring a damages claim. The matter was adjourned, on the application of counsel for the applicant. He said he was unable to proceed because he was concerned about whether he could make an argument for the damages claim which he needed to research and discuss with his client. The court made certain consequential orders which included the filing of a skeleton argument by both sides.
15. When it appeared the applicant's skeleton argument of 12 July clearly continued the challenge to the making of the Order in 1991 – see paragraph 3.1(i)F- where it asserted that the Order contravened the rule of law because "it was made in circumstances which fell short of an application made in good faith" ; it was also argued that it was contrary to fundamental rights, without reference to EC principles or human rights laws and contravened convention rights in the form of ECHR Articles 3, 6 and 8.
16. The unparticularised allegation of bad faith against the Attorney General was challenged and was not persisted with in the hearing before us. Nor was the apparent proposition that the making of the Order was unlawful, only its continuation. It flowed from that, as it seemed to me, as a necessary consequence that the applicant was arguing that there had been and continued to be a legal obligation on the Attorney General, by reason of the Applicant's convention rights and/or the Human Rights Act, to have monitored the progress of this order, to review (at periods and in a manner which were not specified) whether it was proportionate to maintain it in being and, if he felt that it was not, to make application of his own motion for its discharge. This proposition has only to be stated to be seen to be unarguable. How the Attorney General was to approach this task in respect of this section 42 litigant and all the others on the list was not explained. He would require the power to interrogate each litigant as to his circumstances and to investigate to see whether the results of that enquiry were reliable.
17. As to the damages claim, Mr O'Donoghue when appearing before this court said he was abandoning any claim for damages "outside human rights damages" as he put it. In his skeleton argument he had said (paragraph 21) that the coming into operation of the Human Rights Act 1998 amounted to "a change in circumstances in the Woolf sense". This of course ignores the fact that Lord Woolf said what he said in Covey at a time when the Human Rights Act was already in force. But in my judgment Mr O'Donoghue was on firmer ground when he said that the engagement of Articles 6 and 8 required a more intense review of the continuation of the Order than would have been carried out under common law principles. For my part I would accept that the Court is required when confronted with an application of this nature to look on the basis of intense scrutiny to see whether it is disproportionate to continue the Order as originally made.
18. If the application had been presented in a less inflammatory way I can see that there might have been the makings of an application for discharge based on what one could describe as the core facts, namely that the Order is over 20 years old; until recent events the last litigation in respect of it was in 1999; the estate had been wound up for 17 years; and there is some support in the form of the affidavits of the applicant's sister Mary Elizabeth Mathew, his sons Francis and Nicholas and the applicant himself to the effect that the continuation of this Order causes him personal and social distress and gives material to those who wish him ill to assist them to blacken his name.
19. The Attorney General rightly argues that we cannot shut our eyes to the way this application has been advanced and what has been said on behalf of the applicant within it. The introduction of a damages claim and the allegation albeit withdrawn of fraud were all, I am sure, made with the knowledge and authority of the applicant himself, after having been given the benefit of an adjournment for the specific purpose of considering how the application should be advanced, indeed Mr O'Donoghue concedes as much. He also accepts that these matters can be taken into account by this court.
20. There are other facts which have emerged with disturb me and lead me to believe that the fires which burnt within the breast of the applicant in the late 1980s are far from extinguished. From his evidence it is plain (specifically his affidavit of 11 April 2013) that he still believes his late brother's death was not properly recorded by the French authorities, there was no inquest in that country, he is concerned about when and where he was buried in England and whether the records relating to that are accurate and indeed he even doubts whether it was his brother who was buried in England at all. He plainly believes there is still some conspiracy to mislead in being and that the events which he points out are as he puts it no mere coincidences.
21. He has renewed his attack on the prejudicial views expressed by Master Dyson, the Chancery Master in charge of his litigation in the 1980s, as to the need to make him a vexatious litigant and for which he was rebuked by the then Vice-Chancellor. That had the effect he says of tainting the application. This is only to be understood as an attack on the 1991 order, notwithstanding his earlier protestations that he accepts his litigious behaviour in those years was misconceived.
22. There is a further matter which has caused me some concern described in the witness statement of Ibrahim Seedat filed on behalf of the Attorney General and confirmed by the claimant's evidence of 17 May 2013. The claimant has an ongoing dispute with a man called Moore who he claims has defrauded him of a large sum of money. It appears that on 18 January 2012 one Robert McKew, who also has a claim against Mr Moore, granted a Power of Attorney to the claimant to "continue with and complete all outstanding issues, matters, agreements and/or claims made in my name on behalf of myself" in that regard. The applicant answers this by saying Mr McKew is an elderly man who was unwell and that on his behalf he arranged for the service of the original claim by the Court entering his details on the relevant form as "litigant's friend". While this was not a frank breach of the section 42 Order Mr O'Donoghue sensibly accepted that it was not a well advised action on the part of the applicant; it comes very close to the line of litigation by the Applicant by proxy, in effect. It shows, to my mind, that he still feels irresistibly drawn to the role of a litigant on occasions when he believes his cause is right.
23. The conclusion I reach is this. The burden is on the applicant to satisfy this Court that by virtue of what has happened over the last 22 years it is not any longer necessary for this Order to continue. I accept that the Court should look very carefully at its continuation, and that the focus it should apply to his application is indeed an intense one. But I remind myself of what the Court of Appeal said in Ebert v Official Receiver [2002] 1 WLR 320 when, the court held itself that the Commission in declaring inadmissible the application in H v United Kingdom (1985) 45 DR 281 had accepted that the right of access to a court was not an absolute one, and Buxton LJ said (paragraph 9):

"…the detailed and elaborate procedures operated under section 42 of the 1981 Act respect the important Convention values that procedures relating to the assertion of rights should be under judicial rather than administrative control; that an Order inhibiting a citizen's freedom should not be made without detailed enquiry; that the citizen should be able to revisit the issue in the context of new facts and of new complaints that he wishes to make; and that each step should be the subject of a separate judicial decision. The procedures also respect proportionality in the general access to public resources, in that they seek to prevent the monopolisation of court services by few litigants; an aim and the national arrangements to implement it that the Strasbourg organs applying the doctrine of the margin of appreciation are likely to respect".

24. I remain of the view that it ought to be for the applicant on a case by case basis to satisfy a court that any proposed new litigious activity on his behalf is justifiable and has a reasonable prospect of success. This is after all scarcely different from the burden placed on all claimants who wish to bring proceedings for judicial review. It is not disproportionate, in the circumstances of this case, to require him to continue under that limited fetter placed on his right to litigate and I would dismiss this application.

Lord Justice Moses:

25. I agree.