CO/852/2010 
Neutral Citation Number: [2015] EWHC 1653 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 12 May 2015
 
B e f o r e: 

MR JUSTICE WILKIE 
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Between: 
HM ATTORNEY GENERAL 
Claimant 
v 

SIMON ALBERT EDWARDS 
Defendant

BRECKER GROSSMITH LTD 
Interested Party

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Computer‑Aided Transcript of the Stenograph Notes of  
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The Claimant did not attend and was not represented
The Defendant appeared in person
Mr Paul Staddon (instructed by Simon Willans & Co) appeared on behalf of the Interested Party
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J U D G M E N T
1.	MR JUSTICE WILKIE:  This is an application made by Simon Albert Edwards pursuant to a notice of application dated 19 August 2014 received by the Administrative Court Office on 20 August 2014.
2.	The order which Mr Edwards is asking is in the following terms:
"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%."
3.	The application form invites the applicant to identify what information he would be relying on in support of his application, and it is summarised in the evidence set out in the box provided.  Mr Edwards includes within that box the following:
"Also attached are the claim form and the particulars of claim prepared by Stephensons Solicitors LLP."
4.	The claim form and the particulars of claim included as part of the application comprise a claim made to the Employment Tribunal, received by the London Central Tribunal on 22 July 2014.  It relates to a claim made against his erstwhile employers, Brecker Grossmith Limited.  The claim contends that his employment started on 28 August 2012 and ended on 31 January 2014.  The claim was for deduction from wages, apparently in the form accrued holiday pay, calculated in particulars of claim as amounting to £3,343.74.
5.	It is apparent that at the point at which the claim was submitted to the Employment Tribunal and accepted by it as duly constituted, the Employment Tribunal was unaware that Mr Edwards was subject of a civil restraint order made by the Queen's Bench Division Divisional Court on 12 July 2010.  Under that order, the court ordered:
"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.  
6.	As a matter of previous history, it is clear from the records (and Mr Edwards accepts) that on a date in 2011 he had applied to the High Court pursuant to the civil restraint order for leave to commence proceedings in the Employment Tribunal against a previous employer, Davis Brown Ltd.  In fact it appears that leave was not granted by the High Court on that occasion, but it is clear that Mr Edwards was aware that, before instituting the claim which he did in the Employment Tribunal on this occasion, he first needed the leave of the High Court in order to do so.
7.	It was clear to the High Court judges dealing with this application before it was listed before me for hearing (namely Nicol J and Singh J) that the application for leave by Mr Edwards, being in respect of extant proceedings before the Employment Tribunal, might well give rise to the question whether this court had any jurisdiction to grant leave to Mr Edwards either: to continue proceedings which had been commenced without him first having obtained the leave of the High Court; or retrospectively to grant him leave to commence the extant proceedings.
8.	I refer to the Employment Tribunal proceedings being extant because I have heard the arguments this morning on the agreed basis that the Employment Tribunal proceedings, which were begun by Mr Edwards without first having sought leave of the High Court, have been stayed pending the outcome of this application.  That has been the common assumption.  The Employment Tribunal became aware shortly after proceedings were commenced that Mr Edwards was the subject of a civil restraint order and should first have obtained the leave of the High Court before commencing the proceedings before the Employment Tribunal.  By an order sent to the parties on 2 September 2014 an employment judge ordered that:
"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."
9.	It is common ground that the application to this court for leave to commence those proceedings had already been made, and accordingly it appeared sensible, and indeed it was common ground, that I should treat the Employment Tribunal proceedings as stayed pending the outcome of this application.
10.	Section 42 of the Senior Courts Act concerns the restriction of vexatious legal proceedings.  Subsection (1) sets out circumstances in which, upon application by the Attorney‑General, the court may make a civil proceedings order.  Section 42(1A) defines for the purposes of section 42 a civil proceedings order as meaning 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."
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."
11.	It is, in my judgment, clear that the reference in subsection (3) to leave for the continuance of any civil proceedings is limited to continuance of civil proceedings referred to in section 42(1A)(b), that is to say civil proceedings instituted by him before the making of the civil proceedings order, and does not refer to the continuance of civil proceedings commenced by the applicant without having first obtained leave of the High Court.  
12.	On the face of it, section 42 provides a very strict set of provisions which would preclude anyone who had commenced proceedings covered by the order without first obtaining the leave of the High Court from making an application such as Mr Edwards has made for leave to continue the proceedings, even though leave had not been obtained before they were commenced, or to give retrospective leave for him to commence proceedings where those proceedings had been commenced without first obtaining leave of the High Court.
13.	The question whether section 42 is to be read in that restrictive way was considered indirectly by the House of Lords in Seal v Chief Constable of South Wales Police [2007] UKHL 31; [2007] 1 WLR 1910.  It was considered indirectly because their Lordships in that case were concerned with section 139 of the Mental Health Act 1983, in particular subsection (2) which reads:
"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..."
14.	The question which arose as a matter of construction and application of subsection (2) was described by Lord Bingham of Cornhill in paragraph 2 of his speech, which was part of the majority, in the following terms:
"... 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."
15.	Part of the argument which found favour with the majority, and which resulted in the decision that such proceedings were indeed a nullity, was described by Lord Bingham in paragraph 18 of his speech.  Referring to the words in the section which had first been introduced in section 16(2) of the 1930 Act, he used the following words:
"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."
16.	Lord Bingham, at the end of his speech, concluded that the Court of Appeal, which had decided that the effect was to render the proceedings a nullity, had reached the right decision for essentially the right reasons, with which he agreed, and he also agreed with the opinion of Lord Brown of Eaton‑under‑Heywood, to which I will return.
17.	Lord Brown said at paragraph 74 of his speech the following:
"... 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.
18.	The issue whether the existence of such a clear and inflexible rule (as it had been decided by their Lordships section 139(2) amounted to) was compatible with the United Kingdom's obligations under the European Convention on Human Rights, and in particular Article 6(1), was the subject of challenge in the same case under the name Seal v United Kingdom [2012] 54 EHRR 6.  The court in that case decided that the existence of the rule did not amount to a violation of Article 6(1).  
19.	Mr Staddon relies on the decision in Seal as effective binding authority on me in support of his contention that the Employment Tribunal proceedings which were commenced without leave of the High Court were, and are, a nullity; and that, accordingly, the application, which can only have life if it is assumed that the Employment Tribunal proceedings have some existence, is misconceived; and that I have no jurisdiction to grant leave either to continue proceedings which are a nullity or retrospectively to grant leave so as to permit proceedings which are a nullity to have some form of life after legal death.  He relies, in particular, upon the fact that Lord Brown specifically referred to section 42 as being on all fours with section 139(2) of the Mental Health Act.  
20.	Mr Edwards has drawn my attention to a decision of the Court of Appeal in November 1999, which is unreported: Kenneth Johnson v David Valks.  That was a decision of the Court of Appeal in which the appellant appeared in person and the respondent neither attended in person nor was represented.  In that case, the appellant had commenced proceedings in the High Court; they were subsequently transferred to the County Court.  Being the subject of a civil proceedings order, the claimant had first obtained leave of a High Court judge permitting him to commence the proceedings.  During the trial of the proceedings, a matter of serious procedural impropriety arose which persuaded the trial judge to dismiss the action with costs.  The claimant, apparently relying on something said by the judge, gave notice of appeal to the Court of Appeal and the hearing was set down for the appeal to be heard.  However, before that could happen, a prior issue had arisen as to whether, pursuant to the civil restraint order, he was required to obtain permission from the High Court as a vexatious litigant to pursue his appeal, which, as the rules had then developed, would in any event involve him making an application to the Court of Appeal for permission to appeal against the decision of the trial judge.  The only issue of principle before the Court of Appeal, therefore, was whether Mr Johnson required him to obtain permission under section 42 before applying for permission to appeal.  
21.	The Court of Appeal, although deeply sceptical about whether the position was a justifiable one as a matter of general principle, given that every litigant, whether vexatious or otherwise, has to obtain permission to appeal to the Court of Appeal, nonetheless concluded that the provisions gave no escape from the requirement that, before applying for permission to appeal to the Court of Appeal, a person subject of a civil proceedings order had, in addition, to apply to a High Court judge for leave to do so.  That, therefore, concluded the argument on the sole question in issue.  However, the Court of Appeal then took the flexible procedural step of reconstituting itself as the High Court and gave Mr Johnson permission to apply for permission to appeal under section 42 so as to permit him then to appeal.  Mr Edwards says that that course is a course which is open to me dealing with his application in respect of the Employment Tribunal proceedings which he has commenced without first obtaining leave of the High Court.  
22.	In my judgment, there are a number of reasons why I am constrained to decline to pursue that course.  First of all, the House of Lords decision is authority which overrides that of the Court of Appeal, not only in terms of the court hierarchy but also because the decision of Seal postdates the 1999 decision of the Court of Appeal.  The case of Seal is very clear that the Employment Tribunal proceedings commenced by Mr Edwards without leave of the High Court having first been obtained are a nullity, and therefore there is nothing to which any retrospective granting of leave could attach.  
23.	Secondly, the issue for determination by the Court of Appeal in Johnson v Valks was not a question of whether proceedings commenced without leave of the High Court were a nullity or could be resurrected as a result of a procedural irregularity being remedied; the issue there was whether, in proceedings validly instituted, there was a need for a vexatious litigant to go through a two‑stage permission process before reaching the Court of Appeal, and that whether, if he failed to do so, the appellate court could reconstitute itself and put that procedural irregularity to rights where the proceedings were extant.
24.	The third point is that Johnson v Valks was a decision taken by the Court of Appeal without any assistance from legal representation on either side.  The appellant was in person, the respondent did not appear at all, and the court was very ill at ease in reaching the decision that it did.  Indeed, the court went out of its way to indicate that it would be open to the respondent if it thought fit to apply to the High Court to set aside the permission to institute the proceedings in the Court of Appeal which the court had just given to Mr Johnson.  Therefore, it was very much in doubt as to whether the course which it had adopted was the correct course.  
25.	Given, therefore, the intrinsic limitations of the authoritative nature of that decision of the Court of Appeal, and given the binding authority of Seal v Chief Constable of South Wales Police, I conclude that Mr Staddon's primary argument is correct and that this court does not have any jurisdiction to entertain an application of the kind brought by Mr Edwards.  Therefore, the application falls for lack of jurisdiction.
26.	Where that leaves Mr Edwards is that there are no valid, and nor have there ever been any valid, Employment Tribunal proceedings brought by him against Brecker Grossmith Ltd in respect of the claimed deduction from wages.  If he now wishes to proceed in the Employment Tribunal against Brecker Grossmith Ltd for that sum, then he needs to apply to the High Court for leave to do so.  Similarly, if he wishes to pursue that contractual claim in any other forum, he would equally have to apply for leave from the High Court to do so.  I am only seised of the application which he has made, which, as I have indicated, is a misconceived one.  I am not prepared to deal substantively with any speculative application to commence fresh proceedings in circumstances which may be wholly different from those which applied when this application was made.  
27.	Accordingly, this application is refused.
28.	MR STADDON:  My Lord, I have an application to make.  I do not believe, given what happened to my skeleton argument, but I hope that your Lordship may have received a schedule of costs? 
29.	MR JUSTICE WILKIE:  No.  It is probably in the same place as your skeleton argument.
30.	MR STADDON:  My Lord, may I hand up to your Lordship a schedule of costs?   
31.	MR JUSTICE WILKIE:  Yes.
(Handed).
32.	MR STADDON:  My Lord, the third authority in the little bundle, which is one of the many Ewing cases, Mr Ewing being an enthusiastic and persistent vexatious litigant, is Court of Appeal authority which indicates that on such an application the interested party, ie the potential defendant, can make an application for costs.  
33.	My Lord, I would invite you to look at paragraph ‑‑ I am afraid it is not a proper Law Report, it is only a transcript ‑‑ but paragraph 9 deals with the judgment:
"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."
34.	This point was not taken before the judge.  Then if you go on to paragraph 15, my Lord, referring to the new rules:
"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."
35.	MR JUSTICE WILKIE:  Right.
36.	MR STADDON:  In fact, they did not, but the appeal was allowed because the costs which were (Inaudible) on an interim basis were so enormous that the court did not allow it, and I think that is pretty clear from paragraph 17.  
37.	So, my Lord, I would respectfully submit that the interested party has locus to apply for its costs.  The normal rule is that costs follow the event under the CPR.  Your Lordship I do not think will have any doubts whether the interested party succeeded in resisting the application and has been of some assistance to the court.  I no longer have a costs schedule because your Lordship has it ‑‑ I now have a copy of the costs schedule.  Your Lordship might think that you benefited from the additional documents which were put before your Lordship, that the brief fee is modest enough in all the circumstances.
38.	MR JUSTICE WILKIE:  The material which this covers, what does this actually cover?
39.	MR STADDON:  Well, it certainly does not cover anything in front of the Employment Tribunal; it only deals with this application.
40.	MR JUSTICE WILKIE:  Right.  It covers the various witness statements, et cetera? 
41.	MR STADDON:  It would cover the one witness statement which was produced.
42.	MR JUSTICE WILKIE:  That was of Mr Richard Brecker, the one at page 42 to 49, is it? 
43.	MR STADDON:  Yes, my Lord.
44.	MR JUSTICE WILKIE:  I have not really delved into it.
45.	MR STADDON:  No, my Lord, but under other circumstances it might well have been of assistance to your Lordship.  
46.	MR JUSTICE WILKIE:  Yes, okay.
47.	MR STADDON:  My Lord, I doubt if there have been as many costs schedules as modest as this before your Lordship in this court.
48.	MR JUSTICE WILKIE:  Yes.  Thank you.  
49.	Mr Edwards? 
50.	THE CLAIMANT:  I have not sought any advice on costs, so I don't think I can deal with any submissions now.
51.	MR JUSTICE WILKIE:  Well, I am invited to make an order for costs and to summarily assess them, on the basis that it is said that it is clear from the case of Ewing v News International that an interested party, such as Brecker Grossmith, who are served with notice of the proceedings and to attend and argue, are entitled in principle to have their costs as if they were as much a party of the application that you make as the Attorney‑General, so that as a matter of principle, as you have not succeeded and they have, then normally costs would follow the result.  It is also said, I do not know whether you have seen this schedule ‑‑ 
52.	THE CLAIMANT:  It came late last night.
53.	MR JUSTICE WILKIE:  ‑‑ that the sums claimed are modest at any rate in the experience of this court.  I am invited to exercise the power I undoubtedly have summarily to assess the costs.  I think, is it £6,600, is that it, the total? 
54.	MR STADDON:  Yes, my Lord.
55.	MR JUSTICE WILKIE:  So this is your opportunity to say, one, whether as a matter of principle you object or you say I should not award the costs; and, two, how much I should summarily assess them as.
56.	THE CLAIMANT:  Well, first of all, I think it is fair to say we are all here because of the orders of the two judges previously.  Otherwise my claim would have been dealt with by post, as I was seeking.  So I think it's fair to say, without me being partisan, that I have never asked for a hearing and would not have asked for a hearing, and I have been asked to come here today.  I have ill people in the family ‑‑ 
57.	MR JUSTICE WILKIE:  I think what is said is, well, given what they both said about the jurisdictional problem, you might have given it some thought and decided to withdraw the application and to start afresh.
58.	THE CLAIMANT:  Well, it was a decision by one of the judges, I think the latter one, even to call the hearing.  There wasn't a warning in costs on ‑‑ 
59.	MR JUSTICE WILKIE:  No, well, he would not, would he?
60.	THE CLAIMANT:  But I have not sought any advice on costs and I'm not able to deal with it at all.  Suffice to say I have been trying to settle this case for a long time, and there was a fax from yesterday morning at half past nine where I'm saying it's not too late to settle the case now, which I've been seeking to do for over a year.  
61.	MR STADDON:  (To the claimant)  (Inaudible) without prejudice?
62.	THE CLAIMANT:  No.  It's an open letter.  Can I show it to you? 
63.	MR JUSTICE WILKIE:  I will take it from you that you have been trying to persuade them to pay up some money and settle it.
64.	THE CLAIMANT:  Well, I don't actually ask for that, I just say settle the case.  I didn't actually say it's got to be a certain sum.  I mean, for example, it's beyond question ‑‑ 
65.	MR JUSTICE WILKIE:  Well, did you offer to withdraw your application?
66.	THE CLAIMANT:  Well, the words I used was "settle" and I've been saying that with ACAS, and when ACAS finished I've been seeking to settle.  I'd rather not go through any hearings, with family ill‑health and my health not being the best as well at the moment.  For example, I'm not able to work at the moment due to ill‑health.
67.	MR JUSTICE WILKIE:  This is a letter direct to the client.  Have you seen this?  Are you aware of it? 
68.	MR STADDON:  My Lord, I saw it, but I did not think it was of any assistance.  I cannot remember what it says.
69.	MR JUSTICE WILKIE:  Not too late to settle this case.
70.	THE CLAIMANT:  It's not the only one ‑‑ 
71.	MR JUSTICE WILKIE:  Will they agree to seek to settle this case whereby time and costs may be mitigated?  That is the effect of it.
72.	THE CLAIMANT:  I didn't receive a response.  I would have liked to have done and we could have saved being here, with my poor health and my X's poor health.  And, as I say, I've not had any advice on costs at all.  So I saw this after hours yesterday, (Inaudible), and so I've not been able to take any advice on it at all.  Unfortunately, with my ill‑health, I'm living on only about £100 a week at the moment, so my ability to pay anything at all is limited, to say the least.  The rationale for going for this claim of approximately £3,500 is to recover money which I am advised by solicitors is due.  If they said it wasn't due at any stage, it wouldn't have gone in, and after the event if they'd said it was without merit ‑‑ for example, I prefer not to bring out any fresh section 42 applications, I prefer not to do that at all, I prefer to have the matter settled completely, and the idea of facing costs of double the amount of the claim not only is disproportionate but I've not been able to take any advice on it at all.
73.	MR JUSTICE WILKIE:  Thank you very much.
74.	It seems to me that the interested party is, as a matter of principle, entitled as any other party to their costs, relying on the authority of Ewing v News International Limited & Others to which I have been referred.  Mr Edwards has made his application; he has attended to argue it and he has not succeeded.  The application was misconceived for the reasons that I have identified, for reasons which were being foreshadowed by the High Court judges who dealt with the matter before I conducted this hearing.
75.	The point which has prevailed has been the main point, the jurisdictional point, relied on by the respondent.  I have not gone into, nor have I had to go into, the nuts and bolts of the matter, in particular as extensively covered in a witness statement given by the interested party.  In those circumstances, I will assess the costs at £4,000.