The Hon. Michael Beloff, Q.C., Commissioner.
IN THE MATTER OF HG
AND IN THE MATTER OF AN APPLICATION FOR AN INTERIM INJUNCTION RE THE STEEL REPORT
1. I have before me a document headed "Application for an Interim Injunction" dated 27th May, 2014, by Mr F J (Bob) Hill BEM ("Mr Hill") requesting the Royal Court "to issue an Order whereby The Bishop of Winchester does not publish or circulate a document known as the Steel Report". Mr. Hill avers that he "represents", and the request is stated to be made on behalf of, HG, a lady elsewhere identified in the application as someone who is "autistic, living in the UK, unemployed, of no fixed abode". From the application it appears that Mr Hill considers that publication of the Report is "likely to cause HG harm".
2. It is not necessary for the purposes of consideration of the application for me to set out the background save to say that in 2008 HG made a complaint about inappropriate advances allegedly made to her by a Jersey Church Warden ("HG's complaint"). This led to a series of court proceedings and other procedures. The Steel Report is the fruit of an investigation by Dame Heather Steel, which followed the Korris review into Safeguarding in the Deanery of Jersey, and was itself designed to recommend to the Bishop of Winchester whether or not disciplinary complaints should be made against any member of the clergy in relation to matters arising out of HG's complaint.
3. In order for the application to be considered at all, it will be necessary for an Order of Justice to be issued. Rule 20/5 of the Royal Court Rules 2004 provides:-
"Signing of Orders of Justice
(1) An Order of Justice must be signed by the Bailiff or by an advocate or solicitor unless an interim injunction, arrêt entre mains or other judicial act is sought therein, in which case it shall be signed by the Bailiff.
(2) Any solicitor who applies to the Bailiff for an Order of Justice containing an interlocutory injunction must give a written undertaking to the Bailiff that he or she has instructed an advocate in relation to the proceedings''
4. As a Commissioner appointed by the Bailiff for a specified term I have power to act vice the Bailiff or Deputy Bailiff pursuant to Article 12(2) of the Royal Court (Jersey) Law 1948 (as amended) ("the 1948 Law"):-
"12 Powers of Commissioners
2) A Commissioner appointed by the Bailiff for a specified term may exercise, whether for the purposes of this Law or for any other purposes, such other judicial functions of the Bailiff as the Bailiff may from time to time authorize or require"
5. 5 The role of the putative signatory under Order 20/5 was authoritatively analysed by the Deputy Bailiff In the Matter of the Application of Stuart Syvret  JRC 263, whose material passages provide as follows:
"11. In the context of the long history of litigation before the Royal Court, this provision is relatively new, having been introduced in the changes in the Royal Court Rules in 1987. Up to that time, all orders of justice had to be signed by the Bailiff. In practice, but perhaps not in theory, this was a largely ministerial act, and no approval of the content of the Order of Justice could be assumed or implied from the fact that the Bailiff had signed it. His signature was merely an authorisation that the Order of Justice could be issued. Nonetheless, advocates would from time to time be asked to clarify the basis of the action or to confirm that professional standards had been met if there were a pleading of fraud or other prima facie scandalous material.
12. This requirement was considered in 1987 (see R&O 7651) to be an unnecessary, time consuming and therefore expensive procedure. It could not be guaranteed, of course, that an Order of Justice signed by an advocate would not be subject to an application for striking out under the relevant provisions of the Royal Court Rules - but equally, it had not previously been thought that the fact that the Bailiff had signed the Order of Justice to authorise its issue prevented such an application for strike out being brought. So the rule was relaxed. Nonetheless, it was not removed in its entirety. Rule 20/5 of the present Royal Court Rules is more detailed that the 1987 provision but for present purposes it is no different - a litigant in person is not permitted to sign an Order of Justice, whether it contains an application for interlocutory relief or not. What is the conclusion to draw from that? There is no authority of which I am aware on the point, which is why I have determined to deliver this judgment.
13. One possible conclusion would be that as the Bailiff's signature to all Orders of Justice before 1987 was largely ministerial in authorising the proceedings to issue, the same rule continued thereafter, and where the Bailiff was asked to sign an Order of Justice on behalf of a litigant in person, it was merely an authority for the proceedings to issue. Given, however, that the requirement for the Bailiff's signature on an Order of Justice where an advocate or solicitor was acting for the plaintiff had been removed, it is hard to see how a limited construction of the Rule could possibly be correct. The natural construction of the change in rule is that, whereas lawyers could broadly be expected to adhere to the normal rules of pleading, the same was not necessarily true of litigants in person who had no legal training, and there was a need to ensure that the court processes were not clogged up with proceedings that were defective on their face or otherwise improper. That is why, with litigants in person, the requirement for the Bailiff's signature on the Order of Justice was retained. I construe the effect of this rule accordingly.
14. Nonetheless, it is very important for a judge, when considering whether or not to sign an Order of Justice on behalf of a litigant in person to have regard to the fact that that putative litigant has a right to access to justice. This is true generally, but it is specifically true in relation to any claim that the putative litigant's European Convention rights have been breached. Furthermore, in exercising the discretion which is conferred by Rule 20/5, the Bailiff is to act in a Convention compliant way, and the Rule must be read down to ensure that it is Convention compliant. If, therefore, it is possible when reading an Order of Justice put before the Bailiff for signature, to ascertain or identify a cause of action, that Order of Justice should normally be issued by the Bailiff if so requested, even though it may subsequently be liable to be struck out by the Court on any of the usual grounds upon which an order of justice might be so struck out.
15. To the extent that the document which has been put before me is to be treated as an Order of Justice, I have therefore reviewed it against that test - namely whether one can properly identify a cause of action against named defendants, because if so, notwithstanding that it may have been poorly pleaded or inadequately particularised, it would be right to sign the Order of Justice and permit the proceedings to be issued so that the defendants can take what procedural steps they are advised might be appropriate, and the plaintiff resist them if he so wishes. This does not eschew the obligation on the Bailiff not to lend the authority of his office to documents which, in a legal sense, are on their face scandalous, vexatious or an abuse of the process of the court.
19. On the assumption that the document sent to me falls to be treated as an Order of Justice, and that I am being asked to sign it pursuant to Rule 20/5 of the Royal Court Rules 2004, I now examine the contents of that document.
23. The second objection to my signing the document as an Order of Justice is that it contains an amount of vexatious and scandalous comment. I use that language in the context of Rule 6/13 of the Royal Court Rules 2004, which is a rule itself modelled on what used to be Order 18 Rule 19 of the Rules of the Supreme Court....
24. By the word "vexatious", I have in mind claims which are obviously unsustainable. The word "vexatious" applies also to proceedings which are an abuse of the process (see E T Mailen Limited v Robertson  ICR 72,"
6. From that judgment (with which I am in respectful agreement) I derive and develop the following principles:-
(i) The signature of the Bailiff, Deputy Bailiff or authorised alternate is a judicial, and not only an administrative, act.
(ii) An Order of Justice should not be signed if it is on its face irredeemably malicious, vexatious or an abuse of the process of the Court. (''the triple criteria'').
(iii) Vexatious in legal parlance describes, inter alia, an unsustainable cause of action.
(iv) The putative signatory must give latitude to a document which may merely be inadequately pleaded or where the alleged cause of action is inadequately particularised when he seeks to determine whether it does or does not fall foul of the triple criteria or any of them. A defendant to such a claim always has the opportunity to apply to strike the Order for Justice out on the conventional grounds.
(v) There must therefore be some space between the approach taken when contemplating refusal of a signature to a proposed Order of Justice and that taken when contemplating a strike out of an Order once issued. The threshold must be higher in the former than in the latter case.
(vi) It must be borne in mind that a person is not lightly to be denied access to justice either as a matter of Jersey common law or by reason of Article 6 of the European Convention on Human Rights now incorporated into Jersey law. (However that right is not absolute Golder v UK , ECHR 524 at (38)).
7. In my view there are two insuperable obstacles in the path of Mr Hill when he seeks my signature to the proposed Order of Justice, as I construe it.
8. 8. The first obstacle is Mr Hill's own lack of locus or capacity.
9. 9. The Loi (1961) sur l'exercice de la profession de droit à Jersey ("the 1961 Law") provides:-
Dans la présente Loi, les mots "personne diplômée" désignent le Procureur-Général de la Reine, l'Avocat-Général de la Reine, un Avocat du Barreau ou un Écrivain de la Cour Royale, et les mots "personne non diplômée" désignent une personne autre qu'une personne diplômée.
(1) Toute personne non diplômée qui signera une bille ou instituera de quelque manière que ce soit une action devant les Cours de cette Ile sera coupable d'une contravention à la présente Loi :
Cependant les dispositions de cet alinéa ne s'appliqueront pas à l'acteur même.
La présente Loi ne déroge en rien à toute autre Loi conférant à une personne non diplômée le pouvoir de plaider ou de défendre une cause ou autrement d'agir relativement aux procès."
In consequence "Subject to certain customary and statutory controls.....the modern position is that prima facie all natural persons in the Channel Islands have the right to conduct litigation in their own name, and that all legal persons have the right to conduct litigation by their duly authorised officers or, if the court gives permission, employees and agents" 'Rights of Audience in Jersey and Guernsey and who should exercise them', Barclay and Hanson 2009 JGLR p47.
10. A litigant in person is, in the context of the Royal Court Rules 2004 "any litigant who is not represented by an advocate and who is therefore representing himself" (Leeds United Association Football Club Limited v Phone-In Trading Post Limited  JRC 141).
11. Mr Hill would not, accordingly, be entitled to represent HG in connection with the proposed application, save that, subject to the Court's discretion to control its own process, he might be able to act as a McKenzie friend to assist HG although not himself able to address the Court.
12. Materially he is a "personne non diplomee", neither Avocat or Ecrivain, who is seeking to institute proceedings before the Royal Court. This is prohibited by Article 2(1) of the 1961 Loi. That he may be doing so at HG's request does not alter that fact. She alone would be the "acteur" to whom the prohibition would not apply.
13. The second obstacle is provided by the status of the putative defendant.
14. It is well established that when a putative defendant is not resident in Jersey he can only be made subject to the jurisdiction of the Royal Court of Jersey if the plaintiff can obtain leave to serve him out of the jurisdiction pursuant to the Service of Process (Jersey) Rules 1994 ("the 1994 Rules") see State of Qatar v Al Thani  JLR 118 at 122).
15. The 1994 Rules provide so far as potentially material:-
"7 In certain cases service of summons allowed out of jurisdiction
Service out of the jurisdiction of a summons may be allowed by the Court whenever -
(b) an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction..."
16. The application avers that the Bishop of Winchester is considering how to publish the Report "in such a way as to minimise the impact on HG and the risk of harm to her". Any such publication would presumptively be in England (Halsbury's Laws, 5th Ed. Vol .32 para 567 (Place of Publication). However, the Bishop cannot be served out of Jersey in respect of any such publication in England where HG now resides (1994 Rules (7(b)). (And it would be an exercise in futility to prevent publication of the Steel report by the Bishop in Jersey only where she no longer resides).
17. I therefore conclude that on the face of the application for one or other or both of those reasons the cause of action is simply not viable. It is regrettable that I have to apply to it the description "vexatious" since I do not intend thereby to imply any improper motive on part of Mr Hill. But if the application could not in any circumstances succeed, it would not be consonant with justice for an Order of Justice to be signed.
Royal Court Rules 2004.
Royal Court (Jersey) Law 1948.
European Convention on Human Rights.
Golder v UK , ECHR 524.
Loi (1961) sur l'exercice de la profession de droit à Jersey.
Service of Process (Jersey) Rules 1994.
Halsbury's Laws, 5th Edition.