England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/04/2013

Mr Justice Turner:

The background

1. By an application notice dated 17 July 2012, the claimant sought leave to bring an application for judicial review of a decision of the defendant relating to changes to the terms upon which it would henceforth permit its tenants mutually to exchange their homes.
2. The claimant required leave because he was and remains a vexatious litigant. He was made the subject of a Civil Proceedings Order, as defined in section 42(1)(a) of the Supreme Court Act 1981, at the conclusion of a hearing in the Divisional Court on 21 December 1989. The order was dated 12 February 1990. In his judgment, Rose J (as he then was) listed the numerous vexatious claims pursued by the claimant up to that point. There were a total of 37 of which 25 were relied on and dealt with by the court.
3. It is to be noted that, despite the extent to which the operation of section 42(1)(a) would be expected to have inhibited the scope of the claimant's ability to bring proceedings, since 1990 his forensic tenacity had persisted, seemingly unabated. Over this period he has managed to bring about 20 further actions as a consequence of which the legal canon relating to the topic of vexatious litigation has come to be dominated by the name of Ewing.
4. This latest claim has generated a preliminary legal issue which it is necessary for me to resolve before any adjudication can be made on the substantive merits of the challenge to the defendant's decision. The point can be simply expressed. Does a person against whom a vexatious litigant desires to bring proceedings have a right to make submissions to the court, whether orally or in writing, concerning whether such permission should be granted?

The procedural history

5. The claimant's application for leave came before Silber J. on paper on 8 August 2012. Silber J. adjourned the matter to a hearing in open court giving directions which included provision for the defendant to serve a skeleton argument.
6. The adjourned application came before me on 15 March 2013 by which time both the claimant and the defendant had lodged skeleton arguments. The claimant's stance was that I should not pay any regard to the contents of the defendant's skeleton argument on the ground that it had no standing and that I should proceed solely on the basis of his submissions.
7. The only logical way to deal with the matter was for the court to adjudicate upon the question of standing as a distinct issue. That is because the extent, if any, to which the defendant's arguments could be taken into account on the application for leave is wholly dependant on the resolution of the issue of their standing to raise them in the first place.

The law

8. Section 42 of the Senior Courts Act 1981 provides (in so far as is material):

"Restriction of vexatious legal proceedings.

(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; …

(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.

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

9. The terms of the statute are supplemented by a Practice Direction CPR Part 3 PD 7 which provides:

"7.1 This Practice Direction applies where a "civil proceedings order" or an "all proceedings order" (as respectively defined under section 42(1A) of the Supreme Court Act 1981) is in force against a person ("the litigant").

7.2 An application by the litigant for permission to begin or continue, or make any application in, any civil proceedings shall be made by application notice issued in the High Court and signed by the litigant.

…

The application notice, together with any written evidence, will be placed before a High Court judge who may;

(1) without attendance of the applicant make an order giving the permission sought;

(2) give directions for further written evidence to be supplied by the litigant before an order is made on the application;

(3) where the remedy sought, or the grounds advanced, substantially repeat those submitted in support of a previous application which has been refused, make an order dismissing the application without a hearing; or

(4) in any case where (3) does not apply, give directions for the hearing of the application.

7.7 Directions given under paragraph 7.6(4) may include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings for which permission is being sought.

…

A person may apply to set aside the grant of permission if:

(1) the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him and

(2) the permission was granted other than at a hearing of which that person was given notice under paragraph 7."

10. The issue as to whether the wording of the statute is such that, despite the terms of the Practice Direction, the person against whom a vexatious litigant seeks leave to proceed was dealt with in the case of Re Ewing [2002] EWCH 3169 in a careful and detailed analysis by Davis J. I make no apologies for setting out his approach to this issue in full because his observations are directly material to the point which I have to determine and I do not presume to be able to articulate them with any greater degree of clarity.
11. Having identified the statutory background and the terms of the Practice direction, Davis J. went on to find as follows:

"13. It is true that the Practice Direction does not in terms state that the prospective Defendant is entitled to be heard on an application under s.42(3). It is also the case, however, that nowhere is it provided that the prospective Defendant is not entitled to be heard. In any event it is clear, from the provisions in paragraph 7.7 entitling the court to direct service on any person against whom the litigant desires to bring proceedings, coupled with the provision in paragraph 7.9 that such a person who has not been given notice may apply to set aside the grant of permission, that such a person, if directed to be served, may attend, and advance argument at, the hearing at which the grant of permission is sought. Any contrary conclusion would be wholly senseless.

14. Mr Ewing's skilful and ingenious argument, however, is to this effect. He submits, relying on the decision of the Court of Appeal in Jones v Vans Colina [1996] 1WLR 580, that it has been authoritatively decided that the only person who may appear on an application under s.42(3) of the Supreme Court Act 1981 (apart from the vexatious litigant making the application, or his representative) is the Attorney-General — whether through counsel instructed on his behalf or counsel instructed to act as amicus curiae (or advocate to the court). He further submits that the Practice Direction, albeit appended to CPR Part 3, is not itself a rule of court or promulgated with any statutory authority: and to the extent that the Practice Direction was promulgated under the inherent jurisdiction of the court it cannot supersede what has been established as the substantive law by the Court of Appeal: and if it purports to do so it is ultra vires.

15. In Jones v Vans Colina, the plaintiff, Mr Marcus Jones, against whom a vexatious litigant order was in place, was, at an ex parte hearing, given leave under s.42(3) to bring certain proceedings in the County Court against the Defendant. When the Defendant was in due course served with the County Court proceedings the Defendant issued a summons seeking to set aside the original order granting leave (and also a further order permitting service). The Court of Appeal held (not following what Lord Denning had said in Becker v Noel (Practice Note) [1971] 1WLR 803) that the Defendant was not a party and was not entitled to be party to the s.42(3) proceedings; and accordingly had no standing to set aside the order obtained. In the course of his judgment, Lord Justice Nourse (with whom Lord Justice Roch and Lord Justice Schiemann agreed) referred to the provisions of RSC 0.32 r.6 (the proceedings in that case, of course, antedating the CPR) which provided: "The Court may set aside an order made ex parte." Having referred to Becker v Noel and the reasoning of the judge below, Lord Justice Nourse said this at p1584H:

"While I am unable to support the whole of the judge's reasoning, I am in no doubt that his decision was correct. I approach the question in this way. The power expressed in Ord. 32, r. 6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standi to make it. On the application under section 42(3) for leave to institute proceedings the proposed defendant is neither a party to the application nor is he entitled to be made one."

In Becker v Teale (Practice Note) [1971] 1 W.L.R. 1475, another case in which Mrs. Dorothy Becker had been given leave to institute proceedings, Davies L.J said, at p.1476:

"It is to be remembered that the application, in the first instance at any rate, is ex parte, although the judge may cause notice of the application to be given to the Attorney-General so that he may be represented."

It appears from those observations that Davies L.J. assumed that there could be no question of joining the proposed defendant. He was not entitled to be made a party to the application. The Attorney-General was in a different position because it was he who had brought the proceedings in which the applicant had been declared a vexatious litigant. It was he and only he, who had the locus standi to appear on the application; see also the observations of Brooke J. in Re C., The Times, 14th November 1989.

A little later on, after citing Ex.p Ewing [1991[ WLR 388 and Ex.p Ewing (No 2) [1994] 1 WLR 1553 — I add that those cases also involved the present applicant — Lord Justice Nourse said this at p1585H—1586A;

"While I cannot agree with Sir John Wood that the observations made in the two Ewing cases are of more than persuasive authority in the decision of the question that now confronts us, they are certainly valuable as demonstrating an assumption that a defendant to proceedings for the institution of which leave has been given under section 42(3) cannot apply to set the leave aside. Coupled with the limitations which must be put on Ord. 32, r. 6 and the observations of Davies L.J. in Becker v. Teale (Practice note) [1971] 1 W.L.R. 1475, 1476, I think that they provide a solid basis for affirming Sir John Wood's decision in this case."

He concluded that a proposed defendant was not entitled to be made a party to the application under s.42(3). Lord Justice Nourse went on to hold that such an order, made under s.42(3), fell within the ambit of RSC 0.32 r.6.

16. Mr Ewing submitted that that governs the position here. The Secretary of State had, and has, no entitlement to be a party on an application under s.42(3) any more than he would have an entitlement to seek to have such an order set aside. To the extent that the Practice Direction sought to depart from that, the court should not give effect to it and should disregard it as being ultra vires. Mr Ewing cited, as authorities which he said were illustrative of such an approach, General Mediterranean Holdings SA v Patel [1999] 3 All E R 673; and R v Lord Chancellor, ex.p. Witham [1997] 2 All ER 779.

17. Mr Tam submitted that the Practice Direction appended to CPR Part 3 expressly and deliberately reversed the position as enunciated in Jones v Vans Colina. He further submitted that this was a change of procedure, not of substance, and there was every entitlement to depart (if thought fit) from a previously established procedural position. Further, s.42, he submitted, nowhere itself, by its provisions, imposes any limitation on those who may be heard on an application under s.42(3). He submitted that a matter such as an entitlement to be heard was ordinarily to be regarded as a procedural matter within the court's control, subject to rules made to cover a particular situation; and the new procedure, set out in the Practice Direction, was not in any way inconsistent with the statute. Further, whilst he accepted that Practice Directions are ordinarily to be regarded as being made by Heads of Division under the inherent jurisdiction of the court, their existence is expressly recognised in certain respects in section 5 of the Civil Procedure Act 1997 ("Practice Directions" being defined in s.9(2) of that Act). He also referred to paragraph 6 of schedule 1 to the 1997 Act which provides:

"6. CPR may, instead of providing for any matter, refer to provision made or to be made about that matter by directions."

18. Having considered the competing submissions I have come to the conclusion that the provisions of the Practice Direction have changed the erstwhile procedural position, as established by Jones v Vans Colina and that it cannot be said that the Practice Direction was invalid or ultra vires.

19. Nothing in the Practice Direction conflicts with or is inconsistent with the provisions of s.42 of the 1981 Act nor does the Practice Direction remove or interfere with the substantive rights of a vexatious litigant: the relevant provisions of the Practice Direction are procedural, and only procedural. I can see nothing that precludes the introduction in this way of a procedural position different to that previously applicable as decided in Jones v Vans Colina. That decision moreover was made in the context of the now superseded RSC (in particular RSC 0.32 r6): it is plain that the provisions of 0.32 r 6 were a material part of Lord Justice Nourse's reasoning: indeed he held in terms that limitations had to be put on that rule. The position is now quite different and those limitations are removed, since specific provision is made on the point in the Practice Direction. It matters not, in my view, that the new provisions are contained in a Practice Direction rather than a Rule as such: the High Court (by its Heads of Division) has the inherent power to make Practice Directions: and Practice Directions are in any case expressly recognised under the Civil Procedure Act 1997. I would for good measure add (although this was not a point specifically adverted to by Mr Tam or Mr Ewing) that Part 3 of the Civil Procedure Rules commences by Rule 3.1(1) with the following:

"The list of powers in this rule is in addition to any powers given to the Court by any other rule or practice direction or by any other enactment or any powers it may otherwise have."

20. In his closing submissions in reply Mr Ewing referred me to Rule 23.10 of the Civil Procedure Rules which, he submitted, replaced RSC 0.32 r 6 and (he submitted) was in substance to no different effect. Rule 23.10 is, in fact, very differently worded to RSC 032 r6: but in any event, given the existence of the Practice Direction, I do not think this Rule can bring about the outcome which Mr Ewing seeks. I did, however, draw the attention of Mr Ewing and Mr Tam in the course of argument to the provisions of Rule 40.9. That provides:

"A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside."

It seems to me that a person in the position of the Secretary of State here, as prospective Defendant to proceedings for which leave may be given under s.42(3), is "directly affected" by such an order. I observe that the notes at 40.9.1 (p879 of Volume 1 of the White Book) rather cautiously state:

"Generally, where a non-party is likely to succeed in an application it will be in circumstances where, at least arguably, he is entitled to be made a party to the proceedings."

The note also, interestingly, goes on to refer to certain Practice Directions in various other situations where the rule may be invoked. It is not necessary for me, however, to say more on this aspect. In my view the Practice Direction does effectually give the Secretary of State standing to be heard: and, putting it at its lowest, Rule 23.10 and Rule 40.9 are consistent with such conclusion.

21. In the course of his submissions Mr Tam referred to the decision in Johnson v Valks [2000] 1WLR 1502. Although that was in certain respects a decision of the Court of Appeal, the passage relied on by Mr Tam derives from part of the judgment of Sir Richard Scott V.C who, for those purposes, was sitting as a High Court Judge. The Vice-Chancellor said this at p1508F:

"I am giving Mr. Johnson permission to appeal under section 42 in the absence of Mr Valks or any of his representatives. It was held by the Court of Appeal in Jones v. Vans Colina [1996] 1 W.L.R 1580 that once permission had been given on an occasion where the respondent was not present, the respondent had no locus standi subsequently to challenge and to seek to have that permission set aside. The practice direction supplementing the new rules to which Robert Walker L.J. referred in the course of his judgment has reversed that state of affairs."

I might add that, in the course of his judgment, Lord Justice Robert Walker had said, after referring to Jones v Vans Colina, at p1506D;

"I note that Jones v Vans Colina has been overtaken by the reform of the Civil Justice System: see paragraph 7.9 of the practice direction supplementing CPR rule 3.4."

22. Mr Ewing submits that the observations of the Vice Chancellor were obiter. I agree. He submits they are not binding upon me. I agree with that too. He goes on to submit that I should not follow them. But as will be apparent from what I have already said, I in fact agree with and would adopt the observations of the Vice-Chancellor (and, indeed, of Lord Justice Robert Walker): which in my judgment are correct.

23. I add this. It sometimes can be a relatively straightforward task for a judge to assess whether or not leave should be given on an application under s.42(3). Some claims are demonstrably based on reasonable grounds. Other proposed claims are self-evidently incoherent, misconceived or simply dressed up versions of former claims which have previously been dismissed. But many vexatious litigants are knowledgeable and resourceful. They may well be able to present a case which at first sight seems of arguable substance: but which even a limited amount of informed adversarial argument could reveal to be of no true substance at all. The Attorney-General is not always well placed to identify all relevant points. Further, a prospective Defendant, when faced with proceedings for which leave has been given and in respect of which he has been given no prior opportunity to object or to nip in the bud, then may be required to apply to strike out or for summary judgment under whatever procedures are available to him. That can be cumbersome and expensive. Moreover it is a practical reality that it is usually difficult, if not impossible, to recover costs from persons declared vexatious litigants. In such circumstances, the new powers and procedures set out in the Practice Direction relating to applications under s.42(3) are, in my view, plainly consistent with the overriding objective; and accord with the principle of securing an accessible, fair and efficient civil justice system.

24. At the conclusion of the argument on the locus standi issue, I announced to Mr Ewing and Mr Tam my conclusion that the Secretary of State had locus standi to appear on Mr Ewing's application for leave under s.42(3) of the 1981 Act and that I would hear him (by Mr Tam) on that application. I told Mr Ewing that I would give my reasons when I came to give my judgment on his substantive application. The foregoing are those reasons. I have thought it appropriate to deal with the matter at some length (a) because the point would potentially seem to have a bearing on other cases under s.42(3) and (b) in view of the sustained and detailed arguments of Mr Ewing."

12. The decision of Davis J. did not, however, mark the final resting place of the claimant's attempts to salvage the Jones decision from the consequences of the advent of the Civil Procedure Rules and impact of the Practice Direction.
13. In Ewing v News International Limited [2010] EWCA Civ 942 the claimant managed to resurrect the argument before the Court of Appeal. Patten L.J. held:

"11 I deal first with his argument based on jurisdiction. In Jones v Vans Colina [1996] 1 WLR 1580 this court decided that a prospective defendant to proceedings by a vexatious litigant against whom a civil proceedings order had been made was neither a party to the application for leave under s.42(3) nor was entitled to be made one. The particular issue in that case was whether a prospective defendant had locus to set aside grant of leave but the decision is of general application to the status of a prospective defendant.

12 The decision in Jones v Vans Colina turned very much on the provisions of RSC O.32 r 6 which was relied on in relation to the application to set aside the grant of leave. As Nourse LJ said (at page 1584):

"The power expressed in Ord 32, r 6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standi to make it."

13 The point was taken that it was common for the Attorney-General to be given notice of the application for leave but, as Nourse LJ observed (at page 1585), the Attorney-General was in a different position because he had made the original application under s.42 for the civil proceedings order.

14 Since then, however, the position has changed."

14. Then, having set out the terms of PD 7, Patten L.J. continued:

"15 These new rules were clearly designed to reverse the effect of the decision in Jones v Vans Colina by allowing the High Court judge dealing with the application to direct it to be served on prospective defendants as well as the Attorney-General. If exercised this would, in my view, have the effect of making them parties to the application and so entitle them to apply for their costs. Treacy J made just such an order on 6 February 2008. Conversely if not served with the application for leave a prospective defendant may now challenge the grant of leave and, if successful, would be entitled to apply for his costs.

16 Mr Ewing's response to this is that the Practice Direction is ultra vires s.42 of the 1981 Act. He has produced detailed arguments on this point which require consideration to be given to other provisions of the CPR and the inter-relation of s.42 with the power to make Practice Directions under the Civil Procedure Act 1987 .

17 In the absence of any legal representation from the respondents and given the importance of some of these questions, it would not be appropriate, in my view, for this court to attempt to resolve these issues on an appeal to which there is no real opposition."

15. When this matter came before me, I was a little puzzled as to why the Court of Appeal had made no reference to the earlier decision of Davis J. which was directly relevant to the issue it had been called upon to determine. I asked the claimant about it and he assured me that he had drawn the earlier decision to the attention of the Court of Appeal.
16. Furthermore, in his skeleton argument dated 11 March 2013, the claimant asserted that his point on the issue of standing had been raised only in Re Ewing and in Ewing v News International. In this, however, he is in serious error.
17. In Ewing v The Security Service [2003] EWCA Civ 581, the claimant sought permission to appeal the decision of Davies J. The matter came before Laws L.J. who dealt with it thus:

"6. The judge granted leave to the applicant under Section 42 (3) of the Supreme Court Act to pursue an application to this court for permission to appeal on two issues only. First, whether the Secretary of State had standing in the application and, secondly, the question whether the Information Tribunal is a court for the purposes of Section 42.

7. In his grounds the applicant sets out the basis on which he would seek to advance an appeal on those two points and he has addressed me about them this morning. He has also today referred to a very recent decision of the United States' Supreme Court in Miller-El v Cockrell 537 US 1 for the proposition that on a permission application permission should be given if the issues raised are not debatable without the court embarking on an exhaustive detailed inquiry.

8. I turn first to the question of the Secretary of State's standing to take any part in the Section 42 permission application. The judge referred to paragraphs 7.7 and 7.9 of the Practice Direction which supports Civil Procedure Rule Part 3.4. Paragraph 7 of the Practice Direction deals, in terms, with vexatious litigants. …

9. Mr Justice Davis held that it is inherent in paragraphs 7.7 and 7.9 that the person against whom a vexatious litigant desires to bring proceedings may, no doubt subject to the court's permission, attend the hearing of the litigant's permission application and advance argument at it.

10. The applicant relied, and has relied before me, on the decision of the Court of Appeal in Jones v Vans Colina [1996] 1 WLR 1580. I have read the report of that case. …

11. The applicant submitted, and submits here, that this reasoning and that authority governs the position here. The Secretary of State was not entitled to be made a party on the applicant's application for leave under Section 42 (3) and, to the extent that the practice direction implies otherwise, it is ultra vires the rule maker. The applicant submitted this morning that the practice direction was repugnant to provisions relating to the rights of audience in the Courts and Legal Services Act and repugnant also to Section 42 itself.

12. The judge below held, accepting the submissions of Mr Tam for the Secretary of State, that Jones v Vans Colina was effectively reversed by Practice Direction paragraphs 7.7 and 7.9. That this was possible and proper was because both Jones and the Practice Direction related entirely to procedural matters. There was nothing in Section 42 (3) itself to prescribe who might or might not be heard on an application made under it. There was no question therefore of the practice direction being ultra vires.

18. Laws L.J. went on to deal with Johnson:

"13. The judge agreed with the applicant that these passages in Johnson v Valks were obiter, and so they are. However the judge below agreed with them, and so do I. Mr Justice Davis reached the right conclusion for the right reasons on the issue of the Secretary of State's standing. I do not consider the contrary to be reasonably arguable or debatable and I would refuse permission on this ground."

19. Indeed, the claimant's point on the issue of standing enjoyed another brief outing in R (Ewing and another) v Office of the Deputy Prime Minister [2006] 1 WLR 1260 in which Carnwath L.J. (as he then was) held:

"19 The current provisions relating to the role of the proposed defendants can be contrasted with the previous procedure, in which they played no part: see Jones v Vans Colina [1996] 1 WLR 1580 and the comments of Robert Walker LJ in Johnson v Valks [2000] 1 WLR 1502 , 1506 d . I note that Mr Ewing claims that paragraph 7.7 is ultra vires in so far as it authorises a direction for service on the other parties. That argument was rejected by Davis J in another case, for reasons which seem to me compelling: In re Ewing (unreported) 20 December 2002 . However, the issue does not arise directly for decision in this case, since no such direction was made by Forbes J."

Discussion

20. I am entirely satisfied that the Court of Appeal in Ewing v News International Limited [2010] EWCA Civ 942 would not have left open the issue as to whether or not PD7 was ultra vires if it had been alert to the decision of Laws L.J. in Ewing v The Security Service [2003] EWCA Civ 581 which, as a decision of the Court of Appeal, is binding on me. Although my own views are thereby rendered superfluous I will add, with the requisite degree of respect, that I agree with the conclusions of Davis J. and Laws L.J. on this issue.
21. Accordingly, I rule against the claimant on the issue of standing.