Jersey Unreported Judgments

2001/173

ROYAL COURT

(Samedi Division)

2^nd August 2001 

Application by the Defendant for an Order enjoining the Plaintiffs from commencing any proceedings or taking any further steps in existing proceedings (whether in the Royal Court or the Petty Debts Court whatsoever against the Defendant.

Whether such relief should be granted.

Advocate A. D. Hoy for the Plaintiffs.

Advocate K. Dixon for the Defendant

judgment

The Bailiff:

1.        This summons was issued by Hambros Bank (Jersey) Limited ("Hambros") in the context of proceedings instituted by the plaintiffs, David Eves and Helga Maria Eves ("the plaintiffs") in May, 1998.  The summons seeks orders -

"That pursuant to the Royal Court's inherent jurisdiction the plaintiffs should be jointly and severally enjoined from commencing any proceedings or taking any further steps in existing proceedings (whether in the Royal Court or the Petty Debts Court whatsoever against [Hambros] and any of its servants or agents unless the plaintiffs have first obtained leave from the Royal Court to commence and/or take further steps in such proceedings; and

That the plaintiffs pay the costs of and incidental to this summons on a full indemnity basis."

2.        The parties agreed that the summons raised two issues which should be dealt with separately, viz.

(i)        whether, as a matter of law, the Royal Court has jurisdiction to grant the relief sought and, if so,

(ii)       whether the relief should in fact be granted.

3.        On June 19^th, 2000 the Court delivered judgment, which is reported at 2000 JLR 221, on the first issue.  The Court held that it did have jurisdiction to grant the relief sought.  This judgment is only concerned with the question of whether the relief should, in the exercise of our discretion, be granted.

4.        As we stated in our judgment on the first issue, there is a long history of litigation between the parties.  The history has been described on many occasions in judgments delivered by different courts, and we will not repeat it, although it will require some analysis, to which we return below.  The plaintiffs have not, however, confined their litigious activities to Hambros.  The States of Jersey Tourism Committee, the Viscount, St. Brelade's Bay Hotel Ltd., Messrs. Crills and various others have all found themselves arraigned before the Court at the instance of the plaintiffs during the eleven years which have followed the collapse of the plaintiffs' businesses.  Many judgments have issued from this Court, there have been several appeals to the Court of Appeal, and the plaintiffs have even appeared before the Judicial Committee of the Privy Council.  On almost every occasion they have lost the argument.  We have been told by Mr. Dixon, who appeared for Hambros, that two actions remain extant.  One is an Order of Justice of May or June 1995 which contains an allegation that Hambros breached a duty of confidence in 1990 by discussing the plaintiffs' affairs with representatives of the Tourism Committee.  The second is an Order of Justice issued on 25^th May 1998 (PL 98/79) ("the 1998 proceedings").  The Order of Justice runs to forty pages.  It is in the context of that Order of Justice that this summons has been issued.

5.        Since the commencement of the 1998 proceedings Hambros have issued summonses, inter alia, to strike out the action, to obtain security for costs, and to stay the action until such time as the plaintiffs have settled outstanding orders for costs made against them in earlier proceedings.  In relation to the last summons, the Judicial Greffier ordered, on 13^th October 1998, that the 1998 proceedings be stayed until the first plaintiff, Mr. Eves, had paid the sums of £728 and £918.33.  That order has been appealed to this Court but the appeal has been held over pending the outcome of this summons.

6.        Hambros' primary submission is that the plaintiffs are vexatious litigants and for that reason the Court ought to exercise its jurisdiction to grant the relief sought.  Counsel relied on a passage from the judgment of Lord Bingham of Cornhill CJ in AG for England and Wales v. Barker, (16^th February 2000) unreported.

""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."

Another passage later in the same judgment is also helpful:-

"From extensive experience of dealing with applications under section 42 the court has become familiar with the hallmark of persistent and habitual litigious activity.  The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim;  that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action;  that the claimant automatically challenges every adverse decision on appeal;  and that the claimant refuses to take any notice of or give any effect to orders of the court.  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."

Although those passages are concerned with the interpretation of the phrase "vexatious civil proceedings" under S 42 of the Supreme Court Act 1981, we respectfully adopt them for the purposes of this summons.

7.        Mr. Dixon submitted that the history of legal proceedings instituted by the plaintiffs over the period from 1992 onwards was relevant for the purpose of determining whether the plaintiffs were vexatious litigants, irrespective of whether or not Hambros was a party to those proceedings.  The Court should, in counsel's submission, look at the matter in the round.  If this were an application by the Attorney General pursuant to the Civil Proceedings (Vexatious Litigants)(Jersey) Law 2001, that submission would clearly be right.  But this is not such an application.  This summons is issued by one particular party who has been involved in litigation with the plaintiffs.  It seems to us that Hambros cannot draw support for its application from the experience of other parties involved in such litigation.  The duty of the Court is to examine the conduct of the plaintiffs in relation to Hambros alone and then to consider whether the Court's process is being obstructed and abused.

8.        Counsel submitted that eight actions had been brought against Hambros by the plaintiffs but did not specify them precisely.  We do, however, accept that there were a number of applications made during the tortuous course of Hambros' attempts first to recover loans made to Glendale Hotel Holdings Limited and secondly to enforce their security against the plaintiffs' home, a property called "The Rest".  But it is to be noted that these applications were made in the context of proceedings instituted by Hambros and not by the plaintiffs.  It was Hambros who began proceedings in October 1992 against Glendale Hotel Holdings Limited and in June 1993 against the plaintiffs to recover a Home Loan.  It was Hambros who began dégrèvement proceedings in order to gain legal title to The Rest.  It was Hambros who began eviction proceedings to gain vacant possession of The Rest.  All the plaintiffs' applications were made in their long and ultimately unsuccessful struggle to save their businesses and their home.  Every single issue which could be taken was taken.  They kept, if we may adapt the words of the Lord Chief Justice in Attorney General for England and Wales v. Smith, on and on litigating when on any rational and objective assessment the time had come to stop.  But they were, in the context of these applications and representations, defendants and not plaintiffs.  No doubt on many occasions Hambros wished that the decision had not been taken to accept the plaintiffs as customers and to lend them money in the 1980's.  But all banks and money-lenders take the commercial risk as part of their business that some customers will turn out to be awkward. 

9.        On four occasions the plaintiffs have instituted proceedings against Hambros.  On 5^th May 1994, they issued an Order of Justice, which was signed by the Deputy Bailiff;  this Order of justice was struck out as disclosing no cause of action on 25^th July 1994.  On 8^th June 1995, the plaintiffs issued an Order of Justice, which was signed by the then Deputy Bailiff;  this appears to have been struck out but the papers before the Court are not clear.  Counsel for Hambros submitted that there was an outstanding issue relating to an alleged breach of confidence to which we have referred above. On 23^rd September 1995, Mrs. Eves issued an Order of Justice against Hambros and the Tourism Committee alleging, inter alia, conspiracy to procure economic damage to the plaintiffs.  This action (95/185) was struck out as against Hambros on 19^th January 1996.  On 25^th May the 1998 the plaintiffs commenced the 1998 proceedings;  the Order of Justice runs to 40 pages.  It is in the context of that Order of Justice that this summons has been issued. 

10.      Have the plaintiffs passed the threshold between the awkward customer and the vexatious litigant?  They are clearly close to the line.  Even in 1995 Lord Hoffman in the Privy Council (reported in Eves v. Hambros Bank (1995) JLR 344 at 350) described Mr. Eves as "an experienced litigant".  The institution of the 1998 proceedings brings the plaintiffs up to the wire.  As counsel for Hambros correctly observed, they are in the last ditch saloon.  The 1998 proceedings re-visit a number of issues which have already been the subject of adjudication in this and higher courts.  Even Mr. Hoy, who appeared for the plaintiffs and argued their case with commendable force, conceded that parts of the Order of Justice would be likely to be struck out if that summons issued by Hambros were to be heard.  Mr. Hoy argued, however, that the plaintiffs were not vexatious litigants.  Their conduct had not been disproportionate to the disputes in which they had been involved.  He submitted that there remained unresolved issues between the parties which required to be determined.

11.      We make no finding on that last submission which will be a matter for the Court which hears the strike-out application if it proceeds.  On balance we have reached the conclusion that the relief sought by Hambros ought not to be granted.  Within the limitations which we have imposed, we do not consider that the plaintiffs have yet crossed the line into vexatious litigation.  It is a serious matter to hold that litigants should be prevented from exercising their constitutional right of access to a court of justice without the leave of a judge .  It is true that the plaintiffs have failed to comply with many orders of the Court condemning them to pay the legal costs of Hambros.  We were told that costs running into tens of thousands of pounds had been incurred by Hambros in the context of the 1998 proceedings.  As against that the plaintiffs would say that they have lost everything during the course of the litigation.  Leaving aside financial loss, Hambros is a body corporate, however, and has not suffered the anxiety and distress which might have been suffered by an individual litigant.  We do not think that the plaintiffs have yet reached the stage of obstructing and abusing the process of the Court.  Yet they are close to that point.  Should other proceedings be instituted against Hambros or indeed other parties arising out of the loss of the plaintiffs' businesses and home, the Attorney General may wish to consider whether an application should be made to the Court under the Vexatious Litigants (Jersey) Law 2001. 

12.      As we have stated, the plaintiffs have failed to comply with many orders of the Court in relation to costs incurred by Hambros.  The current position is that the 1998 proceedings are stayed until payment of certain of those costs' orders.  Subject, of course, to the outcome of any appeal from the Judicial Greffier's order, this means that the plaintiffs must accept the ordinary risks of litigation like any other party.  If they wish to pursue their claims against Hambros, they must first of all respect the orders already made against them in those proceedings.

13.      In the exercise of our discretion, we find that the balance tips against the issue of the injunction sought by Hambros.  Our conclusion is that the summons must therefore be dismissed. 

Authorities

AG for England and Wales v. Barker (16^th February 2000) unreported

Supreme Court Act 1981: s.42.

Eves v. Hambros Bank (1995) JLR 344

Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001