England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice The Strand London, WC2A 2LL
		3 December 2020

MR JUSTICE MARTIN SPENCER:

1. By this application, Her Majesty's Attorney General applies for a Civil Proceedings Order against the respondent pursuant to section 42(1) of the Senior Courts Act 1981 in response to the respondent's alleged habitual and persistent institution of vexatious proceedings or the making of vexatious applications. It is the applicant's contention that the respondent has made a significant number of claims and applications which have been certified by various judges as being "totally without merit", and that a number of such claims or applications have been brought in breach of General Civil Restraint Orders (hereinafter GCROs).
2. The respondent has not attended upon this application, although he was given notice of it. At the beginning of the hearing he appeared through counsel Mr Timothy Becker purely for the purpose of seeking an adjournment, but that was refused, and I refer to the judgment of Dingemans LJ given earlier in this hearing. In the circumstances the hearing has proceeded without any representations from the respondent orally.
3. However, we did receive this morning a bundle of documents including a skeleton argument and a document entitled "defence", together with various other documents which were submitted by the respondent, and we have considered those in reaching our decision.
4. The background to this matter is that over the last ten years the respondent has engaged in a significant amount of litigation against various defendants, and there is exhibited to this judgment a schedule of such applications and claims, which was originally exhibited as GW1-1 to the witness statement of Miss Gwen Wright, and that shows almost eighty claims or applications made by the applicant either in his own name or in the names of others, and the outcome to those claims or applications where known.
5. The majority of the defendants were government departments: The Crown Prosecution Service; The Ministry of Justice; Her Majesty's Treasury; The Government Legal Department; The Foreign & Commonwealth Office; and Her Majesty's Revenue & Customs, but there were also numerous private companies involved.
6. The respondent was able to make these claims or applications despite having spent a considerable amount of time during this period in prison. On 17 December 2013, in the Crown Court at Harrow, the applicant was convicted of seven counts of fraud, and three counts of doing an act tending and intended to pervert the course of justice, and on 18 December 2013 he was sentenced to a total term of imprisonment of twelve years.
7. Over the last ten years, General Civil Restraint Orders have been made as follows:

(i) 24 August 2010, a GCRO made by HHJ Mitchell upon striking out a claim brought against Lloyds TSB Finance Limited on the basis that it was identical to a claim that had previously been struck out, and deemed totally without merit, the judge noting that the respondent had brought claims against Barclaycard, T Mobile, Ladbrokes and Morgan Stanley, which had all been struck out and certified as being totally without merit. The GCRO was for a period of two years.

(ii) 14 January 2013, GCRO made by Newey J upon striking out a claim deemed totally without merit, and taking into account five other claim forms brought against private companies, individuals, and a government agency, all dismissed, and deemed totally without merit. There had also been a number of claims brought in breach of the GCRO which had been made by Judge Mitchell. The GCRO by Newey J was for a further two years.

(iii) 31 July 2015, a GCRO made by Newey J upon the court dismissing and certifying as being totally without merit the claim before it, and noting that similar orders had been made in litigation brought by the respondent against The City of London Corporation and the European Union. This GCRO was for a further two years, expiring on 23 July 2017.

(iv) 14 July 2017, a GCRO made by Andrews J upon refusing a claim for permission to bring judicial review proceedings against the Ministry of Justice, and certifying the claims made in that action and underlying claims made in the county court to have been totally without merit. That GCRO remained in effect until 23 July 2019.

(v) 7 February 2018, a GCRO issued by Flaux J upon dismissing the respondent's appeals against the orders of Newey J and Andrews J, all deemed totally without merit, and noting that dismissal of the applicant's applications for permission to appeal in seven further actions all certified as being totally without merit. The GCRO by Flaux J was for a further two years, expiring on 7 February 2020.

8. In the course of his judgment on 14 January 2013, Newey J said:

"[27] In the circumstances it is abundantly clear that the claimant has brought numerous claims which were totally without merit, and that he has been prepared to persist in doing so even after a Civil Restraint Order has been made against him. I should point out that a Civil Restraint Order will not have barred proceedings being brought in the High Court, but it ought nevertheless to have served as a warning to the claimant not to bring groundless proceedings. Even aside therefore from the concerns which arise from the histories of these dealings brought in the name Ken Roy Brown, it seems to me that I am amply justified in taking the view that the claimant should be unable to bring proceedings in the High Court or county court without the approval of a designated judge. It appears to me moreover that this is a case in which an Extended Civil Restraint Order would not be sufficient or appropriate. It is to be noted in that connection that the claims brought by the claimant in the past have not been limited to a single subject matter or a particular defendant. It is noteworthy too that he has persisted in litigating despite the earlier Civil Restraint Order."

9. In dismissing the respondent's appeal against the first and second counts on the indictment from December 2013, and the counts of perverting the course of justice, the Court of Appeal, Criminal Division, stated in their judgment of 15 December 2017 that all the claims commenced by the respondent were supported by, "Bogus documents, and sought to recover huge debts said to have been owed by different companies connected with the Libyan government to the applicant's co-accused Ken Roy Brown". The judgment went on to record that the defendants to the claims, that is the Libyan Foreign Investments Company, the Libyan Authority and Capitana Seas Limited all existed:

"But the claims were completely bogus. No money was owed at all. However, by a series of deceptions and forgery the applicant managed to pass himself off as a representative of the defendant companies, and admitted liability for the debts said to have been owed. He thus induced the High Court to enter judgment in favour of the claimant, and then sought to enforce the judgments."

10. The respondent's dishonesty and deception continued whilst he was an inmate at Her Majesty's Prison Swaleside. On 20 February 2017 Proudman J made an order dismissing an appeal by the respondent against the decision of HHJ Mitchell, and certified that it was totally without merit. In the course of her judgment, Proudman J said:

"Mr Gayle-Childs, in an effort to circumvent this direction and also the CRO has brought claims in the names of fellow prisoners. He has brought claims against the CPS seeking to challenge Mr Gayle-Childs's criminal convictions in the name of a Mr Rick Gammon, also a prisoner at HMP Swaleside. A further email from Nathan Paralegals dated 23 March 2016 was received by Her Majesty's Treasury, saying that they act on behalf of the trustees of the GC Family Trust (the same entity of which Mr Gammon was alleged to be the trustee in the claim against the CPS) referring again to the judgment of Master Eastman, stating that it is dated 14 September 2012. The judgment was not attached. The court ruled that the claims were totally without merit, and abuse of process."

11. Most recently there has been a huge deluge of claims in the Bristol County Court which were the subject matter of a judgment handed down by HHJ Paul Matthews on 6 October 2020. Reference thereto is made by Miss Gwen Wright in her witness statement dated 17 November 2020 on behalf of the applicant at paragraphs 9 and 10 as follows:

"9. The County Court at Bristol has recently been able to draw together claims issued or instigated by Mr Gayle-Childs and his associates. I have attached the detailed judgment of HHJ Paul Matthews handed down on 6 October 2020. The Honourable Judge was considering six applications before him, five of which were issued in the name of David Smith, and one by Kinloss Property UK Limited. Reviewing previous judgments in matters instigated at the behest of Mr Gayle-Childs, he comments at paragraph 76:

'It is clear from this material that Mr Gayle-Childs has a history of embarking on litigation that is totally without merit by means of a web of stooges, nominees and aliases, using accommodation addresses and other forms of pretence, and bringing collusive claims which are then apparently settled by consent, leading to orders which may enable registers of title to be changed. Whilst this does not enable the court to conclude that everything he does is fraudulent, the duration and sheer scale of these techniques must put the court on its guard where he is concerned'."

Then, Miss Gwen Wright continues at paragraph 10:

"10. Having considered the applications before him, he concluded at paragraph 92:

'On the material before me in this case, I am entirely satisfied that Mr Gayle-Childs is behind each of these applications. All roads lead back to him. He is using Mr Smith's name (sometimes as director or agent of another alleged entity) to carry on proceedings against third parties. The various ways in which he has conducted litigation in the past are also seen clearly in these applications. The use of accommodation addresses, the names of defunct corporate structures, the liberal use of purported assignments of causes of action and nominees. The use of purported consent orders and so on. In my judgment in pulling the strings, and making his puppets dance as he has done here, he is personally susceptible to a Civil Restraint Order'."

12. The above paragraphs illustrate the way in which just some of the claims and applications set out in the Schedule to this judgment were vexatious and persistently totally without merit, and were pervaded with dishonesty and deception. In the course of his oral submissions Mr Carey for the applicant has drawn attention to some of the claim forms which have been issued, and it is unnecessary for me to repeat what he has said about those, but they illustrate and confirm the course of conduct by this respondent, bringing unmeritorious claims which are attempted to launch a collateral attack upon previous decisions of the court and indeed upon his conviction in December 2013.
13. The respondent has today submitted a skeleton argument and a document headed "defence" in response to today's application. His main point is that in the application and documents in support, the applicant has failed to refer to his role - and he would say employment - by the Secretary of State for Justice as a legal support worker since 2016. He submits that the claims made through him are explained on the basis of this role, and in that regard he seeks an estoppel to prevent this application proceeding further.
14. I have no reason to doubt that he has, in the particular prison in which he was an inmate at any time, adopted this role of legal support worker in order purportedly to assist other prisoners at the prison. However, the point is that the role is just that, to assist other prisoners who may have legal issues. What it does not do, but what he has used that role to do, is to subvert the process and use those prisoners as his, in the words of Judge Matthews, "stooges" to pursue his own interests and in particular his interests in relation to the obtaining of a licence pursuant to the EU Regulations, bringing sanctions against the State of Libya.
15. The judgment of Judge Matthews, referred to by Miss Gwen Wright, and from which I have quoted, wholly answers all the points made by the respondent in the documents he has submitted today.
16. I deal with the legal background. Section 42 of the Senior Courts Act 1981 provides:

"(1) If on an application 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 proceedings whether in the High Court or the family court or any inferior court, and whether against the same person or against different persons; or

(b) made vexatious applications in any proceedings whether in the High Court or the family court or any inferior court, and whether instituted by him or another

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."

17. In Attorney General v Jones [1991] WLR 859 the Court of Appeal decided two points: one was that a section 42 order embraced applications to or in the Court of Appeal as well as below. The other was that a person against whom a vexatious litigation order was sought could not seek to argue anew the findings which had already been made against him by the courts in which he had been litigating. Lord Donaldson of Lymington MR said this at page 863:

"The fifth and last issue of law arose out of Mr Jones' wish to challenge the conclusion of various judges in the underlying proceedings that his conduct in those particular proceedings had been vexatious or had involved an abuse of the process of the court. We ruled that he was not free to do so. If any such conclusion was, or was thought by Mr Jones to be, erroneous, the remedy was to appeal in those proceedings or, where it was said that the judgment was vitiated by the fraud of other parties, to take appropriate steps to have the judgment set aside. But if that was not done, the decision must stand and is capable of forming the basis for the court being satisfied upon an application under section 42 that Mr Jones had habitually and persistently and without any reasonable ground acted in the manner referred to in subsection (1)(a) and/or (b)."

18. I comment that again, as part of the submissions in writing made by the respondent today, he has sought to challenge some of the decisions relied upon by the Attorney in this application made by other judges over the years. As the case of Jones makes clear, he is not entitled to do so, and those decisions must stand as being legitimate decisions made in accordance with the law.
19. In the same case of Jones, Staughton LJ explained that there must come a time when it is right for a court to exercise its power to make a Civil Proceedings Order against a vexatious litigant. His Lordship gave two reasons: (1) opponents who are harassed by the worry and expense of vexatious litigants are entitled to protection; and (2) judicial resource is barely sufficient to afford justice currently without unreasonable delay to those who have genuine grievances.
20. Both of those reasons have application in the present case. Mr Carey in his submissions has referred to the harassment of not just government departments but also the employees employed within them, and individuals, for example in the Crown Prosecution Service, with allegations made which amount to serious professional misconduct if they were true, and which must have caused enormous worry to those employees, even though they were of course totally without merit on all occasions.
21. The term "vexatious" was defined by Lord Bingham of Cornhill, Lord Chief Justice, in Attorney General v Barker [2001] FLR 759 as follows:

"'Vexatious is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process."

Lord Bingham also stated that:

"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."

22. On any view, on those definitions, the conduct of this respondent has been vexatious, indeed it is difficult to imagine conduct being more vexatious in those terms.
23. In Her Majesty's Attorney General v Covey [2001] EWCA Civ 254, an unreported decision of 19 February 2001, Lord Woolf of Barnes, Chief Justice, cited at [56] with approval a passage from the judgment below of Rose LJ sitting in this court, where he said:

"The question is whether it is a necessary prerequisite for the making of an order under section 42 that the repetitious behaviour of which complaint is made has necessarily either to be directed against the same defendant or to arise from the same subject matter.

In my judgment, that is not the position. Granted that repetitious conduct is a necessary prerequisite for the making of an order, what gives rise to that repetitiveness necessarily depends, it seems to me, on the circumstances of the particular case. In making the determination whether or not there is that necessary element of repetition one looks at the whole history of the defendant's litigious activity. In some cases that activity will focus upon a particular defendant. In some cases it will focus upon a particular grievance. In some cases it may be represented by numerous claims against a wide range of defendants in circumstances where no reasonable cause of action exists. In this last category of case, as it seems to me, the conditions of section 42 may be fulfilled just as they may be if a particular defendant or a particular grievance is the focus of the defendant's activity. As the passages in the judgment in Vernazza to which I earlier referred, make plain, one has to look at the whole of the circumstances, the way in which the proceedings were instituted, whether with or without reasonable cause, and also the way in which subsequently they were conducted by way of hopeless appeal or otherwise. All of those matters have to be considered."

24. We have had regard to the principles and guidance set out in these cases in considering the present application. In support of this application, the applicant submits that there is a very significant number of proceedings that have had little or no basis in law, referring to some twenty-four claims which, upon proper scrutiny, were hopeless, some of which Mr Carey has taken us through today.
25. Furthermore, the value of many of the claims were inflated to the point of absurdity. Thus in March 2015 the respondent brought a claim against the Crown Prosecution Service alleging fraud by false representation resulting in the respondent's wrongful conviction, and claiming damages of £1.75 million. On the same day the respondent brought a claim against Her Majesty's Treasury seeking £25 million or in excess thereof for "tortious interference with contractual relations, and defamation". In June 2015 the respondent brought a further action against the CPS, claiming in excess of £2.5 million for "tortious interference with contractual and business relations founded in perverting the course of justice, and malicious falsehood, in order to cause harm, pain and suffering, and financial loss". The claim was found by Master Yoxall to be an abuse of process, and was certified as totally without merit. These are but a few of the very many instances relied upon.
26. Referring to the respondent's claims and applications, and the comments and judgments made by a large number of judges in dismissing them as totally without merit, the applicant submits that they cumulatively paint a picture of, "Abuse of the court system, and an attempt to inconvenience and harass various defendants on a number of occasions with either the identical or very similar subject matter".
27. Furthermore, the applicant points out that she is unaware of any claim in which the respondent has been successful. The claims are typically impenetrable, and very often allege serious criminality or misconduct which would, if true, bring the weight of a professional regulator down on the defendants. Despite the seriousness of the allegations, they are short on detail, and utterly without a proper foundation. The applicant submits:

"Time and again over the last ten years of unsuccessful and depressive litigation brought by the respondent, it has been found to be abusive. The very fact that it was brought in breach of GCROs is indicative of the fact that the respondent will not stop or, worse, will coerce others into allowing their names to be used to prevent detection of the claim as having been brought in breach of a GCRO."

28. We accept in full the submissions of the applicant. We have no doubt that the issuing of successive GCROs has been ineffective in deterring the respondent from continuing to issue claims and to make applications which are totally without merit. The scale of the respondent's litigation in the last ten years, amounting to some eighty claims and applications, is breath-taking. Not only has this engaged time and expense on the part of myriad defendants, including a significant number of government departments and private entities, but has also had the potential seriously to undermine the court system, and rob it of its resources by wasting already scarce judicial time in considering and determining these claims and applications.
29. In the circumstances we have no doubt that the conduct of the respondent has been such as to come squarely within the provisions of section 42 of the Senior Courts Act 1981 in that he has habitually and persistently and without reasonable ground both instituted vexatious proceedings in various courts, and has made vexatious applications in such proceedings. We consider that such an order is necessary to prevent further abuse of the legal system by the respondent whether in his own name, aliases used by him, or companies created or controlled by him.
30. One advantage of an order under section 42 over a GCRO is that a GCRO can only be for a maximum of two years. A Civil Proceedings Order has no such limitation. Accordingly, we allow this application, and will make a Civil Proceedings Order against the respondent without limit of time.

LORD JUSTICE DINGEMANS:

31. I agree with the judgment of Martin Spencer J, and agree with the order he proposes to make.


 


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LATER

MR JUSTICE MARTIN SPENCER:

32. Further to the judgment I have just delivered, an application is made on behalf of the Attorney General for the costs of this application in the total sum of £24,407.27. Firstly, the application having been successful, in principle the applicant is to have her costs. So far as the quantum is concerned, having considered the hourly rates claimed and the work done on documents, for which the sum of £10,649 is claimed, it seems to me that the sum claimed is wholly reasonable. The documents in this case have been extensive, over eight hundred pages were in the trial bundle, and I would anticipate that that is just a proportion of the total documents which have needed to be considered in this case. In addition, the other fees, including counsel fees, all appear to me to be wholly reasonable. And in the circumstances, I would allow the application for costs in the sum sought.