QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|HM ATTORNEY GENERAL||Claimant|
|SIMON ALBERT EDWARDS||Defendant|
|BRECKER GROSSMITH LTD||Interested Party|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Defendant appeared in person
Mr Paul Staddon (instructed by Simon Willans & Co) appeared on behalf of the Interested Party
Crown Copyright ©
"That leave be granted under S 42 of the Senior Courts Act 1981 in connection with tribunal proceedings, as shown in the attached papers prepared by my solicitors, Stephensons Solicitors LLP, together with their advice letter to me of 15 July 2014 where they state that the prospects of success are greater than 51%."
"Also attached are the claim form and the particulars of claim prepared by Stephensons Solicitors LLP."
"1. No civil proceedings shall without the leave of the High Court be instituted by Simon Albert Edwards in any court, whether in his name or in the name of any other person or persons, including in particular (but without limitation) that of X;
2. No civil proceedings in the name of Simon Albert Edwards or that of X (or both of them) shall without the leave of the High Court be instigated, conducted or otherwise initiated or carried by him, whether as Litigation Friend or otherwise;
3. Any civil proceedings instituted by Simon Albert Edwards in any court before the making of the Order, whether in his name or in the name of any other person (including, without limitation, that of X) shall not be continued by him without the leave of the High Court;
4. No application, (other than an application for leave under Section 42 of the Senior Courts Act 1981), shall be made by Simon Albert Edwards in any civil proceedings instituted in any court by any person, without the leave of the High Court."
As can be seen, Mr Edwards had been subject to the restraints imposed by that order for a number of years.
"Unless by 12 September 2014 the claimant produces to the Tribunal documentary evidence that an application for leave to commence these Employment Tribunal proceedings has been made to the High Court under section 42 Senior Courts Act 1981 the claim will stand dismissed without further order."
"(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."
Section 42(3) provides that:
"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."
"No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court..."
"... What are the consequences if a claimant brings civil proceedings which require the grant of leave under the subsection, without obtaining such leave? The Chief Constable submits that the obtaining of leave in such circumstances is a jurisdictional condition, such as to render null any proceedings brought without it. Mr Seal challenges this interpretation of the subsection: he contends that the lack of leave, even when required, is an irregularity which can be rectified, not a fatal flaw which invalidates the proceedings."
"They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before. They were re-enacted with knowledge of the effect the courts had given to them."
"... I repeat, the requirement for leave here was to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued. And that is not a protection that can be secured save by a clear and inflexible rule such as section 139(2) (and its legislative predecessors) have always hitherto been understood to provide. Just such a rule applies in respect of those adjudged vexatious litigants under section 42 of the Supreme Court Act 1981 and Parliament clearly intended to achieve the same result under the Mental Health Act legislation. Whether or not such protection is necessary or desirable is, of course, open to question and has, indeed, been extensively debated over recent years. But your Lordships' task is not to decide whether it is desirable but whether presently the legislation confers it."
He thereafter agreed with Lord Bingham that the Court of Appeal was correct and that the appeal to their Lordships' House be dismissed.
"More fundamentally, the appellant also contends that neither respondent had any locus to appear on the application for leave under s.42(3) and that the interim costs orders made in their favour were therefore made without jurisdiction. This is a point which was not taken before the judge."
"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..."
Which of course is what happened in this case.
"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."